Sadiq Ali Vs. State of U.P. - Court Judgment

Excerpt:
(i) constitution - citizenship - article 7 of the constitution of india - migrated to pakistan in 1948 and returned in 1954 - applicant convicted under section 14 of foreigners act, 1946 - minority of applicant is at the time of migration - intention irrelevant after construing the word 'migrated' - persons migrated to pakistan after 1.3.1947 shall not deemed to a citizen of india. (ii) government's permission - section 9 (2) of indian citizenship act,1955 - applicant migrated in 1948 - question whether government decision necessary for his prosecution - applies only for citizens of india who acquired foreign citizenship on 26.1.1950 - held, central government decision not necessary for prosecution. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. orderb.n. katju, j. 1.the applicant was convicted under s. 14 of the foreigners act, 1946 (hereinafter referred to as the act) and was sentenced to two years rigorous imprisonment by the judicial magistrate, khalilabad at basti by his judgment dated 24-9-1979 passed in criminal case no. 1154 of 1979. he filed criminal appeal no. 167 of 1979 which was dismissed by the iv additional sessions judge, basti by his judgment dated 10-8-1981. he thereafter filed this revision in this court.2. the learned single judge who heardthis revision referred the undermentioned two questions for decision to a bench:(1) whether a person cannot be prosecuted under s. 14, foreigners act, without obtaining a decision of the central government under s. 9(2), indian citizenship act? (2) whether the decision has to be obtained from the central government in such a case by the state or by the person who is affected?3. it appears that the applicant was born on 5-6-1932 in village maghar, police station khalilabad in the district of basti and migrated to pakistan in 1948. he came to india on 16-9-1954 on pakistani passport no. 199376 dated 24-7-1954 and indian visa of category c no. 48284 dated 25-8-1954 valid till 24-11-1954. he stayed in india beyond the aforesaid period and a case was registered against him under s. 14 of the act on 17-6-1959. he, however, could not be traced for a long time and was ultimately arrested on 8-3-1975 from the house of his father at maghar.4. article 7 of the constitution is as follows:--'7. rights of citizenship of certain migrants to pakistan -- notwithstanding anything in articles 5 and 6, a person who has after the first day of march, 1947, migrated from the territory of india to the territory now included in pakistan shall not be deemed to be a citizen of india: provided that nothing in this article shall apply to a person who, after having so migrated to the territory 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 and every such person shall for the purposes of cl. (b) of art. 6 be deemed to have migrated to the territory of india after the nineteenth day of july, 1948'. 5. as the applicant migrated from the territory of india to the territory now included in pakistan in 1948 and did not return to the territory of india under a permit for resettlement or permanent return issued by orunder the authority of law he shall not be deemed to be a citizen of india in view of art. 7 of the constitution of india. he was thus not a citizen of india on 26-1-1950. it is true that he was a minor in 1948 when he migrated to pakistan and was also a minor on 26-1-1950 when the constitution of india came into force but this is of no importance in view of the decision of the supreme court in kulathil mammu v. state of kerala : 1966crilj1217 in which it was held that the word 'migrated' in art. 7 of the constitution means movement from one place to another whether or not there is any intention of settlement in the place to which one moves and it was observed:'in the view we have taken of the meaningof the word 'migrated' in art. 7, it is unnecessary to consider the other point raisedon behalf of aboobacker, namely that aminor can never have the intention implicit inthe narrower meaning of the word'migrated'.'it may be mentioned that aboobacker on whose behalf the writ petition from which the aforesaid appeal had arisen was filed was born on 5-3-1936 and had left india in 1948 and had come to india for the first time, in 1954 on a pakistani pass-port and an indian visa.6. as a decision under s. 9(2) of the indian citizenship act is necessary only in those cases in which a citizen of india on 26-1-1950 has acquired the citizenship of any other country it was obviously not required to be obtained in the case of the applicant who was not a citizen of india on 26-1-1950. in these circumstances the two questions referred to us for decision do not arise in this case.7. for the reasons given by us we do not consider it necessary to answer the questionsreferred to us for decision.8. let our opinion be placed before the appropriate bench.9. order accordingly.

Judgment:
ORDER

B.N. Katju, J.

1.The applicant was convicted under S. 14 of the Foreigners Act, 1946 (hereinafter referred to as the Act) and was sentenced to two years rigorous imprisonment by the Judicial Magistrate, Khalilabad at Basti by his judgment dated 24-9-1979 passed in Criminal Case No. 1154 of 1979. He filed criminal appeal No. 167 of 1979 which was dismissed by the IV Additional Sessions Judge, Basti by his judgment dated 10-8-1981. He thereafter filed this revision in this Court.

2. The learned single Judge who heardthis revision referred the undermentioned two questions for decision to a Bench:

(1) Whether a person cannot be prosecuted under S. 14, Foreigners Act, without obtaining a decision of the Central Government under S. 9(2), Indian Citizenship Act?

(2) Whether the decision has to be obtained from the Central Government in such a case by the State or by the person who is affected?

3. It appears that the applicant was born on 5-6-1932 in village Maghar, Police Station Khalilabad in the District of Basti and migrated to Pakistan in 1948. He came to India on 16-9-1954 on Pakistani Passport No. 199376 dated 24-7-1954 and Indian Visa of category C No. 48284 dated 25-8-1954 valid till 24-11-1954. He stayed in India beyond the aforesaid period and a case was registered against him under S. 14 of the Act on 17-6-1959. He, however, could not be traced for a long time and was ultimately arrested on 8-3-1975 from the house of his father at Maghar.

4. Article 7 of the Constitution is as follows:--

'7. Rights of citizenship of certain migrants to Pakistan -- Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:

Provided that nothing in this article shall apply to a person who, after having so migrated to the territory 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 and every such person shall for the purposes of Cl. (b) of Art. 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948'.

5. As the applicant migrated from the territory of India to the territory now included in Pakistan in 1948 and did not return to the territory of India under a permit for resettlement or permanent return issued by orunder the authority of law he shall not be deemed to be a citizen of India in view of Art. 7 of the Constitution of India. He was thus not a citizen of India on 26-1-1950. It is true that he was a minor in 1948 when he migrated to Pakistan and was also a minor on 26-1-1950 when the Constitution of India came into force but this is of no importance in view of the decision of the Supreme Court in Kulathil Mammu v. State of Kerala : 1966CriLJ1217 in which it was held that the word 'migrated' in Art. 7 of the Constitution means movement from one place to another whether or not there is any intention of settlement in the place to which one moves and it was observed:

'In the view we have taken of the meaningof the word 'migrated' in Art. 7, it is unnecessary to consider the other point raisedon behalf of Aboobacker, namely that aminor can never have the intention implicit inthe narrower meaning of the word'migrated'.'

It may be mentioned that Aboobacker on whose behalf the writ petition from which the aforesaid appeal had arisen was filed was born on 5-3-1936 and had left India in 1948 and had come to India for the first time, in 1954 on a Pakistani Pass-port and an Indian Visa.

6. As a decision under S. 9(2) of the Indian Citizenship Act is necessary only in those cases in which a citizen of India on 26-1-1950 has acquired the citizenship of any other country it was obviously not required to be obtained in the case of the applicant who was not a citizen of India on 26-1-1950. In these circumstances the two questions referred to us for decision do not arise in this case.

7. For the reasons given by us we do not consider it necessary to answer the questionsreferred to us for decision.

8. Let our opinion be placed before the appropriate Bench.

9. Order accordingly.