Shearer, J.:— These two applications, which have been heard together, are applications 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 applications, and 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, and the applications can be very shortly disposed of. The petitioner in miscellaneous judicial case no. 170 of 1950 describes herself as Kumar Rani Saveedah Khatoon, wife of Captain Maharaj Kumar Gopal Saran Narayan Singh. Kumar Rani Saveedah Khatoon landed at the Palam airport in New Delhi on the 14th of May, 1950. She was in possession of a permit granted by the High Commissioner for India in Pakistan, which entitled her to remain in India, permanently. She was, therefore, admitted, and proceeded to Gava where her husband resides. On the 19th of May, 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. On the 23rd of July, 1950, a notice was served on her by the Sub-Inspector stating that the High Commissioner for India in Pakistan had withdrawn her permit and requiring her to return, to Pakistan within seven days.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 Government Advocate has not been as fully instructed as he ought to have been, and 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 application which she made for this permit, the petitioner did not make any statement which was untrue. It appears that, she originally went to Karachi in the middle of 1948 and 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 and-, 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 and may conceivably have been untrue. I was at first disposed to take the view that the application was premature, and it would have been premature if it had been clear that the authorities intended to prosecute her and did not intend, to make an order for her deportation until the conclusion of the criminal trial. Sir Sultan Ahmed, for the petitioner, has, however, pointed out that orders for deportation, which in England can only be made by a Secretary of State, can, 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-Inspectors of Police. On further consideration I accept the contention of Sir Sultan Ahmed that the order which was served on the petitioner 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 and not an alien, is entitled to a writ of certiorari and, on the return to that writ being made, to a judicial determination of the question of his status. The petitioner contends that she is a citizen of India, and the contention is well grounded. The petitioner was born in India, and is domiciled in India. On marriage, a woman takes the domicile of her husband, and, during the continuance of the marriage at least, cannot, by any act of her acquire another domicile. That is, and always has been, the, British law, and was incorporated into British law from the Canon law which, in matrimonial matters, regulated the conduct of Christians throughout the whole of western Christendom. It is obvious that to permit a married woman to acquire a domicile distinct from the domicile of her husband would be to undermine the marriage tie and, indeed, render the purpose for which the marriage was contracted no longer capable of performance. I can see no reason to suppose that the position under the Hindu law or under the Muhammadan law is otherwise. Quite certainly the Hindu conception of marriage is that it creates a tie no less indissoluble than was the tie created by the rite of marriage among Christians belonging to the Roman Catholic Church. The Sub-Inspector of Police or whatever superior official, under whose directions he acted, appears to have taken the view that, the petitioner being an evacuee and having entered India under a permit, which, he erroneously thought, had been improperly obtained, he was bound to make an order for her deportation. An affidavit has been put in by the petitioner in which she states that she went to Karachi to obtain medical treatment under a hakim who had migrated from India to Pakistan in or after 1947. If that was really so, she would not fall under clause (i) of the definition of “evacuee” contained in clause (c) of section 2 of the Ordinance nor would she fall under clause (ii) as the word “resident” occurring-there must he construed as meaning a person who has taken up his or her residence in Pakistan permanently and is not residing there temporarily for any such purpose as obtaining better medical treatment than he or she is or thinks himself or herself to be in a position to obtain in India. I am by no means satisfied of the truth of what is contained in this affidavit and, if I had to act on it, I should have required supplementary affidavit to be filed giving further and better particulars, such, for instance, as the name of the hakim and the address at which he practised in India and now practises in Karachi. Even, however, assuming that the statements made in the affidavit are untrue and that the petitioner comes within the definition of “evacuee” in the Ordinance, nevertheless she is also a citizen of India and, as such, is entitled to remain in India. Where the wife of a, citizen of India goes to Pakistan, then, if, while in Pakistan, she conducts herself in such a manner as to create suspicions as to her loyalty to the Indian Union, she may, on her return to India, be subjected to such restrictions on her movements as Parliament may consider advisable, restrictions, for instance, similar to those which were imposed on the wives of British subjects who, prior to their marriage, had been enemy aliens during the war. Parliament has, however, not yet considered it necessary, so far at least as I am aware, to impose such restrictions.
