The State of Bihar v. Kumar Amar Singh and Others

J agannadliadas J. by Kumar Rani alone: Both these applications were

allowed by the High Court and hence these appeals by the State on leave granted by the High Court. These two connected appeals came up for hearing be-fore this Court· on the 26th and 27th October, 1953. This Court after hearing counsel on both sides was of the opinion that one of the essential facts (to be men-tioned in detail herein below when dealing with Ap-peal No. 97) requisite for a proper decision of Appeal· No. 97 had been assumed without investigation and that it was necessary to hr:ve a finding thereupon after taking evidence. Tliis Court accordingly re-manded Appeal No. 97 to the High Court to submit a finding and directed that on the receipt of the finding both the appeals (Appeals Nos. 97 and 98) should be heard together. The finding has now been received and the appeals have been reheard. It is necessary . at this stage ~to men ti on that. the ad voe ate who a p-peared for the respondents in both the appeals at the prior hearing appeared before us at this hearing and stated that he had been instructed to ·withdraw his appearance in these appeals and to allow the hearing to proceed ex parte.

The preliminary facts having been stated as above, it will now be convenient to deal with these two ap-peals separately. Appeal No. 98 which raises the fundamental question as to the continuing citizenship of Kumar Rani will be taken up first.

Civil Appeal No. 98 of 1952.

. This appeal arises out of the application to the High Court dated the 28th July, 1950, challenging the validity of the order dated the 23rd July, 1950, issued by the Sub-Inspector of Police, Ga ya. This order is _challenged on the ground that Kumar Rani was, and throughout· continued to be, a citizen of India and that the order dated the 23rd July, 1950, which, in 1~55 substance, amounted to an order of her externment ., f d f rom I n d ia, was in violation o fK umar R ams un a-TheStateofBiTtar v. mental right under article 19 of the Constitution asa Kumar Amar citizen of India.· The question that arises is whether, Singhandothm in the circumstances, Kumar Rani was a citizen of - India at the date of the order. The contention of JagannadhadasJ. Kumar Rani is that though it is a fact that she did go to Pakistan in the year 1948, she went there only for a temporary purpose, viz. for securing the medical treatment of a reputed Hakim and that she was al-ways and continued to be a citizen of India and that, therefore, the High Commissioner for India in Pakis-tan had no power to cancel the permit issued to her.

As regards her allegation that when she first went to Karachi in July, 1948, she did so temporarily for the purpose of medical treatment, the learned Judges of the High Court were not inclined to accept her story .

. But, all the same, they held that she was and con-tinued to be a citizen of India, ~n the ground that she was born in India and that her domicile continued to be that of her husband, Captain Maharaj Kumar Gopal Saran Narayan Singh, who, it is not disputed, _throughout continued to be in India. The learned Judges of the High Court apparently had article 5 of the Constitution in mind and acted on the view of the English law that the wife's domicile continues· throughout to be that of her husband during the con-tinuance of marriage. It appears to us, with respect, that the learned Judges of the High Court completely overlooked article 7 of the Constitution. The rele-vant portion of article 5 of the Constitution says as follows: · ·

"At the commencement of this Constitution, every person who has his domicile in the territory of India and who was born in the territory of India shall be a citizen of India".

In the view of the High Court since Kumar Rani was born in India and had the Indian domicile of her hus-Land, she was a citizen of India. But article 7 says:

"Notwithstanding anything in article 5, a person

1264 SUPREME;CO.U:(lT REPORTS [1955]

1955 who has after the first day of March, 1947, migrated Th'e ·state of Bihar from the territory of India to the territory now in-

v. cluded in Pakistan shall not be deemed to be a citizen Kumar Amar· of India".- Singh ana' others There is a proviso to this article which will be Jagannadhadas J. noticed presently. But before noticing the proviso and

its effect, it is necessary to mention the following facts which may be taken to have been made out on the record. (1) Kumar Rani went to Karachi in July, 1948. (2) Her story that she went there temporarily for medical treatment has been doubted by the High Court _and appears to us to be unfounded. (3) When she came to India in December, 1948, she did so on a temporary permit stating in her application for the said permit that she was domiciled in Pakistan and accordingly representing herself to be a Pakistani .J. national. ( 4) She went back to Pakistan in April, 1949, on the expiry of that temporary permit. (5) She made an attempt to obtain a permit ·for permanent return to· India only after steps had been taken to vest the property in the Custodian and after the same was taken possession of. There can be no doubt on these facts that she must be held to have migrated from the territory of India after the 1st March, 1947. Even if therefore article 5 can be said to be applicable to her on the assumption that Captain Narayan Singh was her husband and that her domicile was that of her husband, the facts bring her case under article 7. Article 7 clearly overrides article 5. It is peremptory in its scope and makes no exception for such a case, i.e., of the wife migrating to Pakistan leaving her hus-band in India. Even such a wife must be deemed not to be a citizen of India unless the particular facts bring her case within the proviso to article 7. This proviso is as follows :

