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PATNA HIGH COURT
Shearer and Sarjoo Prasad JJ.
Sayeedah Khatoon
Versus
State Of Bihar
Miscellaneous Judicial Case No. 140 of 1950 ; 170 of 1950 ;
Decided On : OCTOBER 13, 1950
ARTICLE 226 - CITIZENSHIP - BIHAR ADMINISTRATION OF EVACUEE PROPERTY ORDINANCE, 1949 - ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - WRIT OF CERTIORARI - MANDATORY INJUNCTION - DOMICILE - EVACUEE - WAKF PROPERTY - FUNDAMENTAL RIGHTS - JURISDICTION OF HIGH COURT - INTERPRETATION OF STATUTES - SUMMARY DISMISSAL OF PETITIONS - SUMMARY DISMISSAL OF APPEALS - IRREPARABLE INJURY - WRIT OF MANDAMUS - WRIT OF PROHIBITION - INJUNCTION - ARTICLE 75 (V), AUSTRALIAN CONSTITUTION ACT, 1900 - SECTION 28, ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - SECTION 11 (2) (A), BIHAR ADMINISTRATION OF EVACUEE PROPERTY ORDINANCE, 1949 - SECTION 24, 25 & 28, BIHAR ADMINISTRATION OF EVACUEE PROPERTY ORDINANCE, 1949 - SUMMARY OF JUDGMENT: The Patna High Court, consisting of Shearer, J. and Sarjoo Prasad, J., delivered a judgment on two writ petitions filed under Article 226 of the Constitution of India. The petitioners challenged the orders passed by the Deputy Custodian of Evacuee Property under the Bihar Administration of Evacuee Property Ordinance, 1949, and the subsequent Administration of Evacuee Property Act, 1950. The petitioners contended that the impugned orders were illegal and violative of their fundamental rights. The court held that the petitioners were citizens of India and, therefore, entitled to the protection of their fundamental rights. The court further held that the Deputy Custodian had misdirected himself in taking possession of the petitioners' property and that the petitioners were entitled to a mandatory injunction requiring the opposite party to forthwith make over the property to them. The court also held that Section 28 of the Act, which purported to take away the right of a citizen to obtain a prerogative writ, was void in so far as it was repugnant to Article 226 of the Constitution. The court allowed the petitions and issued a mandatory injunction in favor of the petitioners.
Fact of the Case:
The petitioners, Kumar Rani Sayeedah Khatoon and her three sons, filed two writ petitions under Article 226 of the Constitution of India. Kumar Rani Sayeedah Khatoon was a citizen of India who had gone to Pakistan in 1948 for medical treatment. She returned to India in 1950 and was served with a notice by the Sub-Inspector of Police requiring her to return to Pakistan within seven days. The petitioners' sons were the joint mutwallis of certain wakf property, which was taken possession of by the Deputy Custodian of Evacuee Property in 1949.
Finding of the Court:
The court held that the petitioners were citizens of India and, therefore, entitled to the protection of their fundamental rights. The court further held that the Deputy Custodian had misdirected himself in taking possession of the petitioners' property and that the petitioners were entitled to a mandatory injunction requiring the opposite party to forthwith make over the property to them. The court also held that Section 28 of the Act, which purported to take away the right of a citizen to obtain a prerogative writ, was void in so far as it was repugnant to Article 226 of the Constitution.
Issues: 1. Whether the petitioners were citizens of India and, therefore, entitled to the protection of their fundamental rights? 2. Whether the Deputy Custodian had misdirected himself in taking possession of the petitioners' property? 3. Whether the petitioners were entitled to a mandatory injunction requiring the opposite party to forthwith make over the property to them? 4. Whether Section 28 of the Act, which purported to take away the right of a citizen to obtain a prerogative writ, was void in so far as it was repugnant to Article 226 of the Constitution?
