Baxi, J.

1. The Petitioners 1 and 2 are the minor children of Abdul Satar Haji Habib Umar of Dhoraji. Petitioner No. 8 is the wife of this Abdul Satar. Petitioners Nos. 5, 6 and 7 are the sons of Haji Habib. Petitioner No. 3 is a minor and Petitioner No. 4 is Haji Habibs wife, The Petitioners visited Karachi in March. 1948 on a temporary visit and returned to India in October 1948 under what they called a permanent permit. After their return to India they were prosecuted before the First Class Magistrate, Dhoraji, under Sections 3 and 5 of the Influx from West Pakistan (control) Act 1949 on the allegation that their permit was false or forged but were discharged. The Petitioners allege that the Police directed them on or about 22nd September 1950 to quit Dhoraji within eight days and go to Pakistan and informed them that if they did not do so, they would be physically removed. Written orders were however not served upon them. They pray that a writ declaring that the Influx from West Pakistan (Control) Ordinance and the Act and the Rules made thereunder are ultra vires and that they cannot be expelled or physically removed from Saurashtra and that an order prohibiting their removal from Dhoraji and out of the Jurisdiction of the State be issued to the opponents and that it be declared that the Petitioners have a right to remain and stay in Dhoraji and that the said right be confirmed.

An endorsement on the permit shows that they arrived at Bombay from Karachi on 19-10-48. The permit is on a form No. 18880 meant for temporary permit for entering the Indian Dominion. The form is from the Permit Book No. 189, The permit purports to have been issued, to Petitioner No. 5 on 2-10-48 and bears the rubber stamped signature of the High Commissioner for India in Pakistan and the seal of his office. Details such as the applicants name, permanent address in Pakistan etc. have been entered in ink in the blanks provided for the purpose. The purpose of the visit and the places to be visited have been entered in the permit as "going home Dhoraji" and the duration of the visit has been described as "permanent". The permit has the following printed endorsement below the particulars:

The applicant whose details arc given above is permitted to stay in India for the purpose specified above form ... 19...

The blanks have not been filled up. The names of the rest of the Petitioners have been mentioned on the reverse.

2. The Petitioners contention is that they entered India under a permanent permit and their stay was not in contravention of any law and the Central Government should not remove them from India. They further submitted, that the Ordinances and the Act relating to the control of influx from West Pakistan are ultra vires of the authority of the Governor-General and the Indian Dominion Legislature and can have no application in Saurashtra. Consequently when they entered Saurashtra there was no law in force in Saurashtra which prohibited their entry into Saurashtra and therefore, the question of the genuineness or otherwise of the permit did not arise and they could not be removed from Saurashtra. The Ordinances and the Act and the Rules thereunder, it was contended, violate the Petitioners fundamental rights as citizens to move and settle anywhere in India. They lastly submit that they were discharged by a competent Court of charges under Sections 3 and 5 of the Influx from West, Pakistan (Control) Act and it was not open to the Government to contend that the permit was a false permit and that they had committed the offence of having entered into India under a false permit. On behalf of the Government it was contended that the Petitioners have entered India under a false permit and were, therefore, liable to be removed. The Influx from West Pakistan (Control) legislation was good law in Saurashtra. The Petitioners having migrated to Pakistan after March, 1947 could not claim the status of citizenship of India and had no fundamental rights.

3. When the Petitioners entered India, Ordinance No. XVII of 1948 was already brought into force in Saurashtra. Section 3(1) prohibited the entry of any person into India from any place in West Pakistan unless he was in possession of a permit or in the case of a person not belonging to India or Pakistan he was in possession of a valid passport or unless he was exempted from the requirements of being in possession of a permit by or in accordance with the rules made under this Section. By Sub-section (2) the Central Government was invested with powers to make rules touching certain matters. Under Section 4 contravention of the provisions of Section 8 or any rule made thereunder was made punishable and Section 6 invested the Government with powers, to direct removal from India of any persons from India who entered India in contravention of the provisions of Section 3 Rules under this Ordinance called the Permit System Rules 1948 were published under Notification No. II (55) 48-GEN dated 7th September 1943. Permits were classified by these rules under three heads viz. (i) permits for temporary visits, (ii) permits for resettlement or permanent return or (iii) permanent permits. A fourth class of permits viz. to return to India was introduced by Notification dated 5-10-48 but we are not concerned with this class of permits because the permit under which the Petitioners entered India purports to have been issued on 2-10-48 before the introduction of the permits to return to India.

