UMARHAYAT KHAN Vs. STATE
LAWS(RAJ)-1952-11-11
HIGH COURT OF RAJASTHAN
Decided on November 04,1952

UMARHAYAT KHAN Appellant
VERSUS
STATE Respondents

JUDGEMENT

Ranawat, J - (1.)THIS is a revision application by Umar Hayat Khan against the judgment of the Sessions Judge of Kotah, dated the 3rd April, 1950, by which an order of the City Magistrate of Kotah, dated the 19th January 1950, was upheld, convicting him of an offence under sec. 5 of the influx from Pakistan (Control) Act, 1949, and sentencing him to a fine of Rs. 51/- only. THIS case was first heard by one of us sitting singly, but as the points raised by the petitioner in his revision petition were of far reaching importance the case was referred to this Bench.
(2.)THE facts of this case are very simple. THE accused, who is Umar Hayat Khan, obtained a temporary permit from Pakistan some time in the month of November, 1948, and entered India under the terms of that permit and came to Kotah. THE period of the permit expired on the 8 (h of January, 1949 and ordinarily he should have returned to Pakistan before that date. In contravention of the terms of the permit he overstayed in India and did not return to Pakistan. He was, therefore, prosecuted under sec. 5 of the Influx from Pakistan (Control) Act. 1949.
The first objection of the petitioner in this application is that his conviction under the Influx from Pakistan (Control) Act, 1949, is illegal, because the permit under which he entered the Dominion of India had not been issued under the Act of 1949 and sec. 5 of the Act would not apply to the cases of permits which had not been issued under this Act. It may be noted that the permit which the accused had obtained in November, 1948, had been issued under the provisions of the Influx from Pakistan (Control) Ordinance (No. XXXIV of 1948), but subsequently on the 22nd of April, 1949, the Influx from Pakistan (Control) Ordinance of 1948 was replaced by the Influx from Pakistan Act No. 23 of 1949. By sec. 9 of the new Act the Ordinance was repealed. But all rulea made, actions taken or things done in exercise of any powers conferred by the Influx from Pakistan (Control) Ordinance of 1948 were saved by sec. 9 (2) of the Act of 1949, and it was provided that for all purposes such rules, actions or things should be defined to have been made, taken or done in the exercise of the powers conferred by the new Act as if the new Act had commenced on the day such order was made or such action was taken or such things was done. The arguments of the accused, therefore, have no force. The permit which had been issued under the Ordinance of 1948 and under the terms of which the accused entered India shall be deemed to be a permit issued under the Act of 1949, and the new Act shall be deemed to have commenced on the day that permit had been issued. The contravention of the permit which had been issued under the Ordinance, therefore, is made punishable under sec. 5 of the Act of 1949.

Secondly, it has been urged on behalf of the accused that the Influx from Pakistan Ordinance of 1948 could not extend to Kotah as at that time for the territories of the former Kotah State the Governor General could not make any Ordinances. It is therefore argued that the Ordinance had no legislative force so far as the territories of the former Kotah State were concerned and consequently the accused could not be punished for the contravention of the terms of the permit under the provisions of the Act 1949. This argument is very ingenious but we find that this has no basis. By the Instrument of Accession, which had been signed by His Highness the Maharao of Kotah long before the Ordinance No. 34 of 1948 came into force, it was provided as follows - "1. I hereby declare that I accede to the Dominion of India with the intent that the Governor-General of India, The Dominion Legislature, the Federal Court, and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Kotah such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India on the 15th day of August, 1947. 2. . . . . . . . . . . . . . . . 3. I accept the matters specified in the Schedule hereto as the matters with respect to which the Dominion Legislature may make laws for this State. "

In the Schedule attached to the Instrument of Accession under head B - External Affairs - in paragraph 2, it has been provided as follows - I "admission into and emigration and expulsion from, India, including in relation thereto the regulation of the movements in India of persons who are not British subjects domiciled in India or subjects of any acceding State, pilgrimage to places beyond India. "

It would be apparent from the provisions of the Instrument of Accession reproduced above that His Highness the Maharao of Kotah had agreed that the Governor General of India or the Dominion Legislature of India might make laws on the subjects which were given in the Schedule that had been appended to the Instrument of Accession. The subject of the control of influx from Pakistan obviously fell within para 2. of sec. 2 of the Schedule of the Instrument of Accession. The Dominion of India therefore had power to make laws on this subject for the territories of the former Kotah State as well. The Ordinance No. 34 of 1948 therefore cannot be said to be ultra vires. The learned counsel of the accused had in this connection taken a different line of argument before the Single Judge, as it appears from the order of reference. According to him, the term "dominion Legislature" does not include the Governor General and consequently even though the Dominion Legislature might have had the power to legislate for Kotah State the Governor General had no such power. The term "dominion Legislature" so far as the Government of India Act, 1935, is concerned has been used for the Chambers of Legislature and the Constituent Assembly was also termed as Dominion Legislature. This argument arises only when paragraph 3 of the Instrument of Accession is looked at and paragraph No. 1 is ignored. In paragraph 1 of the Instrument of Accession it has been clearly specified that the Governor General of India shall exercise in relation to the Kotah State such functions as might be invested in him by or under the Government of India Act, 1935, as in force on the 15th day of August 1947. Such powers were limited by the provision that they were to be exercised for the purpose only of the Dominion of India and subject to the terms of the Instrument of Accession. It would be noticed that according to the terms of the Instrument of Accession signed by His Highness the Maharao of Kotah the subject of control of influx from Pakistan Was the one on which Kotah State had acceded its jurisdiction to the Dominion of India. The Governor General of India, therefore, could make Ordinances on that subject in accordance with the Government of India Act, 1915. as it stood on the 15th of August 1947. The learned counsel of the accused, it appears, tried to look at one part of the Instrument of Accession only and he tried to ignore the other part of the Instrument of Accession which went against his case. This is not the correct way of approach. The Instrument of Accession should be read as a whole and it should be interpreted as a whole. The result is that the conviction of the accused under sec. 5 of the Influx from Pakistan (Control) Act, 1949, cannot be held to be illegal.

This revision therefore fails and is dismissed. .



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