Hakim Mahboob Ali Khan vs Shri H.S. Nair and Another

Grover, J.—This is a petition under Article 226 of the Constitution in which the facts may be first stated. The petitioner''s father Hakim Mohammad Ali Khan is stated to have owned extensive property in the erstwhile State of Pepsu. He died about 25 years ago leaving behind three sons, a widow and a daughter, one of the sons being the petitioner. It is not disputed that the succession in the family of Hakim Mohammad Ali Khan was regulated by custom and only the males succeeded to the exclusion of the females. It is unnecessary td give other details in respect of the deaths of some of the heirs of Hakim Mohammad Ali Khan and the manner in which the property devolved on the surviving heirs. It is common ground that the present petitioner was entitled to half share in his property. When the disturbances took place in 1947, the petitioner who was a minor, accompanied by his mother went to Lahore by air towards the end of 1947. In January 1943 she returned with him to Aligarh in India. He then joined the Aligarh Muslim University School where according to him he continued his studies without break having now appeared in the M.A. (Final) examination. The certificates of the University relating to his admission and continuation of his studies are Annexures II to VI. In Annexure III it is stated that the petitioner who was born on 1st August 1938 joined the Muslim University High School on 22nd January 1948 and was continuously a student of that institution till 30th June 1952. Annexure IV is the copy of the certificate of the University to the effect that the petitioner had been a non-resident student since 1952 to 1957. In paragraph 7 of the petition it is stated that as the petitioner''s school was closed for summer vacation his mother, who had received information of her mother''s serious illness, desired to pay her a visit. She took the petitioner as also her daughter who was the wife of Kunwar Ammar Ahmad Khan, M.L.A. of Uttar Pradesh to Lahore after obtaining the permission of the City Magistrate, Aligarh. This permission was obtained notwithstanding the fact that under the law then in force it was neither necessary nor required. It is claimed that this was indicative of the intention and bona fide purpose of the visit of the petitioner''s mother. The permit of the City Magistrate dated 7th June 1948 (Annexure VII was in the following terms:-

Said-un-Nisa Begum, widow of Late Hakeem Mohammad Ali Khan of Patiala State, residing at present with Kr. Ammar Ahmad Khan, M.L.A., Amar Manzil, Marris Road, Aiigarh, is permitted to go to Pakistan with her son Hakeem Mahboob Ali Khan, her daughter Quraishia Zarren Begum and her maid servant Kahmi.

Valid up to June 24, 1948.

The petitioner''s mother could not return with him till 15th July 1948 and by 19th July 1948 certain permit rules and regulations had been enforced. The petitioner''s mother applied to the Deputy High Commissioner for India in Pakistan at Lahore for a permit for permanent return to India. It is stated in the petition that the Deputy High Commissioner suggested that since enquiries from India would take a long time and as the petitioner''s vacations at the school in Aligarh were coming to an end, she might obtain a temporary permit which could be converted into a permanent one. As the petitioner''s mother was anxious to avoid delay, the application for a permanent permit was accordingly amended into one for a temporary permit. Both the petitioner and his mother returned to India on 15th October 1948 and had been living here ever since. Annexure VIII is the copy of a letter dated 29th October 1952 from the Assistant Secretary to Government Home Department, to the District Magistrate, Aligarh, which is as follows:-

With reference to the correspondence resting with your D.O. letter No. 1014/ST dated April 1, 1951, I am directed to inform you that the Government of India have decided that Shrimati Said-un-nisa Begum widow of Hakim Mohd. Ali Khan and her minor son have no case for the conversion of her temporary, permit into one for permanent resettlement in India. As they have been living in India for a long time they may, however, be allowed to stay on in an undefined national status.

