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Luis Caetano Menzes Vs. State of Madras - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 9092 of 1950
Judge
Reported inAIR1952Mad734; (1952)2MLJ237
ActsConstitution of India - Articles 5 and 14; Madras Prohibition Act, 1937 - Sections 54
AppellantLuis Caetano Menzes
RespondentState of Madras
Appellant AdvocateF.S. Vaz, Adv.
Respondent AdvocateAdv. General for ;Government Pleader and ;Narayana Nair, Adv. for ;State Prosecutor
Excerpt:
.....exempting him from the provisions of the act. the petitioner alleges that european nationals of foreign states are given permits without any restriction but persons in the position of the petitioner who are subjects of a foreign european power like portugal but who are not europeans are denied the same treatment. indians and citizens of the french and portuguese settlements in india should be granted permits only in exceptional cases on the production of medical certificates and subject to the other restrictions now in force for the grant of permits to indians, permits may be granted to other nationals coming under category (2) and who are 21 years or above as in the case of non-domiciled europeans without drawing any distinction between non-domiciled europeans and non-domiciled..........in india; 2. foreign national excluding citizens of the french and portuguese settlements in india; indians and citizens of the french and portuguese settlements in india should be granted permits only in exceptional cases on the production of medical certificates and subject to the other restrictions now in force for the grant of permits to indians, permits may be granted to other nationals coming under category (2) and who are 21 years or above as in the case of non-domiciled europeans without drawing any distinction between non-domiciled europeans and non-domiciled asians as regards the quantity to be allowed.' 4. the petitioner's counsel challenges the validity of the classification adopted in this government order. he contends that there could be no warrant for this arbitrary.....
Judgment:

Rajamannar, C.J.

1. This is an application by one Luis Caetanao Menezes for the issue of a writ of prohibition, prohibiting the State of Madras from exercising any of the powers derived from Madras Act X of 1937 (the Madras Prohibition Act), or to issue a writ of mandamus directing the Board of Revenue to issue a permit to the petitioner. In the affidavit in support of the application, the petitioner states that he is a Portuguese subject born at Sholapur of parents both of whom were born in Goa, that his birth certificate proves his Portuguese nationality and his name is inscribed in the register of Portuguese subjects maintained at the Consulate at Madras; that according to the laws of his country he is entitled to all the rights and privileges to which any citizen born in any Portuguese province in Europe is entitled to without any restrictions or limitations whatsoever. It is further stated that after the Madras Prohibition Act was extended to the City of Madras, the petitioner who was residing at Royapuram, Madras, applied to the Board of Revenue through the Collector of Madras for a permit for the possession and consumption of liquor stating that he was a Portuguese subject and he was accustomed to partake of foreign liquor for over thirty years; that under the rules framed under the said Act the Board of Revenue is empowered to grant permits and in so granting or refusing the permits the Board of Revenue from time to time follows the directions given to the Board by the Government, that the application of the petitioner was eventually refused on the 18th November 1948 for the reason that there was no good ground for exempting him from the provisions of the Act. The petitioner alleges that European nationals of foreign states are given permits without any restriction but persons in the position of the petitioner who are subjects of a foreign European power like Portugal but who are not Europeans are denied the same treatment. This he charges is discriminatory on the part of the State and it is contrary to Article 14 of the Constitution.

2. The Assistant Secretary, Board of Revenue and Excise, has sworn to an affidavit on behalf of the State, that the State is not concerned with the laws of Portugal and the right of the petitioner under those laws; and justifying the refusal on the ground that the applicant was treated as an Indian as there was no clear proof that he was a non-Indian.

3. At the time of the hearing of the application, the learned Advocate brought to our notice the latest Government Order on the subject of issue of liquor permits (G. O. No. 517 Development dated 2nd February 1951). The following is the material portion of this order:

'The Government have examined the various classifications now in force for grant of liquor permits and direct that in future applicants for liquor permits should be divided into the following two classes:

1. Indians and the citizens of the French and Portuguese settlement in India;

2. Foreign national excluding citizens of the French and Portuguese settlements in India;

Indians and citizens of the French and Portuguese settlements in India should be granted permits only in exceptional cases on the production of medical certificates and subject to the other restrictions now in force for the grant of permits to Indians, permits may be granted to other nationals coming under category (2) and who are 21 years or above as in the case of non-domiciled Europeans without drawing any distinction between non-domiciled Europeans and non-domiciled Asians as regards the quantity to be allowed.'

4. The petitioner's counsel challenges the validity of the classification adopted in this Government Order. He contends that there could be no warrant for this arbitrary classification according to which the citizens of the French and Portuguese settlements in India, that is settlements of independent foreign coun-tries are classed along with Indian citizens. Foreign national would include nationals of every foreign country and it is for the Government of the country concerned to decide who belonged to a particular nationality.

5. The learned Advocate General did not contest the position that it is for the concerned Government to claim any person among its nationals. He brought to our notice the statement of the law on the subject in some of the recent text books on International Law. In the thesis on British Nationality by Clive Parry we have the following:

'The term 'nationality' is one belonging, in strictness, rather to public international law than to the law of England or the United Kingdom. In the broad sense it connotes the quality of being permanently within the personal jurisdiction of a State, whether within or without the territory of that State. Thus the 'nationals' of a State are all those persons, natural or artificial, which it has the right to protect abroad, with respect to whose conduct abroad it has the' right to legislate, and whom it is under a duty to receive back into its territory if a foreign State desires to deport them. Who are its nationals, however, is entirely a matter for the law of a State to decide.'

6. Schwarzenberger in his book on International Law says substantially the same :

'In principle, every sovereign State is free to determine for itself to whom it wishes to grant nationality.'

The learned author points out that the fundamental basis of a man's nationality is his membership of an independent political community and it is a continuing legal relationship between the sovereign State on the one hand and the citizen on the other. It is therefore clear that on the allegations made by the petitioner in his affidavit which have not been denied on behalf of the State, the petitioner is a Portuguese national. He would therefore fall prima facie within the category of foreign nationals in the second of the two classes referred to in the Government Order of 2nd February 1951. If so, what then is the justification for excluding him from this category because he happens to be a citizen of a Portuguese settlement in India? Portuguese settlements in India though geographically situated in India must be treated as part of the territory of Portugal. The learned Advocate General was not able to convince us as to how this exclusion can be justified as not being discriminatory. The learned Advocate General gave us an opportunity of looking into the Government file connected with this question. We find therefrom that the view that we are inclined to take, namely, that the only classification which will not offend Article 14 of the Constitution would be the classification between Indian citizens on the one hand and foreign nationals on the other was also taken by the departments concerned; but evidently the Government came to a different conclusion and decided to exclude the citizens of the French and Portuguese settlements in India on the ground that the grant of permits to them might lead to abuse. It is not clear how it would, but even assuming it would, we do not think that that would be sufficient in law to warrant an arbitrary classification excluding particular foreign nationals from the general category of foreign nationals.

7. We, therefore, must hold that the Statewas wrong in refusing to grant a permit to thepetitioner. We, therefore, direct the State todispose of his application in the light of thisjudgment. There will be no order as to costs.


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