S R BHANSALI Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER S. R. Bhansali, a resident of Rajasthan, has filed this writ petition under Article 226 of the Constitution claiming that as a citizen of India he has a fundamental right to enter into and settle down in Gadra City which formerly was the part of Sind (Pakistan) but after the Pakistan war bf 1971 has become part of india and as such no restraint can be put on him to enter that town. His grievance is that when he tried to enter into Gadra City, the military authorities, who are incharge of the administration of that acquired territory, stopped him at the checkpost located at the outskirts of the said Gadra City. The petitioner has also challenged the competence of the Prime Minister to enter into an agreement with the President of Pakistan for the return o the acquired territory to Pakistan after the alleged Simla agreement was ratified by the Central Government, and it is in this context that the petitioner has prayed that this Court by issuing an appropriate writ may decide: (1) That the Simla agreement is ultra vires the constitution; (2) that the Union cabinet and the President of India have no power to ratify the Simla agreement; (3) that the territory acquired under the December, 1971 war is part of India and cannot be transferred to Pakistan without an Act of parliament; and (4) that the Parliament including the President of India, be directed to give a new name to the acquired territory and the Government of India or the Government of Rajas-than or the Commander who is incharge of the acquired territory be directed not to transfer that territory to Pakistan and not to withdraw the Indian forces to the Indian side of the international border.

(2.) THE main argument of Mr. Lodha is that India has been defined under Article 1 of the Constitution and under Clause (3) of this Article India comprises of:

(3.) CLAUSE (3) (c) of Article 1 is relied upon by learned counsel for the petitioner to press his claim to enter into Gadra City on the ground that as soon as the Indian forces captured the Pakistan Territory it automatically became part of India by virtue of Clause (3) (c) of Article 1 as it is a territory acquired by conquest and as such every citizen of India has a right to enter into that territory and if he so desires he could settle down therein. Mr. Lodha expressed at the bar that his client has a desire to establish himself in the newly acquired territory and being a citizen of India he cannot be restrained to move In any part of India, whether it is an acquired territory or a territory mentioned in Sub-clauses (a) and (b) of Clause (3)of Article 1.