S R BHANSALI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE appellant, who is a citizen of India, wanted to enter Gadra City -- which is included in the territory of Sind which India conquered in India-Pakistan War of december 1971 -- but he was prevented by the Military authorities. He complained by means of a petition under Article 226 of the Constitution of India that his fundamental rights under Article 19 (1) (d) (e) and (f) were violated. The territory which India conquered became part of India under the Constitution urged the appellant and he had a fundamental right to freely move therein. This territory could not be ceded to Pakistan except by an amendment of the Constitution and the agreement reached between India and Pakistan on 2/3rd July, 1972 -popularly called the Simla Agreement -- whereby it was proposed to return the territory aforesaid was ultra vires of the Constitution because the Union Cabinet or the President of the Republic of India had no power to ratify it. The learned Single judge dismissed the petition in limine by a detailed order on the grounds that mere physical possession is not acquisition unless there is admittance amounting to annexation by law: that administration of the conquered territory was only evidence of civilized behaviour: that he had no territorial jurisdiction to adjudicate the actions of the Cabinet and the President because no part of the cause of action arose within the jurisdiction of this High Court. The appellant has come up in appeal before us.

(2.) HAVING regard to the elaborate arguments addressed to us; the nature of the controversy and the close examination we have bestowed, it will be proper if we briefly mention our reasons for rejecting this appeal.

(3.) THE learned counsel's repeated emphasis was on the opinion expressed by their lordships of the Supreme Court in In re Berubari's case, AIR 1960 SC 845 (para 34 ). According to him conquest of a territory amounted to automatic acquisition and that Part of Sind which India conquered in 1971 became its integral part. He referred to us to Kautilya and Manu in support of the proposition. His further submission was that the running of the civil administration in the conquered territory by Indian officers and meeting the expenditure out of country's funds besides the reported unfurling of the national flag by the Commissioner Shri K. D. Ujjwal are acts which unmistakably evidence the intention of annexing of the territory by the Government. In any event the intention could be ascertained by notice to the Government, if any doubt was entertained.