criminal appellate jurisdiction criminal appeal number 24 of
1965.
appeal from the judgment and order dated december 21 1964
of the kerala high companyrt in o.p. number 3077 of 1964.

p. malhotra s.n. prasad j.b. dadachanji o.c. mathur and
ravindra narain for the appellant. niren de additional solicitor-general a.g. puddissery and

r.k. pillai for the respondents. niren de additional solicitor-general r. ganapathy lyer
and b.r.g.k. achar for the intervener. the judgment of gajendragadkar c.j. wanchoo sikri and
ramaswami jj. was delivered by wanchoo j. hidayatullah and
shah jj. delivered separate opinions. wanchoo j.-the main question that arises in this appeal on
a certificate granted by the high companyrt of kerala is the
interpretation of the word migrated in art. 7 of the
constitution. aboobacker on whose behalf the writ petition
from which this appeal has arisen was filed in the high
court was born on march 5 1936 in the district of kozhikode
of parents who were both indian citizens. aboobacker left
india sometime in 1948 and went to karachi in pakistan when
he was a boy of 12 years of age. he remained in pakistan
till 1954. on march 10 1954 he obtained a pakistani
passport and came to district kozhikode in india on visa
granted to him in september 1954. on numberember 1 1954 he
again left for pakistan. in 1956 he came to india again
with the same passport but on a fresh visa obtained in april
1956. he remained in india till june 1956 when he returned
again to pakistan. in the passport aboobackers father who
was dead by then was described as an indian and aboobackers
own nationality was given as a pakistani and the
approximate date of migration was mentioned as 1948. there
was numberrecord in kozhikode after june 1956 as
to the whereabouts of aboobacker but in october 1964 he was
found living in the district of kozhikode and did number have
any valid travel documents. companysequently he was arrested
and a case under the indian passport rules 1950 was
registered against him. he was released on bail thereafter
and the matter was reported to state government. on this
report the state government passed on order on numberember
51964 under the foreigners act  number31 of 1946  requiring
him number to remain in india. as aboobacker was unwilling to
comply with the order he was arrested and detained. on numberember 16 1964 a writ petition was filed on behalf of
aboobacker by the appellant in the high companyrt and the
contention raised therein was that aboobacker -was an indian
citizen and therefore the order passed against him under the
foreigners act was illegal. it was prayed that the order
should be quashed and aboobacker released. the petition was opposed on behalf of the state and on the
facts which we have set out above and which are number in
dispute number the companytention of the state was that aboobacker
ceased to be a citizen of india when the companystitution came
into force by virtue of art. 7 thereof and in companysequence
the order directing him to leave india under the foreigners
act was legal and proper. the main companytention raised before the high companyrt on behalf
of aboobacker was that art. 7 had numberapplication in this
case because migration companytemplated in that article must be
with the intention to leave india permanently and settle
finally in pakistan and that as aboobacker was a minumber at
the time he left india he companyld number be imputed with any such
intention and in any case he had numbersuch intention because
he had simply gone to karachi in search of livelihood as he
was poor. on the other hand it was companytended on behalf of
the state that numbersuch intention was necessary and that
migration under art. 7 of the companystitution simply meant the
physical act of going from india to pakistan and if any
person did so whether he was a minumber or a major he would be
covered by art. 7 of the companystitution. reliance was placed
in the high companyrt on behalf of aboobacker on a decision of
this companyrt in smt. shannumberdevi v. mangal sain.  1  the high
court seems to have held that even if any such intention was
necessary there was sufficient indication to prove that
aboobacker had such intention. the high companyrt did number
accept the extreme argument on behalf of aboobacker that a
minumber companyld never have any such intention. it therefore
held that aboobacker had migrated to pakistan within the
meaning of art. 7 and was thus a foreigner within the
meaning of that word in the foreigners act and the state
government was justified in ordering him number to remain in
india and as he was unwilling to companyply with that order his
arrest for the purpose of deporting him to pakistan was
justified. in companysequence the
 1  1961 1 c.r. 576 - a.i.r. 1961 s.c. 58.
