MEMON ABDUL AJIJ JIVA Vs. STATE

JUDGEMENT

(1.) BOTH the above revision applications are being dealt together, as the facts and the points of law involved in the cases are similar. Both the applicants had migrated to Pakistan and had obtained temporary permits to visit India from the High Commissioner for India at Karachi. The permits in both the cases were for three months from 30th August 1948 to 29th November 1948. On the expiry of the period of the permits, the applicants did not return to Pakistan but over -stayed at Rajkot and they were consequently prosecuted, under Section 4 of Ordinance No. XVII of 1948 (Influx from West Pakistan (Control) Ordinance, 1948) promulgated by the then Governor General of the Dominion of India. Section 4 of the Ordinance reads as is under:

(2.) MR . B.M. Buch, the learned Advocate for the applicants, has raised some legal points which require consideration. The first point urged by him is that this Ordinance No. 17 of 1943 is not applicable to the State of Saurashtra. It is common ground that the Ordinance came into force in August 1948, and before this date the State of Saurashtra had acceded to the Indian Dominion. Clause (2), Section 1 of the Ordinance: states 'It extends to the whole of India.' II is clear that by virtue of the accession the State of Saurashtra was included in the Dominion of India under Section 5 of the Government of India Act, 1935, as adapted by the India (Provisional Constitution) Order and other amendments. The Governor General in promulgating the Ordinance purported to extend his application to the whole of the Indian Dominion including the State of Saurashtra. The objection raised by the learned Advocate for the applicants however is that the Governor General had no authority, to legislate by Ordinances so far as the territory of Saurashtra State is concerned on the ground that in the Instrument of Accession the State of Saurashtra had yielded authority to legislate only to the Dominion Legislature and not to the Governor -General. Clause 3 of the revised Instrument of Accession of the State of Saurashtra. which was signed by the Raj Pramukh of Saurashtra on 22.5.1948, reads as under:

(3.) THE learned Advocate for the applicants then relied upon Clause 9, Instrument of Accession, which reads as under: