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IN THE HIGH COURT OF ALLAHABAD
Raghubar Dayal and P. L. Bhargava, JJ.
SHABBIR HUSAIN - Appellant
Versus
STATE OF U.P - Respondents
Criminal Misc. 1519 Of 1950
Decided On : 09/26/1951
The applicant, a citizen of India, was issued a temporary permit to return to India from Pakistan, where he had gone on a temporary visit. He overstayed his permit and was convicted of an offence under the Influx from Pakistan (Control) Ordinance. He was subsequently ordered to be removed from India under the Influx from Pakistan (Control) Act. The applicant challenged the order, arguing that as a citizen of India he could not be ordered to be removed from the country and that the provisions of the Act that allowed for his removal were void as they infringed his fundamental rights under the Constitution of India.
Fact of the Case:
The applicant, Shabbir Husain, was born and brought up in India. In 1948, he went to Pakistan on a temporary visit to sell goods that he had sent there. Before leaving India, he declared that he would return after disposing of his goods. He was granted a temporary permit to return to India, which was valid for two months. However, he overstayed his permit and was convicted of an offence under the Influx from Pakistan (Control) Ordinance. Subsequently, he was ordered to be removed from India under the Influx from Pakistan (Control) Act.
Finding of the Court:
The court held that the applicant was a citizen of India and that he could not be ordered to be removed from the country. The court also held that the provisions of the Influx from Pakistan (Control) Act that allowed for the applicant's removal were void as they infringed his fundamental rights under the Constitution of India.
Issues: 1. Whether the applicant was a citizen of India. 2. Whether the provisions of the Influx from Pakistan (Control) Act that allowed for the applicant's removal were void as they infringed his fundamental rights under the Constitution of India.
Ratio Decidendi: 1. The court held that the applicant was a citizen of India because he was born and brought up in India and had not migrated to Pakistan after the first day of March 1947. 2. The court held that the provisions of the Influx from Pakistan (Control) Act that allowed for the applicant's removal were void as they infringed his fundamental rights under the Constitution of India, particularly his right to move freely throughout the territory of India and to reside and settle in any part thereof.
Final Decision: The court ordered that the applicant be released from custody and that the order for his removal from India be set aside.
( 1 ) THIS is an application under Section 491, Cr. P. C. and Article 226 of the Constitution praying for a writ in the nature of habeas corpus to be issued against the State of Uttar Pradesh and the superintendent, District Jail, Bijnor, ordering them to produce the applicant before the Court and release him from wrongful custody in which he is detained and for a writ in the nature of mandamus against the State of Uttar Pradesh directing it to set aside its order for the removal of the applicant from India.
( 2 ) THE affidavit filed along with the application states that the applicant is a resident of village kalyanpur, police station Nagina, district Bijnor in the state of Utsar Pradesh from his birth, that he went to Lahore in 1948 in connection with his business, that permit rules happened to be introduced during bis stay there and that when he wanted a permit for permanent return to India the authorities just issued a temporary permit which was valid upto 1-1-1949. The affidavit proceeds to state that the applicant, however, overstayed and was convicted of the offence under section 5, Influx from Pakistan (Control) Ordinance No. XXXIV of 1948.
( 3 ) THE applicant represented his case to the U. P. Government for permanent resettlement in india. He was given to understand that his case had been rejected by the State of Uttar Pradesb and that the State had passed an order that he be removed from India and sent back to Pakistan under Section 7, Influx from Pakistan Control Act, XXIII of 1949. In furtherance of this order he has been confined in the District Jail, Bijnor since 21-7-1930.
( 4 ) THE applicant submits that the order of his removal from India was beyond the competence of the State Government and that such an order could not be passed by either the State or the central Government against the applicant as he is a citizen of India within the meaning of that word in the Constitution and he never migrated to Pakistan and never became a citizen of that state.
( 5 ) NO counter affidavit has been filed on behalf of the State.
( 6 ) THE learned Government Advocate filed the application presented by the applicant to the deputy High Commissioner of India at Lahore for the issue of a permit for permanent return to india and the applicants affidavit which was filed with that application.
( 7 ) THE affidavit sworn by Shabbir Husain on 21 7-1948 at Bombay mentioned that he was an indian subject residing then in Bombay and that he was going to Lahore (Pakistan) for business purposes and that he would return to India after disposing of his goods in two months. He, however, stated that he was making the affidavit to enable him to go to Pakistan and that he be permitted to return to India from Pakistan. The application that he made to the Deputy High commissioner in Pakistan mentioned the same thing. The officer dealing with the application noted:
although the attached document is only an affidavit and given before a Bombay Magistrate and not of his own district. It seems that he was in Bombay on business snd decided to leave direct to west Pakistan. Seems a fairly genuine case and if you agree I prrpose to give him two months permit and verify in the meantime. At this stage I would like him to carry no-objection certificate from Pakistan in case we do not want him there. "
7a. His superior officer approved of the suggestion of issuing two months permit and remarked that if he was prima facie an Indian national the suggested certificate from Pakistan cannot be called for. It would appear from the applicants affidavit sworn at Bombay, from his representation in the application for permit to return to India and from the affidavit filed along with the petition that he never intended to give up his abode in this country and to settle in pakistan.
( 8 ) BEFORE I deal with the questions of law and fact to be decided in this application I may briefly refer to the law and rules concerning the entry into India of persons fro
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