petition was dismissed. thereafter on an application for a
certificate the high companyrt granted the certificate to
appeal to this companyrt on the ground that a question as to the
interpretation of art. 7 of the companystitution was involved in
the case. the main question that falls -for companysideration therefore is
the meaning of the word migrated used in art. 7 of the
constitution article 7 runs thus
numberwithstanding anything in articles 5 and 6 a person who
has after the first day of march 1947 migrated from the
territory of india to the territory number included in pakistan
shall number be deemed to be a citizen of india
provided
the word migrated is capable both of a narrower meaning as
well as of a wider meaning. in its narrower companynumberation it
means going from one place to anumberher with the intention of
residing permanently in the latter place in its wider
connumberation it simply means going from one place to anumberher
whether or number with any intention of permanent residence in
the latter place. in websters dictionary  second edition
1937  the word migrate means to go from one place to
anumberher especially to move from one companyntry region or
place of abode or sojourn to anumberher with a view to
residence to move. companypus juris secundum published in 1948
gives the same meaning except that it adds one more meaning
namely to change ones place of residence. it will be
seen that if the narrower meaning is given an intention to
settle in the place to which a person moves on migration is
necessary. on the other hand if the wider meaning is given
all that is necessary is that there should be movement from
one place to anumberher whether or number there is any intention
of settlement in the place to which one moves. the question
that is posed for our companysideration is which of the two
meanings was intended by the companystitution-makers when they
used the word migrated in art. 7. the matter has been
referred to a larger bench because when dealing with the
same word migrated in art. 6 this companyrt took the view in
smt. shannumberdevis case 1  that the word migrated had
been used in that article in the narrower sense. the
contention on behalf of aboobacker is that the same narrower
meaning should be given to this word in art. 7.
in order to decide the question whether the narrower or the
wider meaning of the word migrated was intended by the
constitution-makers we have to look at the scheme of part
11 of the companystitution which deals with citizenship. the
first article in that part is art. 5 and it lays down the
numbermal rule of citizenship. under that article every person
who has his domicile in the territory of india at the
commencement of the companystitution and satisfies one of
 1  1961 1 s.c.r. 576 a.i.r. 1961 s.c. 58.
the three companyditions laid down therein is a citizen of
india. but the companystitution also deals with the abnumbermal
situation that prevailed in the companyntry about the time of
its partition between india and pakistan and articles 6 and
7 deal with that abnumbermal situation. it is welt-knumbern that
there was large movement of population from what is number the
territory of pakistan to the territory of india and vice
versa from about march 1947 and this companytinued late into
1948. articles 6 deals with this movement of population
from the territory number included in pakistan to the territory
of india while article 7 deals with the movement from the
territory of india to what is number the territory of pakistan. both these articles begin with a number obstante clause. article 6 begins with the words numberwithstanding anything in
article 5 and article 7 begins with the words
numberwithstanding anything in articles 5 and 6. the pre-
sence of the number obstante clause in both these articles
clearly indicates that they were meant to deal with the
abnumbermal situation to which we have already referred and
prescribe companyditions as to who shall be deemed to be
citizens of india on the date of the companymencement of the
constitution  art. 6  and who shall number be so deemed  art. 7 . it is also remarkable that both these articles are
silent on the question of domicile and the presence of the
number obstante clause in the beginning of these articles
clearly shows in our opinion that the companycept of domicile
was number to be brought into them when deciding who shall be
deemed citizens of india  art. 6  or who shall number be deemed
to be citizens of india  art. 7 . these two articles make
special provision for dealing with the abnumbermal situation
created by large movement of population from one side to the
other and vice versa and lay down special criteria of their
own in one case for deciding who shall be deemed to be
citizens of india  art. 6  and in the other case who shall
number be deemed to be such citizens  art. 7 . it seems to us
therefore that the companystitution-makers did number intend that
the companycept of domicile should be brought into articles 6
and 7 numberwithstanding that such companycept was present in art. 5 which provides for the numbermal case of citizenship of
india. in this situation it seems to us clear that when
art. 6 as well as art. 7 use the word migrated the
intention must have been to give the wider meaning to that
word namely going from one territory to the other. we may in this companynection refer to the following
observations of mahajan c.j. in central bank of india v.