"Provided that nothing in this article shall apply to a person who, after having so migrated to the terri-tory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law".

It is contended with reference to this proviso that since she m fact returned under a permanent permit, 1955 she is entitled to the benefit thereof and that the ·The State of Bihar subsequent cancellation of the said permit is both v. illegal and irrelevant. Rule 10 of the Permit System Kumar Amar Singh and others Rules, 1949, framed by the Central Government under section 4 of the Influx from Pakistan (Control) Act, Jagannadhadas j, r 1949, provides that a permit for permanent resettle-

ment in India may be granted by the High Commis-sioner or Deputy High Commissioner only after secur-ing the agreement of the State or the Province where the applicant intends to settle. Rule 29 provides that every permit issued under the rules shall be liable to cancellation at any time, without any reason being assigned by the issuing authority. In the present case, ::he permit has been cancelled in a reasoned order on the ground that, on the facts of the case, the consent of the State Governmei1t concerned should have been obtained before the permit could be issued. This is a case, therefore. not of a valid permanent permit hav-ing been issued and the permit holder returning ro India on· the strength thereof and .. the same. having been arbitrarily cancelled. It is a case of an un-authorised issue of an invalid permit which has been properly cancelled. Hence the proviso to article 7 can have no possible application. The applicant, is, there-fore, not a citizen of India and the order passed by the Sub-Inspector of Police, Gaya, dated the 23rd July, 1950, · directing Kumar Rani to leave India was accordingly valid. This appeal must therefore succeed.

Civil Appeal f!o. 97 of 1952.

This appeal ·arises out 'of the application to the High Court dated the 5th July, 1950, challenging the validity of the notification dated the 2nd September, 1949, · issued by the · Deputy Custodian, · under the Bihar Administration of Evacuee Property Ordinance, 1949, declaring the wakf estate ·as evacuee property and taking posse~sion thereof. Three main grounds on which this has been contested are as follows: (1) Kumar Rani was not an evacuee. (2) She had written a letter dated the 2nd June, 1949, addressed · to he·r secorid · son, 'Kurriar Fateh Singh, whereby she·' relin--

· 1266 ·,SUPREME '.COURT.1REP.ORTS [1955]

1955 quished ·the ·office of mutwidli · in the .wakf estate, and •q'Jie-State of·Bihar therefore by virtue ·of the. said "letter and. in pursuance

·v. of the terms .of the original deed of . wakf, her three ··Kumar •Amar sons, respondents : 1 to 3, had become the .joint mut- ~Singh and .'.others

wallis ·as well .as the owners of the beneficial interest Jagannadhadas .J. in the wakf estate. It being undisputed that these

· three remained in India . throughout, it . is . contended that the property at the date of the no.tification was ·the property -of these three sons and not of Kumar Rani and that, therefore, ·the -Bihar Administration of Evacuee Property Ordinance, 1949, has no applica- . tion to the facts. (3) The ·Bihar Administration of :Evacuee Property Ordinance, .1949, .is not applicable to wakf property ,and to, the beneficial interest of the applicants therein. So far as the first point is con-cerned an "evacuee" is defined as follows in the Bihar Administration ·of Evacuee .Property Ordinance, 1949 : "A person who, on account of the setting up of the Dominions of India and Pakistan or on account of ciyil distmbances or the fear of such disturbances, .'.leaves or •·has, ·On •or after •the· 1st day of November, ·.J946, left, any ··Place ·in the 'Province of Bihar for any place · outside the territories now forming part of ·India".

