AJAIB SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is a petition by one Ajaib Singh under Article 226 of the Constitution. The petition is made on behalf of his alleged daughter Mukhtiar Kaur alias Sardaran who is at present being detained in the Muslim Girls Refugee Camp at Jullundur. The petitioner's contention is that he was married to Mukhtiar Kaur's mother about fourteen years ago and that Mukhtiar Kaur is not an abducted woman within the meaning of Act 65 of 1949 and she has therefore been wrongly taken away from his protection and confined in the Refugee Camp. It is further contended in the application that the authorities intend to send Mukhtiar Kaur away to Pakistan. A copy of the order passed by the Tribunal constituted under the above-mentioned Act has been placed before us. The Tribunal has found as a matter of fact that Mukhtiar Kaur alias Sardaran is an abducted woman. This finding of the Tribunal is final and cannot be questioned in this Court. It is, however, contended on behalf of the petitioner that Act No. 65 of 1949 is ultra vires the Constitution. Mr. Doabia, who argued the case on behalf of the petitioner, has raised a number of points in support of his argument. He contended in the first place that Mukhtiar Kaur is citizen of India as her case is covered by the definition of Indian citizen given in Article 5. It is only a Court of law that can determine whether a certain person is or is not a citizen of India and the powers of the Tribunal trespass on the right of a citizen to have his status declared by a competent Court of law. He further contends that the provisions of the Act violate the fundamental rights of Indian citizens set out in Article 19 of the Constitution. a citizen of India has a right to move freely throughout the territory of India and to reside and settle in any part of the territory of India, and assuming that Mukhtiar Kaur is a citizen of India, her rights have been violated although her case does not fall under any of the Exceptions to Article 19. Moreover, a citizen of India cannot, under any law whatsoever, be sent out of the territory of India. It is further contended that the Act violates the provisions of Article 22 of the Constitution, which deals with the case of all persons whether they are Indian citizens or not. And finally it is contended that the Tribunal does not follow any procedure consistent with natural justice. It makes no enquiry and merely endorses the recommendations of a subordinate officer. It is pointed out that no rules of procedure have been framed by the Central Government as contemplated by section 10 of the Act and that the Tribunal acts in every case and at any rate, has acted in this particular case in a wholly arbitrary and capricious manner. The Tribunal exercises quasi judicial functions and is therefore subject to the superintendence of this Court under the provisions of Article 227 of the Constitution.

(2.) These are matters of far reaching importance. There are several petitions of this type pending in this Court and similar petitions continue to be in. It is desirable that these matters should be considered in detail by a large Bench. I am, therefore, of the opinion that the case should be laid before my Lord the Chief Justice for the constitution of Bench of three or more Judges to consider the question of the validity of Act, 65 of 1949. I would draw up the following provisional questions but the Bench constituted to consider the matter will not be obliged to confine itself within the narrow limits of the phraseology employed by me;

(3.) In Criminal Writ Nos. 137, 143 and 149 of 1951 a similar objection is raised and these may also be put up along with Ajaib Singh's petition before the Full Bench. - I agree.