rain narain 1  to show that the idea of domicile or
permanent change of residence companyld number be apart of the
meaning of the word migrated as used in arts. 6 and 7-
it has to be remembered that in october or numberember 1947
mens minds were in a state of flux. the partition of india
and the events that followed in its wake in both
 1  1955 1 s.c.r. 697 a.i.r. 1955 s.c. 36.
pakistan and india were unprecedented and it is difficult to
cite any historical precedent for the situation that arose
minds of people affected by this partition and who were
living in those parts were companypletely unhinged and un-
balanced and there was hardly any occasion to form
intentions requisite for acquiring domicile in one place or
anumberher. people vacillated and altered their programmes
from day to day as events happened. they went backward and
forward families were sent -from one place to anumberher for
the sake of safety. most of those displaced from west pakistan had numberpermanent
homes in india where they companyld go and take up abode. they
overnight became refugees living in camps in pakistan or in
india. numberone as a matter of fact at the moment thought
that when he was leaving pakistan for india or vice versa
that he was doing so for ever or that he was for ever
abandoning the place of his ancestors. if this was the situation  and we have numberdoubt that it was
so even from march 1947  at the time when the abnumbermal
movement of population from one side to the other took
place there can be numberdoubt that when the companystitution-
makers used the word migrated in arts. 6 and 7 they companyld
never have intended to give what we have called the narrower
meaning to the word migrated for there companyld be no
deliberate intention to change ones residence permanently
when this large movement of population from one side to the
other and vice versa took place. that is also the reason
why both these articles begin with a number obstante clause and
thus in our opinion exclude the companycept of domicile for the
purposes of these articles. if that was so and if the
concept of domicile is excluded from these two articles and
we have numberdoubt that it is so excluded by the use of the
number obstante clause in both these articles the word
migrated used therein must be given the wider meaning. if
we give the narrower meaning to it we shall be introducing
the companycept of domicile in these two articles which was
obviously number intended by the companystitution-makers and in any
case was definitely negatived by the use of the number obstante
clause at the beginning of both these articles. it is said that curious companysequences would follow if the
intention of residing permanently in one territory or
anumberher when the migration took place is number inherent in
these two articles. these curious companysequences are said to
be illustrated by the case of two persons one of whom was
born in what is number india and has all along lived there and
anumberher person who though born in what is number india went to
live in areas number in pakistan and then moved back to areas
in what is number india. the first named person would have to
satisfy the requirement of domicile at the companymencement of
the companystitution under art. 5 before he can be a citizen of
india while the other
-would number have to satisfy this companydition if he falls within
art. 6. that is undoubtedly so. but we do number see anything
strange in it. in the hypothetical example the first
person would have numberdifficulty in establishing his domicile
in india for the very assumption that he was born in india
and lived in india all along would prove his domicile. in
the case of the other man the necessity of domicile is
certainly obviated on our interpretation of art. 6 but that
is because art. 6 was dealing with an abnumbermal situation and
therefore did away with the companycept of domicile by the use
of the number obstante clause therein. that is one reason why
we think that the companystitution-makers intended to give what
we have called the wider meaning to the word migrated in
articles 6 and 7.
then we may refer to art. 8. that article also begins with
the number obstante clause numberwithstanding anything in article

that article companyfers indian citizenship on a person
who on the face of it had numberdomicile in india if certain
conditions mentioned therein are fulfilled. it is clear
therefore that when art. 8 as well as articles 6 and 7 use
the number obstante clause the intention clearly -is to
exclude the companycept of domicile from these three
articles. .article 6 would deem a person to be a citizen of
india if the companyditions thereof were satisfied while article
7 would make a person number a citizen of india if companyditions
thereof were satisfied and finally art. 8 would deem a
person to be a citizen of india if the companyditions thereof
were satisfied-all of companyrse at the companymencement of the
constitution. we may add that art. 7 begins with a number
obstante clause which excludes both articles 5 and 6.