It appears that the petitioner''s mother filed various applications in respect of the petitioner''s property which had been taken possession of as evacuee property. These applications, which admittedly were for restoration u/s 16 of the Administration of Evacuee Property Act (XXXI of 1950), were sent for enquiry to the Custodian, Pepsu, who in turn entrusted the matter to the Assistant Custodian (Judicial). On 11th April 1958 the Assistant Custodian (Judicial) gave a finding that the petitioner was not an evacuee and was entitled to restoration of his property. It is stated in paragraph 12 of the petition that the finding was upheld by the Custodian-General. By means of a letter dated 1st March 1957 the Ministry of Rehabilitation informed the petitioner that his claim for restoration of property could not be accepted. This letter may be reproduced:-

With reference to your letter dated the 17th October, 1956, I am directed to say that your request for restoration of properties has been considered by this Ministry, but it is regretted that the same cannot be acceded to. However, having regard to the circumstances of the case it has been decided to pay you a sum of Rs. 88,808/- (Rupees eighty eight thousand and eight hundred eight only) as ex-gratia relief on humanitarian grounds.

You have further the option of not taking the entire amount of ex-gratia relief in cash but purchasing either of the two properties mentioned below at the assessed price shown against each and receiving the balance amount in cash:-

(i) One Kothi in village Munshiwala District Sunam which has been assessed at Rs. 60,300/-.

(ii) House No. 235 Ward 5 Samani Gate, Patiala, which has been assessed at Rs. 37,000/-.

You are advised to approach the Custodian of Evacuee Property, Punjab, Jullundur and intimate to him the option acceptable to you so that further necessary action in the matter may be taken by him.

The maintenance allowance of Rs. 200/- per month which is being paid to you at present will be stopped with effect from the 1st March, 1957.

On 19th March 1957 the petitioner sent a reply (Annexure XI) reiterating his position. It was stated, however, that as he was in dire need of money, he had decided to accept the amount in question but he was anxious that the authorities should keep the doors open for sympathetic consideration in future. The petitioner decided to take a house in Patiala of the value of Rs. 52,80/- and the balance amount of Rs. 37,000/- was to be taken in cash. It would seem from this letter that the petitioner had also been receiving allowance of Rs. 200/- per mensem but the same had been stopped with effect from March 1957. On 31st March 1959 the petitioner along with his mother and sister filed a writ petition in this Court impleading the Ministry of Rehabilitation as a respondent, the reliefs sought being that the respondent be directed not to interfere with the property of the petitioner and that its possession should be restored to him. This petition was subsequently not pressed and was dismissed. It is stated in paragraph 15 of the petition that it was on account of technical errors in the petition as also because proper respondents had not been impleaded that the petition was sought to be withdrawn. Thereafter the petitioner filed an application before the Central Government u/s 54 of file Administration of Evacuee Property Act "for the issue of directions that the petitioner is exempt from the operation of the definition of the term ''evacuee'' as contained in the Act and the said provision ''shall be deemed never to have applied to him and therefore his property cannot be treated as evacuee property and should be released to him as such." This application was dismissed on 10th October 1961. The present petition was filed soon afterwards.

In the return filed by the respondents, certain preliminary objections have been raised. Substantially they are to the effect that the petitioner and his mother became evacuees and that they had applied u/s 16 of the Administration of Evacuee Property Act for restoration and had thereby admitted the evacuee nature of the property in question and further that an amount of Rs. 88,808/- had been accepted as ex gratia grant and the petitioner was consequently estopped from denying the evacuee nature of the property. It is stated that the only relief open to him is to claim restoration on one of the grounds mentioned in rule 15-B of the Administration of Evacuee Property Rules but his case was not covered by any of the clauses in that rule. Before me, however, the learned counsel for the respondents has sought to raise a number of other objections inter alia-

(1) The petition should be dismissed on the grounds of laches and delay as also acquiesence and waiver.

(2) The previous writ petition having not been pressed and having been dismissed, the present petition would be barred on the principles of res judicata, and by the provisions contained in order XXIII, rule 1 of the Code of Civil Procedure.

(3) No application of the nature made by the petitioner was competent u/s 54 of the Administration of Evacuee Property Act, nor could the Central Government grant him the relief prayed for.

The facts which have already been set out are sufficient to indicate that the petitioner has certainly been guilty of laches and delay. He also accepted the ex-gratia grant of the sum of Rs. 88,808/- which may justify the respondents invoking the rule of acquiesence. It is also true that the previous writ petition was not pressed and was dismissed and there is nothing in the order showing that it was withdrawn with liberty to file a fresh petition. Thus a bar may be created under Order XXIII, rule 1 of the CPC to the filing of the present petition. I am, however, not inclined to dismiss this petition on these grounds alone as I am satisfied that the petition must fail even on the merits.