The petitioners in miscellaneous judicial case no. 140 of 1950 are the three sons of Kumar Rani Saveedah Khatoon. These petitioners are the joint mutwallis of certain wakf property. On the 2nd of October, 1949, this property was taken possession of by the Deputy Custodian of Evacuee Property. It is no disputed that the petitioners are citizens of India, and prima facie, therefore, the action taken by the Deputy Custodian was an infringement of their fundamental right to hold and enjoy property. The reason why the Deputy Custodian took the action which he did was that this property belonged originally to Kumar Rani Sayeedah Khatoon. On the 4th of May, 1946, she executed and registered a deed of wakfnama in respect of it. Under, this deed, she appointed herself the mutwalli and appointed the eldest of her three sons as the naib mutwalli, who was in her absence, to manage the property. The deed provided that one-half of the income should be paid to her and that the other half should be paid in equal shares to her sons. The deed further provided that, on her death or on her relinquishing the office of mutwalli her three sons should at once become joint mutwallis. On the 2nd of June, 1949, Kumar Rani Sayeedah Khatoon wrote a letter to the eldest of her sons, who was the naib mutwalli, stating that she relinquished her office of mutwalli and also relinquished her right to receive one-half of the income from the wakf property. The Bihar Administration of Evacuee Property Ordinance, 1949, came into operation on the 21st of June, 1949, but was repealed and replaced by Ordinance no. XXVII of 1949 of the Central Government, which was subsequently enacted as the Administration of Evacuee Property Act, 1950 (no. XXXI of 1950). The latter Ordinance and the Act gave a more extended meaning to the expression “evacuee property” and brought within the purview of the expression any property which had belonged origin all to an evacuee, which the evacuee had transferred after the 14th day of August, 1947. The Deputy Custodian apparently took the; view that, on the 2nd of June, 1949, there had been a transfer of this property by Kumar Rani Sayeedah Khatoon to her sons. In taking this view, the Deputy Custodian clearly misdirected himself. No transfer of property took place on the 2nd of June, 1949. The transfer, and the only transfer, of this property which had taken place took place on the 4th of Mav, 1946, when the deed of wakfnama was executed. What Kumar Rani Sayeedah Khatoon did on the 2nd of June 1949, was to resign her office of mutwalli, and this she was entitled to do by writing under her own hand and was under no obligation to execute and register any deed. I see no reason myself to suppose that she could not similarly renounce her right to a share in the income from the property. But, as she is a citizen of India, it is quite unnecessary to go into this point. The learned Government Advocate referred us to section 28 of the Act and contended that this Court had no jurisdiction to interfere. The remedy open to the petitioners was, Mr. S.K Mitra suggested, to appeal against the order of the Deputy Custodian to the Custodian General. Mr. P.R Das, for the petitioners, had invited our attention to two decisions of the High Court of Australia in which it was held that a statute which took away the right of a citizen to obtain a prerogative writ was void in so far as it was repugnant to Article 75(v) of the Australian Constitution Act, 1900. The King v. Hickman(1) and The King v. The Commonwealth Rent Controller(2). Article 75(v) of the Australian Constitution Act, 1900, provides that “in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, the High Court shall have original jurisdiction”. Article 226 of the Indian Constitution operates in exactly the same way. It is quite clear that under Article 226 it is not merely open to us, but it is our duty to interfere when, as in these cases, there has been a flagrant and unjustified invasion of the fundamental rights of citizens.
The applications ought, in my opinion, to be allowed, and the rules, which have been issued, ought to be made absolute. In Miscellaneous Judicial Case no. 140 of 1950 I would issue a mandatory injunction requiring the opposite party forthwith to make over to the petitioners the property of which three of them are the mutwallis and of which he has wrongly taken possession. The petitioners are also entitled to their costs.
