Decided on November 30,1955

Abdul Ghani Hussain Khan Appellant


Chaturvedi, j. - (1.) THIS is an application under Article 226, Constitution of India praying for the issue of a writ of Mandamus or any other writ or order of a suitable nature commanding the State not to interfere with the applicant's rights to move freely and to reside and settle in Indore or any part of the territory of India recognising him to be an Indian national.
(2.) THERE is no doubt that the applicant was born and brought up in Indore City where he had his ancestral home and had immovable property. He obtained a no -objection certificate for going to Pakistan from the Collector, Indore on 10 -3 -1949. According to him, he was anxious to purchase cement in Pakistan and import it into India. He, therefore, obtained a temporary permit from Pakistan's Permit Officer, Bombay, on 18 -4 -1949. This permit was valid up to 14 -7 -1949. On receiving a message from a dealer in cement in Pakistan, the applicant left for Karachi via Bombay on 21 -6 -1949 with a draft of Rs. 7000/ - from the Indore Bank. The applicant reached Karachi on 23 -6 -1949 by the plane of Air India. The bargain in cement having failed, he wanted to return to India, and, therefore, on 11 -7 -1949, the applicant states that he applied to the High Commissioner for India in Pakistan for a permit for permanent return. Meanwhile, the no -objection -certificate which had been given by the Indian authorities prior to 15 -5 -1949, had been cancelled, and the High Commissioner for India informed the applicant that no permit for permanent return could be given to him. The applicant, therefore, was compelled to Obtain extension of his permit till 17 -9 -1949. After several attempts, the applicant states that he obtained a temporary permit from the High Commissioner for India in Pakistan Karachi, on 20 -9 -1949. It was valid only for one month. With this permit the applicant returned to Indore and then applied to the Collector, Indore, for his permanent stay in Indore. The Collector recommended for grant of permit for permanent return. But the applicant did not succeed in getting a permit for permanent return to Indore. The applicant was thus, compelled to go on or about 20 -10 -1949 to Karachi where he stayed for a month and a half. He enquired at the Indian High Commissioner's Office, but the office informed him that they hart received no orders about his permit. As the Karachi Police was instituting enquiries, the applicant states that he left Karachi for Dacca in December, 1949 and stayed in Khulna for nearly three years, and then shifted to Dacca. He returned back to Karachi in March 1953 and again enquired at the Indian High Commissioner's Office regarding the receipt of any order of the Government of India in his case. He was informed that no orders had been received. On 12 -1 -1954, the applicant says that he filled form 'I' and sent it along with his application to the High Commissioner for India, in Pakistan, Karachi, but he was not informed of the action taken upon his application. He then sought a passport from the Pakistan Government declaring himself to be a Pakistan national, and on the authority of passport No. 121224 dated 1 -7 -1953 and a visa he returned to Indore and could stay up to 23 -3 -1954. The applicant also states that he is an Indian national, owes complete allegiance to the Constitution of India and has a right to move freely and to reside and settle in any part of the territory of India; that he never acquired the citizenship of Pakistan; that he never migrated to Pakistan and his forcible stay there was only temporary and was falsely made by him under the compelling circumstances. He, therefore, requests that his fundamental rights under Article 19(d)(e), Constitution of India should not be allowed to be assailed. He should be recognised an Indian national and a suitable writ may be issued to that the Government of India may not interfere with his rights to move freely and to reside and settle in Indore or in any part of the territory of India. The applicant's application to the Suba of Indore on 5 -10 -1949, states that his last trip to Pakistan was intended merely to visit his maternal uncle's son who was not keeping good health. He reiterated that he had never left Madhya Bharat for communal considerations or for fear of communal trouble, and he never intended to live in Pakistan as a national of that country. He requested for a permit to enable him to stay at Indore without being guilty of any breach of rules. The petition also mentioned that the provisions of Influx From Pakistan (Control) Act 1949 and the rules made there under and the Passport Act of 1920, and the rules made there under in so far as they are made applicable to Indian nationals are inconsistent with Article 19(d)(e) of the Constitution and, are, therefore, void.
(3.) ON behalf of the Government, the application is opposed on several grounds. The first ground is that no writ can be issued in favour of the Petitioner on the ground that the office of the High Commissioner for India in Pakistan is not within the jurisdiction of this Court. The second point is that the impugned order was made by the High Commissioner for India before the Constitution came into force and Article 226 of the Constitution cannot be invoked with a retrospective effect. Then it is stated in the return that the Petitioner had applied to the High Commissioner for India in Pakistan in September, 1949 for a temporary permit to visit India, as a Pakistan national and then he returned to Pakistan in October, 1949, where he admittedly resided for a period exceeding four years. The Petitioner has now visited India on a passport granted to him by the Pakistan Government and the visa expired on 23 -3 -1954. So it must be assumed that the Petitioner had accepted by his conduct the nationality of Pakistan. Consequently he cannot he the application for being recognised an Indian national. The Petitioner in his application before the Suba of Indore did not mention that he was visiting Pakistan for his business, but stated that he was to go to see an ailing relation. Now he states that he had gone there for his business, and so he cannot call in aid the no -objection -certificate which used to be granted in the case of persons visiting Pakistan to see ailing relations or to escort back to this country their family. The Petitioner appears to have failed to produce before the High Commissioner for India in Pakistan the no -objection -certificate issued to him by the Suba Indore, on 10 -3 -1949. On 29 -8 -1949, one Jahangir on behalf of the Petitioner, applied to the Suba, Indore, for a duplicate copy of the said no -objection -certificate on the ground that the Petitioner had lost it in Pakistan. The Petitioner admitted that the duplicate copy of this certificate could be of no assistance to him for want of copy of his photograph duly certified. Under the circumstances, the Petitioner's complaint that the order of the High Commissioner for India in Pakistan was arbitrary and unjust was unwarranted. It is also stated that the Petitioner suppressed the circumstances under which the High Commissioner for India in Pakistan declined to grant Petitioner the permit, and, therefore the Petitioner has forfeited his remedy in the exercise of the extra -ordinary jurisdiction of the High Court. It is further stated in the return that the omission to produce the no -objection -certificate before the High Commissioner for India in Pakistan, without satisfying that appropriate authority that the certificate was lost, coupled with the conduct of the Petitioner in dealing with the situation as a Pakistan national places his case beyond the purview of Article 226 of the Constitution. Therefore his petition should be rejected. It was added that the Petitioner's visit to India in 1949 and return to Pakistan as a Pakistan national argues against his being an Indian national. The Petitioner had been declared on 29 -12 -1949 an evacuee by the Custodian of Evacuee Property, Indore, and as such he lost all rights of Indian national. The fact that the Collector recommended the Petitioner's case in October, 1949 is of no consequence as the ultimate decision in the matter rested with the Government of India, and as the Petitioner returned to Pakistan on 20 -10 -1949, the case could not be carried further to the Government of India. It was further remarked that the provisions of Influx from Pakistan (Control) Act of 1949 as saved by Act of 1952 are not ultra -vires the Constitution, in so far as they relate to Pakistan nationals. The provisions of the Passport Act and Rules are also valid and constitutional. It was denied that any Fundamental Right guaranteed under Article 19(d)(e) was infringed.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.