ABDUL SALAM Vs. UNION OFINDIA

JUDGEMENT

(1.) THIS is a second appeal by Abdul Salam from the decree of the Additional Civil Judge, Aligarh, affirming that of the Additional Munsif, Augarh, dismissing his suit for permanent injunction to restrain the Union of India and the State of Uttar Pradesh from deporting him to Pakistan. The plaintiff-appellant alleged in his plaint that he was born in Aligarh and domiciled there at the commencement of the Constitution of India and is a citizen of India as defined in Article 5 of the Constitution; that in March 1950, there was an outbreak of serious communal disturbances at Aligarh and several other places in Uttar Pradesh which for some time completely paralysed the civil administration and during which the members of the minority community were subjected to great misery and trouble and their houses and other property were looted and burnt and there was an extensive loss of life; that these disturbances created a sense of insecurity in the mind of the minority community; that because of the activities or communal elements in India and the State of Indo-Pakistan relations, a situation was created in which law and order were at a discount; that faced with this situation, the plaintiff decided to take temporary asylum till the situation in India became normal, and he went to Pakistan in May 1950 without the least intention of migrating to that country on a permanent basis; that with the return of normal conditions in India, the plaintiff along with other Muslims who had sought asylum in Pakistan under similar circumstances expressed their desire to return to India; that the circumstances which compelled the plaintiff to leave his native home and the justice of his claim to return to India were recognised in the agreement between the Prime Minister of India and Pakistan, popularly known as the Nehru Liaqat Pact wherein it was mutually agreed that Indian Muslims who had left Uttar Pradesh for Pakistan because of the disturbances between February and May 1950 should be repatriated, that availing of this opportunity the plaintiff tried to return to India, but although several thousands of persons were repatriated and allowed to settle in India in pursuance of the aforesaid inter-Dominion agreement, the plaintiff continued to languish in Pakistan; that ultimately, having despaired of all hopes of obtaining permission to return to India, he came to this country on a passport issued by the Government of Pakistan because there was no other way left for him to return to his home; that his family and his parents are living in India as Indian citizens; that in these circumstances the obtaining of a Pakistani passport by the plaintiff did not in any way affect his status as a citizen of India; that the defendant Governments had issued orders directing the plaintiff to leave India; that these orders are in infringement of his fundamental rights as a citizen of India to reside and settle in any part of the country; that he cannot be compelled to leave India for Pakistan. The plaintiff appellant asked for an injunction to restrain the two Governments from deporting him.

(2.) THE suit was resisted by both the Governments, and a joint written statement was filed. The defendants alleged that the plaintiff had not left India because of fear of disturbances but with the intention of settling down in Pakistan. It was denied that he is a citizen of India. It was further alleged that the plaintiff had come to India after obtaining a Pakistani passport but had stayed beyond the permitted period which he had no right to do. It was also pleaded that the Court had no jurisdiction to hear the suit.

(3.) THE trial Court framed the following four issues:--