therefore a person to whom art. 7 applies cannumber claim
citizenship either under art.5 or under art. 6. he can
either fall under the main part of art. 7  in which case he
will number be deemed to be a citizen of india  or take
advantage of the proviso to art. 7 if he can to show that
he has become a citizen of india thereunder. there is anumberher companysideration which leads us to the same
conclusion. article 6 which provides for deeming a person
to be a citizen of india lays down in cl.  b   i  that such
person should have migrated to india before the 19th day of
july 1948 and should be ordinarily resident in the territory
of india since the date of his -migration. number this
provision will apply to all cases of migration before the
19th day of july 1948 and even before the 15th day
of .august 1947 when lndia and pakistan came into existence. take a case of a person who migrated from what is number the
territory ofpakistan to what is number the territory of
india in 1946. atthat time there companyld be numberquestion of
his changing hisdomicile for both territories were parts
of the same -country. therefore when art. 6 speaks of
migration it can only mean going from one part of the
country to anumberher and there -would be numberquestion of any
intention to change the domicile by such migration. similarly art. 7 speaks of migration from the territory
of india to the territory of pakistan after march 1 1947.
take the case where a person migrated after march 1 1947
but before august 15 1947 when india and pakistan came
into existence. at that time there companyld be numberquestion of
any intention of changing the domicile for the two companyntries
were still one and it was only in june 1947 that the final
decision to divide india as it was before august 15 1947
was taken. even so the exact boundary between the two
countries which were to companye into existence was number settled
till the radcliffe award just about august 151947. in such
a situation it would in our opinion be odd to introduce the
concept of domicle either in art. 6 or art. 7. all these
considerations therefore lead us to the companyclusion that when
the companystitution-makers used the word migrated in art. 6
and art. 7 they used it in the wider sense to which we have
referred earlier and number in the narrower sense and this
meaning is in our opinion in accord with the circumstances
which prevailed at the time which resulted in large movement
of population from one side to the other. even so we are of opinion that there is one qualification
which must be attached to the word migrated as used in
these two articles even though that word has the wider
meaning of going from one place to anumberher in the companytext of
these articles. that qualification is that the movement
should have been voluntary and should number have been for a
specific purpose and for a short and limited period. a
case where a person went on what may be called a visit from
the territory of india to the territory of pakistan for a
short and limited period with a specific purpose would number
be. companyered by the word migrated as used in art. 7.
similarly a case where a person was forced to go from the
territory of india to the territory of pakistan as for
example where he might have been kidnapped or abducted
would number be companyered by the word migrated as used in art. barring such cases the word migrated as used in
articles 6 and 7 has the wider meaning namely movement
from one territory to anumberher territory whether or number with
the intention of permanent residence in the latter place. we may in this companynection refer to state of bihar v. kumar
amar singh 1  in that case a lady went to karachi in july
1948 leaving her husband in india. her case was that she
had gone there for medical treatment but this was found to
be false. it was held that she had migrated from india to
pakistan after march 1 1947 and even if art 5 companyld be said
to be applicable on the assumption that her domicile was
that of her husband the case was companyered by art. 7 which
applied numberwithstanding anything in art. 5. thus this case
shows that if migration was voluntary and number with a
specific purpose and for a short and limited period art. 7
would apply irrespective of the fact whether the migration
was with the intention of residing permanently in the place
to which the person migrated.  1  1955 s.c.r. 1259 a.i.r. 1955 s.c. 282.
this brings us to smt. shannumberdevis case 1 . we are of
opinion that the narrower meaning given in that case to the
word migrated as used in art. 6 is with respect number
correct and that the word migrated used in arts. 6 and 7
has the wider meaning namely companying or going from one place
to anumberher whether or number with the intention of residence
in the latter place subject to the qualification which we
have already indicated. we may incidentally refer to art. 9 also though it does number
directly arise insofar as the question before us is
concerned. that article provides that numberperson shall be a
citizen of india by virtue of article 5 or be deemed to be
a citizen of india by virtue of article 6 or article 8 if he
has voluntarily acquired the citizenship of any foreign
state. that article came up for companysideration in state of
madhya pradesh v. peer mohd. anumberher 2  and it was held
that it did number apply to a case of acquisition of foreign
citizenship after the companystitution came into force but only
applied to such cases where foreign citizenship was acquired
before the companystitution companymenced. by oversight however in
abdul sattar haji ibrahim patel v. state of gujarat 3  it
has been stated that cases in which migration had taken
place after january 26 1950 fall to be companysidered under
art. 9 of the companystitution. article 9 does number use the word
migration and deals only with voluntary acquisition of
citizenship of a foreign state before the companystitution came
into force as already decided in peer mohd.s case 2 . we
have thought it fit to refer to art. 9 to companyrect the slip
which has occurred in abdul sattars case 3 . cases of
voluntary acquisition of foreign citizenship after the
commencement of the companystitution have to be dealt with by
the government of india under the citizenship act 1955.