The substantial point that has been canvassed before me is based on two notifications dated 3rd July 1950 and 9th May 1954 issued by the Government of India, Ministry of Rehabilitation, in exercise of the powers conferred by Section 52 of the Administration of Evacuee Property Act, 1950 The effect of these notifications was to exempt certain class, of persons from the operation of sub-clause (i) of clause (d) of section 2 of the said Act. The effort on behalf of the petitioner has been to bring his case under clause (b). In the earlier notification this clause was as follows:-

Any person who has left or leaves for Pakistan on a temporary visit taking with himself a "No objection to return" certificate, and has returned, or returns, to India under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent'' return to India;

Provided that such person has not made any other journey to Pakistan except in similar circumstances and subject to the same conditions.

In the later notification it was as under:-

Any person who left for Pakistan before 15th October, 1952, on a temporary, visit taking with himself a "No objection to return" certificate and-

(i) returned to India on or before 15th October, 1952, under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, as then in force, for permanent return to India:

Provided that such person has not thereafter made any other journey to Pakistan except in similar circumstances and subject to the same conditions, or in the circumstances and subject to the conditions specified in clause (c); or

(ii) has returned or returns, on or after the 15th October, 1952, on the authority of an Indian Passport, or repatriation certificate, or emergency certificate, or certificate of identity or, in the case of a seaman a continuous discharge certificate, issued by a competent authority under any law regulating travel between India and Pakistan: Provided that such person has not thereafter made any other journey except in the circumstances and subject to the conditions specified in clause (c).

Actually before me the learned counsel for the petitioner confined himself mainly to the aforesaid provisions in the 1954 notification. He further relied on the earlier part of the notification wherein it is provided that the provisions of sub-clause (i) of clause (d) of section 2 of the Act shall not apply and shall be deemed never to have applied to certain classes of persons. It is urged that the petitioner and his mother left for Pakistan before 15th October 1952 on a temporary visit and that the permission which was conveyed by the City Magistrate, Aligarh, was equivalent to a "No objection to return" certificate and that they returned to India on or before 14th October 1952 under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent return to India. It is admitted that in the letter dated 29th October 1952 (Annexure VIII) there is no mention of a permit for permanent return to India but it is said that the language employed therein admits of no other interpretation except this that the petitioner and his mother were granted such a permit as they were allowed to stay on indefinitely. In other words. the permission to stay in this country indefinitely was equivalent to a permit for permanent return. In the petition, however, reliance had been placed on the first notification mainly and therefore, in the written statement filed on behalf of the respondents it is stated in reply to paragraph 17(C) and (D) that the first visit of the petitioner was no doubt before the permit system was introduced but his second visit was without obtaining a no objection to return certificate and he returned on a temporary permit. Thus his case was not covered by the notification dated 3rd July 1950.

It is necessary at this stage to examine the legislation relating to the permit system. The Influx from West Pakistan (Control) Ordinance No. 17 of 1948 was published in the Gazette of India (Extraordinary) dated 19th July 1948. This prohibited the entry into India from Pakistan of any person who was not in possession of a permit etc. Power was given under the Ordinance to the Central Government to make certain rules. On 14th September 1948 the Permit System Rules were promulgated. Rule 3 provided that there shall be four kinds of permits, namely:-

(i) Permit for temporary visit,

(ii) Permits for resettlement or permanent return,

(iii) Permanent permits, and

(iv) Permit to return to India.

Rule 12 provided that no person holding a temporary permit shall stay in India after the date of the expiry pf such permit. Sub-rule (3) of rule 12-A made a provision for extension of the permit without any limit of time by such further, period as may be thought fit Ordinance 17 of 1948 was replaced by Ordinance 24 of 1948 on, 10th November 1948 but the rules continued to be the same. According to rule 9 of the aforesaid rules, the permits had to be in the form specified in Appendix II or III. In Appendix II form (A) related to a temporary permit whereas form (B) related to a permit for Resettlement or permanent return. On 23rd April 1949 the Influx from Pakistan (Control) Act, 1949, became, the law. It was amended by the Influx from Pakistan (Amendment) Act, 1950. Section 2(c) defined the permit to mean a permit issued or renewed or the period whereof had been extended in accordance with the rules made under the Act. According to the rules made under the Act, five kinds of permits were provided for:

I. Permit for temporary visit.

II. Permit of permanent return to India.

III. Permit for repeated journey.

IV. Transit Permit.

V. Permits for permanent resettlement.

According to rule 5(iii) of, the Permit System Rules, 1949 promulgated trader the aforesaid Act a person domiciled in India who intends to proceed temporarily to Pakistan has to obtain from the District Magistrate/Collector/Deputy Commissioner of the District where he permanently resides, a certificate of identity in Appendix II, Part 4. In the for in given in Appendix II a certificate has to be appended by the Deputy Commissioner in the following words as well:-

Certified that the holder is present in India on the date of issue of this certificate and that there is no objection to his, return to India at any time.

There can be no doubt that if the petitioner could satisfy the conditions laid down in the notifications of 1950 and 1954 he could not be deemed to be an evacuee on the ground that he had on or after the 1st day of March 1947 left any place in a State for any place outside the territories now forming part of India but both the notifications required that he should have no objection to return certificate and also a permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent return to India. The question in the present case is whether the petitioner satisfied both these requirements. It is pointed out that the first requirement of a no objection to return certificate was fulfilled when the City Magistrate of Aligarh gave the permit on 7th June 1948 (Annexure VII). At that time the Influx from Pakistan (Control) Act, 1949, had not come into force and it was by the rules made under that Act that for the first time a certificate of identity had to be obtained by a person domiciled in India in the prescribed form which contained the words "no objection to return to India certificate". It is consequently contended that in the absence of any such prescribed form at the time when the petitioner left in June 1948 with his mother for Pakistan there was no question of obtaining any such certificate and the permission of the City Magistrate should be deemed to be equivalent to the same. As regards the second requirement in the notifications about obtaining a permit for permanent return to India, the argument raised has already been noticed. The petitioner''s counsel has very strongly relied on the language of the letter dated 29th October 1952 (Annexure VIII) and it is vehemently urged that looking at all the previous history of the case little doubt was left that the Government had decided to permit the petitioner and his mother to stay permanently in India. It is correct that when the petitioner left for the second time in June 1948 with his mother for Pakistan no such certificate of identity was necessary to be obtained as was made incumbent by the rules framed under the Influx from Pakistan (Control) Act, 1949 but if the petitioner wishes to take advantage of the exemption or benefit conferred by the notifications in question he must satisfy the requirements and conditions laid therein and if the. Government has come to the conclusion that he does not satisfy those requirements and if that conclusion can be sustained even on technical grounds, it is difficult to see how this Court can interfere under Article 226. Even with regard to the second condition of a permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent return, that had to be in a particular form which has been prescribed and according to rule 4 of the Permit System Rules, 1949, the application for that permit had to be submitted to the High Commissioner or Deputy High Commissioner for India in the relevant form. It appears from the scheme of the aforesaid rules that permits for permanent return to India were meant to be issued to such persons who had migrated from India on or before the 15th August 1947 and, therefore, these permits could be obtained only from the High Commissioner or the Deputy High Commissioner. The permission of the Government conveyed by the Assistant Secretary to Government, Home Department, to the District Magistrate, Aligarh, vide Annexure VIII cannot possibly be regarded to be a permit for a permanent return to India under the Influx from Pakistan (Control) Act, 1949. Thus the petitioner did not fulfil the second essential condition also contained in the notifications, with the result that if the Government has now given a decision against the petitioner, it cannot be said that it is contrary to the notifications in question or is not in conformity with the relevant statutory enactments and rules. Actually the order which is now challenged (copy of which is Annexure XIII) shows that the Government treated the matter as if the petitioner was applying for restoration of his property but since the petitioner had raised the questions which have been discussed by me in the petition I have given due consideration to the points agitated and I have come to the conclusion that this petition must fail and it is dismissed. In the circumstances, however, I leave the parties to bear their own costs.