Abu Mohmed Memon v. Chief Secretary, Government Of Saurashtra

Baxi, J.:— The petitioner entered India under a temporary permit issued by the High Commissioner for India in Pakistan, entitling him to remain in India for one month. The purpose and the place of the petitioner's visit to India have been mentioned in the permit as “for business to Dharwad”. The permit entitled him to stay in India from 26-7-48 to 25-8-48. After coming to India the petitioner addressed a letter to the High Commissioner stating that he was an inhabitant of Dhuvav (Jamnagar) and was doing business in the Konkan District. He had gone to Karachi (Pakistan) from Bombay for the purpose of business for four to five months. His family had always been in India and he did not propose to go back to Karachi and therefore he returned the permit to the High Commissioner. This letter is dated 12th August 1948. He was however directed by the High Commissioner, by his letter dated 31-8-48 to approach the District authorities concerned.

2. According to the petitioner, the Government of Saurashtra was also approached by him by an application dated 11th August 1948 for the issue of a permanent permit but no such permit has been issued to him. The petitioner however did not go back to Pakistan and overstayed the period mentioned in his permit. He was prosecuted in the Court of the First Class Magistrate, Jamnagar, under the Influx from West Pakistan (Control) Ordinance XVII (17) of 1948 for overstaying in India and was convicted under Section 4 read with Section 3 of the Ordinance. The petitioner has now applied for a writ restraining the opponents from removing him from India alleging that he apprehends that the District Superintendent of Police, Jamnagar acting under the instructions of the Government of Saurashtra and the Central Government intended to remove him from India.

3. His main contention was that when he entered India in July 1948 the only law controlling influx from West Pakistan was the Ordinance No. XVII (17) of 1948. No rules were framed at that time by the Government under the Ordinance. The Ordinance authorised the removal from India of only those persons who had entered India without a permit but did not empower the Central Government to remove those who having lawfully entered India under a permit committed a breach of its condition or committed a breach of the rules made under the ordinances. The authority to remove such persons from India was conferred upon the Government by subsequent legislation and it was contended that the petitioner having once lawfully entered India and as on the date of the expiry of the permit there was no law which rendered him liable to removal from India, subsequent legislation making overstay penal and a ground for removal of the person overstaying could not affect him.

4. The learned Advocate referred to Article 20 of the Constitution in support of his argument. The learned Advocate General argued that the petitioner's overstay made him liable to removal at least after the subsequent legislation. He further argued that as the petitioner had entered India on the express representation that he intended to visit India temporarily on business only, he cannot now be permitted to continue to stay in India unless he obtained a fresh permit for resettlement under the rules framed by the Government for the purpose.

5. Entry into India from West Pakistan was controlled for the first time by the Ordinance No. XVII (17) of 1948 published in the Central Government Gazette on 6-8-48. Section 3 prohibited entry of a person into India from any place in West Pakistan unless such person was in possession of a permit or of a passport or was exempted from being in possession of a permit under the rules made by the Government. Sub-section (2) empowered the Government to make the rules. Section 4 prescribed penalty for contravention of the provisions of Section 3 or of any rule made thereunder. Section 5 authorised certain police and customs officers to arrest without a warrant a person who contravened or who was reasonably suspected to have contravened the provisions of Section 3 or any rule made thereunder and required the officer making the arrest to take or send the person arrested to the Magistrate having jurisdiction. Finally Section 6 empowered the Central Government by a general or special order to direct the removal from India of any person who has entered India in contravention of the provisions of Section 3.

6. Under this Ordinance therefore entry into India without a permit or breach of any rule made by the Government was made punishable but the Central Government's power to direct removal was restricted to persons who entered India in contravention of the provisions of Section 3 and the Ordinance did not empower the Government to remove a person who having law-fully entered India under Section 3 subsequently committed a breach of the conditions of the permit or of the rules made under the Ordinance. Rules called the Permit System Rules 1948 were thereafter framed under the Ordinance and were published on 1-10-48 in the Saurashtra Government Gazette 1948 at page 670.

7. Rule 12 enacts that a person holding a temporary permit shall not stay in India after the date of the expiry of such permit. When these rules were enacted the petitioner was in India and his permit had already expired. After the issue of the Permit System Rules the Government issued general instructions to police officers by Notification No. II(48)(55)-48-GENL dated the 14th September 1949 not to permit persons having entered India under a temporary permit to overstay their period and reminded them that such persons were liable to prosecution under Section 3 of the Influx from West Pakistan (Control) Ordinance 1948.