Ratio Decidendi: 1. The court held that the petitioners were citizens of India and, therefore, entitled to the protection of their fundamental rights, relying on the principle that a married woman takes the domicile of her husband and cannot, during the continuance of the marriage, acquire another domicile. 2. The court held that the Deputy Custodian had misdirected himself in taking possession of the petitioners' property, relying on the definition of "evacuee" in the Ordinance and the fact that the petitioners were citizens of India. 3. The court held that the petitioners were entitled to a mandatory injunction requiring the opposite party to forthwith make over the property to them, relying on the principle that a citizen of India is entitled to hold and enjoy property. 4. The court held that Section 28 of the Act, which purported to take away the right of a citizen to obtain a prerogative writ, was void in so far as it was repugnant to Article 226 of the Constitution, relying on the principle that a statute which takes away the right of a citizen to obtain a prerogative writ is void.
Final Decision: The court allowed the petitions and issued a mandatory injunction in favor of the petitioners.
Shearer, J.
1. These two applns. which have been heard together are applns. under Article 226 of the Constitution. Very elaborate arguments have been addressed to us by Sir Sultan Ahmed, who appears in Support of one of the applns. & by Mr. P. R. Das, who appears in support of the other. Mr. P. R. Das, for instance, invited us to declare that the Bihar Administration of Evacuee Property Ordinance, 1949, was an unconstitutional law. It is, however, quite unnecessary to go into this point or into some of the other points which were raised, & the applns. can be very shortly disposed of. The petnr. in Misc. Judl. Case No. 170 of 1950 describes herself as Kumar Rani Sayeedah Khatoon, wife of Captain Maharaja Kumar Gopal Saran Narayan Singh. Kumar Rani Sayeedah Khatoon landed at the Palam Air Port in New Delhi on 14-5-1950. She was in possession of a permit granted by the High Comr. for India in Pakistan, which entitled her to remain in India permanently. She was, therefore, admitted, & proceeded to Gaya where her husband resides. On 19-5-1950, in accordance with the instructions contained on her permit, she made the permit over to the Sub-Inspector in charge of the police station within the jurisdiction of which the Maharaja of Tikari resides.
2. On 23 7-1950, a notice was served on her by the Sub-Inspector stating that the High Comr. for India in Pakistan had withdrawn her permit & requiring her to return to Pakistan within seven days. It was further stated in the notice that, in the event of her failing to do so, she would be prosecuted. The learned Govt. Advocate has not been as fully instructed as he ought to have been, & is not in a position to tell us exactly what the nature of the prosecution, which was contemplated, was. As will appear presently, it is quite clear that in the appln. which she made for this permit, the petnr. did not make any statement which was untrue. It appears that she originally went to Karachi in the middle of 1948 & at the end of that year, being desirous to pay a visit to her family in India, applied for and obtained a temporary permit. Presumably she did this in order to be able to go back to Pakistan & presumably, in order to obtain such a permit, she stated that she was domiciled in Pakistan. This statement, as will also appear presently, was erroneous & may conceivably have been untrue.
3. I was at first disposed to take the view that the appln. was premature, & it would have been premature if it had been clear that the authorities intended to prosecute her & did not intend to make an order for her deportation until the conclusion of the criminal trial. Sir Sultan Ahmed, for the petn. has, however, pointed out that orders for deportation, which in England can only be made by a Secretary of State, in the case of persons who have migrated to India from Pakistan, be or at any rate are being made by quite subordinate officials including Sub-Inspector of Police. On further consideration I accept the contention of Sir Sultan Ahmed that the order which was served on the petnr. was, in substance, an order for her deportation. It is well settled that, when an order of that kind is served on a person residing in Great Britain or the United States of America, that person, if he can make out a prima facie case that he is a citizen & not an alien, is entitled to a writ of certiorari &, on the return to that writ being made, to a judicial determination of the question of his status. The petnr. contends that she is a citizen of India, & the contention is well grounded. The petnr. was born in India, & is domiciled in India. On marriage, a woman takes the domicile of her husband, & during the continuance of the marriage at least, cannot, by any act of hers, acquire another domicile. That is, & always has been, the British law, & was incorporated into British law from the Canon law which, in matrimonial matters, regulated the conduct of Christians throughout the whole of Western Christiandom. It is obvious
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