It is clear that, as already found ·above, Kumar Rani . mi grated to Pakistan from .In.dia after the 1st March, 1947. In view .of the £act that her plea .as to the rea-son for such migration has not been accepted, she can well be taken to ·have left India for Pakistan in the circumstances set out in this definition, and after the prescribed date. She has, therefore, been rightly ·taken to ·be ·an "evacuee" ·by the Custodian .. As re-gards the second point, the alleged relinquishment of the office of mutwalli by Kumar Rani and the vesting :of the interest in the wakf ·property in her three sons, respondents 1 ·to 3, ·as · joint 0mutwallis thereof, by virtue of ·the ·terms of the deed of wakf, is ·based on a letter addressed -to. the ·second ;res-I -pondent, ·her second ·son , Kumar · Fateh ·Singh, •purporting to have been .. wri_tten ·by ·her ·and dated ·the 2nd June, 1949. The gel).liineness of this letter has been challenged -and it is ·the issue as to itr. •genuineness that was remanded: to tthe -. High .Court for a · finding by the ::previous otder of 'this Court. The •The State Of Bihar High Court . having -:taken evidence on the matters at ·v. the hearing after remand and · having considered the Kumar Amar ···:Singh and other.< same, has clearly found that the letter was not genuine. We have gone through the finding arid the Jagtmnadhadas J. ·material relevant thereto, and can find no ·reason not to accept it. There is, therefore, no substance in this '-f'

second contention. As regards the third point, the contention is based on the definition of · the phrase "evacuee property" in ·the Bihar Administration of Evacuee Property Ordinance, 1949, which is as follows :

"Evacuee property means a:ny property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument".

•It is contended that this definition · does not apply either to the · wakf property or to the beneficial interest of the mutwalli therein and that, therefore, the pro-perty in question did not vest· in the Custodian. Now, •as already "stated, the original· notification vesting the wakf property in the Custodian was ~made under sec-tion 5 of the · Bihar Admini-stration of ·Evacuee Pro-perty Ordinance, 1949. This Ordinance was repealed by section 55(2) of Central Ordinance No. XXVII .of 1949. The Central Ordinance defined "evacuee pro-perty" as

"any property in ·which an ·evacuee has any right or interest, whether personal or as a trustee or a:s beneficiary or in any other capacity".

The Central Ordinance was in turn repealed by Cen-tral Act No. XXXI of 1950 ·and "evacuee property"

has been defined therein .. as meaning

"any property of an evacuee whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any oi:her capacity·".

The word "property" is defined as meaning

"property of any kind and includes any right or interest in such property".

'The Central Ordinance which repeale'd .. the Bihar Ordinance as well as ·the ,central Act which repealed i:he Central Ordinance, each contain ·section ·8(2) pro-viding that

1955 "where immediately before the commencement The State of Bihar of this Ordinance (Act) any evacuee property in a

.v. Province has vested in any person exercising the Kumar Amar power of Custodian under any law repealed hereby, Singh and others

J. the evacuee property shall on the commencement of Jagannadhadas the Ordinance (Act) be deemed to have been vested

in the Custodian appointed or deemed to have been appointed for the Province under the Ordinance (Act) and shall continue to so vest". · , ·, The definitions of the ·phrase "evacuee property" m the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an · evacuee in any property held as a trustee or beneficiary. There is no reason to think that "eva-cuee property" as defined in the Bihar Ordinance was meant to be anything "different. The words used in this definition are of sufficient amplitude and we ·are of the opinion that the Bihar 'definition· comprised also · wakj property and interest therein~ We are also of the opinion that the successive repeals of ·the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting · in the Cus-todian, places the matter beyond any doubt. This contention must, therefore, fail. This appeal alw must accordingly succe~d.

In the result both the appeals are allowed. The appellant in the circumstances will get only the cost; incurred before the High Court on remand in Civil Appeal No. 97 of 1952.

Appeals allowed.

1955 SHYABUDDINSAB MOHIDIN$AB, ' AKKI

Fe6ruary 22 tJ.

THE GADAG-BETGERI · MUNICIPAL BOROUGH

AND OTHERS.

rvrvrAN BosE, JAGANNADHADAS and' B. P, SINHA JT.] Bombay M~nicipal Boroughs Act, 1925 ·(Bombay Act XVlll of 1925), s. 19 as amended by Bombay Act LIV _of 1954-;-Lc_gal effect thereof-Validity of election-S. 35(3)(6)-Notice ,of meeting-Provi-sions of s. 35(3)'-Whether directory or mimdatory-S. 35(6)-Pre-sence or absence of public-Whether affects the validity of meeting.