SHISHUWALA PAL Vs. UNION OF INDIA

JUDGEMENT

(1.) In this petition under Articles 226 and 227 of the Constitution of India the petitioners have prayed for a writ of mandamus restraining the respondents from treating them as Foreign Nationals of Bangladesh/or their stay in India as unauthorised, and for a writ of prohibition restraining the respondents from taking them into custody for deporting them outside India.

(2.) (i) Many facts are undisputed. Petitioners Nos. 1 and 2 are, respectively, the mother and younger brother of one Narayan Chandra Pal (for short, called Pal) who came to India in 1962 and had been residing at village Punji, Gram Panchayat Chopna, in District Betul. In December 1971, war broke out between India and Pakistan. East Bengal was then part of Pakistan. Lacs of Hindu refugees from East Bengal came to India, The war culminated in the creation of a new State, now known as "Bangla Desh". These two petitioners also came to India as "'refugees". The Government of India on humanitarian considerations, has set up several Rehabilitation Camps in various parts of India. The petitioners were also kept in one of such camps. Undisputedly, petitioner No. 2 was then (on 24-4-1971) a minor, being 11 years old. G.O.I. had issued Schedule to order No. 11013/5/71-F, dated 5th May 1971, from Ministry of Home Affairs.

(3.) According to the petitioners, both of them were always dependents of Pal, who is an Indian citizen, and related to them as son and elder brother, respectively; that, Pal had been their guardian even when petitioners were in East Bengal; that, they were permitted by the Ministry of Home Affairs, Union of India under the said certificate (Annexure-A); that, they were even recognized as voters in the Voters' List; and petitioner No. 2 was allowed to contest the panchayat elections; and petitioner No. 2 was returned elected as Sarpanch; that therefore they are Indian citizens; that, the petitioners were not ordinary travellers required to obtain passports, but had come under "peculiar circumstances" referred earlier, and respondent's action of deportation on the grounds that they do not possess valid passports and are foreign nationals is illegal; it is alleged that the defeated Sarpanch instigated action against the petitioners. Hence, the prayer referred in para 1 (supra).