Sarjoo Prosad, J.:— I agree.
M.J.C 170 of 1950—The petitioner may well be entitled to claim the domicile of her husband, Captain Gopal Saran Narain Singh of Tikari. It is not clear from the records as to in what form the marriage of, the petitioner with the said Captain was solemnised. Sir Sultan Ahmad appearing for the petitioner could not throw any light on the point. It appears, however, that Captain Gopal Narain Singh acknowledges the petitioner as his wife, and there is nothing on the record to the contrary. In that view she can claim the domicile of her husband though I am not certain that the petitioner does not come within the definition of “evacuee” as given in the Evacuee Property Ordinance subsequently followed by an Act. My learned brother has, if I may respectfully say so, correctly pointed out that if her conduct creates suspicion as to her loyalty to the Indian Union, she may be subjected to such restrictions as the legislature, may consider advisable.
M.J.C 140 of 1950.—M.J.C 140 of 1950 should be allowed on the short ground that the petitioners who are the joint mutwallis of the waqf property are entitled to be in possession of the property of and not the custodian who had no jurisdiction to take possession of the same. It is to be remembered that Kumar Rani Sayeedah Khatoon the mother of these petitioners, relinquished her interest as mutwalli of the said waqf-ul-aulad long before the Bihar Administration of Evacuee Property Ordinance (III of 1949) came into force on the 21st June, 1949. In the circumstances on the terms of the deed these petitioners became joint mutwallis. These petitioners are undeniably citizens of India. The genuineness of the letter, dated the 2nd of June, 1949, under which the mutwalliship was relinquished by Sayeedah Khatoon has not been questioned before us. Therefore, under section 11(2)(a) of the Ordinance the “mutwalli” not being an “evacuee”, the waqf properties could not vest in the custodian, and even assuming that Sayeedah Khatoon herself was an evacuee, she had already ceased to be a mutwalli and to represent the waqf property before the Ordinance came into operation. For these reasons the action of the custodian was ultra vires the Ordinance itself. It is contended by the learned Government Advocate that there is a procedure provided under the Ordinance which should have been followed by the petitioners in order to get redress against any illegal act or conduct on the part of the custodian or the Deputy Custodian. He refers to sections 24, 25 and 28 of the Ordinance for this purpose. I agree with my learned brother that section 28 of the Ordinance cannot stand in the way of our exercising the powers which have been vouchsafed to us under Article 226 of the Constitution. But the thing which has caused me most serious concern is whether when a special remedy is provided under a particular statute, we should not leave the petitioners to follow that remedy instead of seeking to invoke our extraordinary jurisdiction by way of a writ under Article 226 of the Constitution. I am, however, impressed with the argument of Mr. P.R Das to this extent that in case of flagrant and unjustified invasion of the fundamental rights of a citizen we must act in the exercise of our powers to protect him against injury and give him the relief provided the circumstances of the case are such that otherwise the alternate remedy available to the citizen, may not be equally effectual, convenient, and beneficial, and by the time he gets the relief, the citizen may have suffered irretrievable loss and damage. We are informed that in this case the petitioners did prefer a claim which was dismissed by the custodian and against which an appeal has been presented to the Custodian General in Delhi. But the said appeal has, been pending since long and no attempt has been made to dispose of the same; while in the meantime the petitioners are being put to great loss and harassment. Particular reference in this connection may be made to the statements in paragraphs 18 and 19 of the petition which have not been controverted before us by the learned Counsel for the State. Mr. P.R Das rightly contends that in the circumstances of this case there is no other efficacious remedy left to the petitioners than to apply to this Court under Article 226, of the Constitution otherwise irreparable injury was likely to be caused to them. In his petition he has given details of the Various instances of damage caused and apprehended, and those details have not been disputed. For the above reasons I agree with my learned brother that this is pre-eminently a case where mandatory injunction should be issued on the opposite party to make over forthwith the possession of the properties to the petitioners who are the joint mutwallis of the waqf-ul-aulad.
Order accordingly.
K.D