8. Ordinance XVII (17) was followed by Ordinance XXXIV (34) of 1948 which was published in Saurashtra Government Gazette of 1948 dated 10-11-48. By this Ordinance, Ordinance XVII (17) was repealed. Section 3 of Ordinance XVII (17) was amplified into two sections viz., sections 3 and 4. By Section 3 of the new Ordinance entry into India from any place in West Pakistan without a permit or a passport was prohibited unless the person entering India was exempted from being required to be in possession of the permit in accordance with the rules made under the Ordinance. Section 4 invested the Government with powers to make rules. Section 5(1) enacted that & person entering India in contravention of provisions of Section 3 or having entered India contravened the rules made under Section 4 or committed the breach of any condition of the permit shall be punished with imprisonment or fine or both. By sub-section (2) a person making a statement in pursuance of any provisions of the Ordinance or any rule made thereunder or furnishing any information which is false and which he either knows or believes to be false or does not believe to be true touching any point material to the object for which the statement is made or used is rendered liable to be punished with imprisonment or fine or both. Section 6 authorised certain police and customs officers to arrest persons without a warrant who have committed or against whom a reasonable suspicion exists that they have committed the offence under the Ordinance and finally by Section 7 the Central Government was invested with jurisdiction to direct the removal from India of any person who committed or against whom a reasonable suspicion exists that he has committed offence under this Ordinance.

9. It will be noted how the authority of the Central Government to remove persons from India was extended under the new Ordinance. While Section 6 of the previous Ordinance (XVII (17) of 1948) empowered the Central Government to direct the removal of only those persons who entered India without a permit or a passport this power was extended by the new Ordinance to persons who not only entered India in contravention of provisions of Section 3 but who after having entered India contravened the provisions of the Rules under the Ordinance or who committed a breach of any of the conditions of the permit and the power extended against persons against whom even a reasonable suspicion that they committed any of the above acts existed.

10. By the Notification No. II (55-E)-49 dated 8-2-49 published at page 411 of the Saurashtra Government Gazette issued under this Ordinance, the Central Government directed the removal from India of every person who entered India from West Pakistan in contravention of Section 3 of the Ordinance or who having lawfully entered India contravened the provisions of any rule made under Section 4 of the Ordinance or committed a breach of any of the conditions of the permit or who had obtained his permit on the strength of a statement made by him which is false or which he knew or believed to be false or did not believe to be true. The Ordinance No. XXXIV (34) of 1948 was repealed and replaced by the Influx from West Pakistan (Control) Act XXIII (23) of 1949 and Rules have been made thereunder.

11. The petitioner had undoubtedly over-stayed in India and thereby committed a breach of the Rule 12 of Permit System Rules, 1948. He also committed a breach of the conditions of the permit. Therefore there is a complete case for his removal under Ordinance XXXIV (34) of 1948 and Act 23 (XXIII) of 1949.

12. It is however argued on behalf of the petitioner that he entered India under a valid permit. He had overstayed the period of his permit when there were no rules prohibiting such overstay and the Government had no authority to remove him on the ground of overstay. And he could not be removed because rules prohibiting overstay were subsequently framed and because subsequent legislation rendered persons overstaying in India in contravention of the rules or the conditions of the permit liable to removal from India. The learned Advocate relied upon Article 20 of the Constitution which states that no person shall be convicted of an offence except for violation of law in force at the time of the commission of the act charged as an offence nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

13. It is possible that the petitioner's overstay during the period when the Government could not remove a person on that ground cannot by subsequent legislation be made a ground of removal. But from the date on which the new Ordinance viz., Ordinance XXXIV (34) of 1948 came into force the petitioner's stay in India in breach of the conditions of the permit and in breach of the Permit System Rules became an offence and the Central Government became entitled to direct his removal. We may here refer to the decision of this Court in the ‘United State of Saurashtra v. Khatri Osman Mamad’, 2 Sau LR 212 which completely covers the point. In that case overstay after the expiry of a permit was held punishable under the Permit System Rules even though the permit had expired before the Rules were framed. The act of the petitioner's overstay is a continuous offence and can be dealt with under the Ordinance XXXIV (34) of 1948 and the Rules and notifications issued thereunder though such overstay could not have been punished or made a ground of removal under the Ordinance XVII (17) of 1948.

14. We may add that the petitioner had obtained the temporary permit on the allegation that his visit to India was to be a temporary visit and entered India on the strength of that permit. It is therefore not open to him to contend that his original intention was to stay permanently in India. His present overstay is subject to the incidents and penalties attached to his present permit. If he intends to return to India permanently it is open to him to do so after obtaining a permit for resettlement from the proper authorities. The present petition is without substance and is ordered to be dismissed with costs.

Shah, C.J:— I agree.

Chhatpar, J.:— I agree. I would however add a recommendation to the authorities concerned to consider the application of the petitioner for permanent resettlement in India sympathetically if the facts stated in his application are correct and his loyalty to the Indian Union unquestionable and if he has acquired no interest in Pakistan.

A/V.R.B

17. Petition dismissed.