Ordinance No. XVII was replaced by Ordinance No. XXXIV of 1948 dated 10-11-48. Entry into India without a permit in contravention of Section 8 of the Ordinance was made punishable and Section 7 conferred upon the Central Government the power to direct removal of any person who has committed the offence against the Ordinance or against whom a reasonable suspicion exists that he has committed an offence. Ordinance 34 was repealed by Act. 23 of 1949. New rules have been made under the Act and Rule 29 empowers the Central Government or the authority issuing a permit to cancel the same without giving any reasons. It will be noticed that while the power to direct removal to a person under Ordinance XVII was confined to persons who were proved to have entered India without a permit, this power was extended by the new Ordinance and by the Act against persons who were even suspected of having entered India without a permit.

3A. The Governments contention is that the Petitioners permit is a false or a forged permit and, therefore, their entry must be regarded as an entry without a permit and consequently they are liable to removal from India. The Petitioners deny that the permit is not genuine. They further contend that they were prosecuted before a competent Court under Sections 3 and 5 of the Influx from West Pakistan (Control) Act and were discharged. It is, therefore not open to the Government to contend that they entered India on a false permit. Although the Petitioners may not be prosecuted after discharge, there is no legal bar against their prosecution for the same offence though ordinarily the prosecution will not be sustained in the absence of a fresh or additional evidence.

In this case the Chief Secretary, Government of Saurashtra has received a letter from the Government of India advising that it has been reported by the High Commissioner for India in Pakistan that, his Permit Book containing 50 blank forms Nos. 18851/18900 was stolen from the Permit section, of his office and that persons had entered India with permits written out on these stolen forms. The permit under which these Petitioners entered India has undoubtedly been written on one of these forms. The Central Governments letter was not produced in the enquiry in the Criminal Case before the learned Magistrate. His order shows that no materials except the permit were placed before him and consequently he discharged them but the production of the letter of the Government of India puts a different complexion upon the case. The letter raises a suspicion about the genuineness of the permit. Moreover, the permit appears on the face of it to be irregular. A genuine permit should have been issued on a form appropriate for a permanent permit under Rule 3(iii) of the Permit Rules. The present permit however purports to have been issued on a form intended for temporary permits under Rule 3(i) The printed endorsement at the end of the permit very clearly indicates that the permit holder is permitted to stay in India from one specified date to Anr. . The blanks for the dates have not been filled in.

The Government of Indias letter and the fact that the permit purports to have been issued on an inappropriate form are prima facie evidence that the permit is unauthorised or a false permit and consequently the Petitioners entry into India on the strength of this permit is equivalent to an entry without a permit. The Government of Indias letter was however not produced in the Magistrates Court and we should hesitate to hold that so long as the order of discharge subsists, the Petitioners committed the offence of entering India without a permit but these materials are sufficient for coming to the conclusion that they furnish grounds for a reasonable suspicion that they entered India under a false permit. This could not have been a good ground for removing the Petitioners from India under Ordinance No. XVII of 1947 but the law has since been altered and persons against whom reasonable suspicion exists that they entered India without a permit can also be removed under the Ordinance No. XXXIV and Act XXIII of 1949.

4. The learned Advocate questioned the authority of the Dominion Government to make any law with regard to the influx from West Pakistan for Saurashtra and argued that the legislative authority of the Indian Dominion extended to those subjects in respect of which it was delegated to the Dominion Legislature by the Rajpramukh under the Instrument of Accession. It was further argued that assuming that the Dominion Legislature had the power under the Government of India Act 1935 to make the law for Saurashtra, it was not competent for the Governor-General to exercise that authority by promulgating an Ordinance having the effect of law in Saurashtra. Reliance was placed for this argument on -- Mahomed Zahural Huque v. State : AIR 1950 MP 17 [LQ/MPHC/1949/1] and it was argued that as there was no law In Saurashtra at the time of the Petitioners entry into India which prohibited their entry in Saurashtra without a permit, the question of the genuineness or otherwise of the permit was not relevant and that they could not be removed from Saurashtra. These points have been fully dealt with in Criminal Appeal No. 42 of 1951 (S.C.) of this High Court in which the Madhya Bharat decision relied upon by the learned Advocate has been dissented from. It is, therefore, not possible for the Petitioners to contend that the Influx from West Pakistan (Control) Ordinance and Act have not the sanction of law in Saurashtra.

5. It was then argued that the Petitioners are all citizens of India. They had a fundamental right, to reside and stay in Dhoraji under Article 19(e) of the Constitution and the Influx from West Pakistan (Control) Ordinance and Act could not deprive them of this right. Act. 7 of the Constitution however operates an a bar to their claim to the status of the citizens of India. On their own admission they proceeded to Pakistan in March 1943 but as they did not return under a permit for re-settlement or permanent return, they are not entitled to claim citizenship of India or any fundamental rights under the Constitution. It is true that they allege that they visited Karachi on a temporary visit but they proceeded to Pakistan in times of great political changes and when migrations from one Dominion to Anr. were taking place. They stayed in Pakistan for more than six months and do not explain why they did so. Under the circumstances they must be regarded as having migrated to Pakistan unless they can make out that they happened to be in Pakistan under circumstances beyond their control. The following statement of the law from "International Law and Organization." by P.I. Varghese 290 may be usefully quoted here:

Migration, some times takes place, on account of political changes in the country or due to internal disturbances. Every revolution in its wake uproots a vast number of people from their homelands who are forced to settle down abroad. Following the partition of India there were great disturbances and thousands of people were uprooted from their homelands and there were great population movements from either side of the border.

The Petitioners have, therefore, lost their status by virtue of Article 7 of the Constitution.

6. The learned Advocate for the Petitioner however urged that Haji Habib the head of the family and his son Abdul Satar are both citizens of India and the present Petitioners who are their wives and children must be considered to be citizens of India. This argument cannot be accepted. The provisions of Article 7 are very clear and it is not open to them to contend that they are citizens of India on the strength of Haji Habib or Abdul Satars status. It was next contended that at any rate Petitioners Nos. 1, 2, 3, 4 and 8 who are minor children and wives of Haji Habib and Abdul Satar should be considered as citizens of India. This argument is also without any substance and must be rejected. The Petitioners Nos. 4 and 8 i.e. the wives of Haji Habib and Abdul Satar are majors and if they chose to migrate to Pakistan after 1st March 1947, they must lose their citizenship unless they obtain a permit for re-settlement or permanent return under Article 7. The same argument holds good in the case of the minor Petitioners who went with their mOrs. .

7. We might lastly observe that the rules under Act XXIII of 1949 conferred upon the Government in express terms the power to cancel a permit. This power was not conferred under the Permit System Rules of 1948. It is however implicit because an authority which can issue a permit has inherent jurisdiction to cancel the same. It was contended that the power to make rules conferred upon the Government did not empower the Government to make a rule authorising them to cancel the permit. In our opinion it is not necessary that a power to make this rule should be expressly conferred by the Act. See -- Mahomed Ibrahim v. High Commr. for India in Pakistan AIR 1951 Nag 38 at p. 42. The Govt. have thus the power to nullify any writ which may be issued against them. For this reason also it is not possible to grant any writ prayed for by the Petitioners. The Petitioners petition is, therefore, ordered to be dismissed with costs.

Shah, C.J.

8. I agree.

Chhatpar, J.

9. I agree.