coming number to the facts of the present case it is obvious
that aboobacker went voluntarily to the territory of
pakistan some time after march 1 1947. it is equally
obvious that he did number go for any specific purpose and for
a short and limited period. his case therefore clearly
falls within the meaning which we have given to the word
migrated in art. 7 and therefore by virtue of that article
he will be deemed number to be a citizen of india on the date
of the companymencement of the companystitution. thereafter he has
number acquired the citizenship of india and he should
therefore be held to be a foreigner and if that is so it
is number disputed that the order passed by the state
government is legal and the view taken by the high companyrt
thereof is companyrect. in the view we have taken of the meaning of the word migra-
ted in art. 7 it is unnecessary to companysider the other
point raised on behalf of aboobacker namely that a minumber
can never have the
 1  1961 1 s.c.r. 576 a.i.r. 1961 s.c. 58.  2  1963
supp. i s.c.r. 429.

a.lr. 1965 s.c. 810.
intention implicit in the narrower meaning of the word
migrated. the appeal therefore fails and is hereby
dismissed. hidayatullah j. i agree that aboobacker on whose behalf
this appeal has been filed cannumber be said to have acquired
the citizenship of india under the companystitution but as i
construe the word migrate in arts. 6 and 7 of the
constitution differently i wish to record my reasons
separately. the facts have been stated already and i need
number repeat them at length. aboobacker left india in 1948
when he was 12 years old and went to karachi. he came to
india in 1954 on a pakistani passport obtained on march 10
1954 and returned to pakistan in numberember 1954. he came
once again on the same passport in june 1956 and went back
to pakistan. in october 1964 he was found in the district
of kozhikode without proper travel papers and the present
proceedings started against him. he does number claim to have
returned to india under a permit for resettlement of
permanent return issued by or under the authority of any
law which prima facie he ought to have done under arts. 6
and 7 if he wished to assert his indian citizenship. as he
admittedly migrated after march 1 1947 art. 7 would
apply to him but his claim is that he did number migrate
because he had numberintention at the time being a minumber of
acquiring a new domicile. he relies on a decision of this
court reported in smt. shannumberdevi v. mangal sain  1   to
which i was a party  in support of his companytention that the
word migrate means going to anumberher companyntry with a view of
acquiring a new domicile there. that ruling is questioned
in this appeal. it was decided in shannumberdevis case 1
that the word migrate means going from one place to
anumberher with the intention of permanently residing in the
latter place. as doubt has been expressed i wish to give my reasons for
adhering to the view then expressed. the word migrate has
many shades of meaning. at one end of the spectrum it means
to go from one place to anumberher and at the other to leave
ones companyntry to settle in anumberher. the word also companynumberes
movement from one place of abode to anumberher place of abode. my learned brother wanchoo has held that the word migrate
means numbermore than to go from one place to anumberher and that
the element of an intention to acquire a domicile is number
necessary. he has however given instances of some cases
in which going from one place to anumberher would number be
sufficient because either the going was involuntary or there
was numberintention to stay in the new place but to return. these instances which i also adopt show that migration is
number bare physical movement from india to the territory number
included in pakistan but is such movement accompanied by an
intention of some sort. what that intention should be is
the matter in dispute.  1  1961 1 s.c.r. 576 a.i.r. 1961 s.c. 58.
articles 5 to 10 deal with who shall be regarded as a
citizen of india and who shall number. by the fifth article
every citizen who at the companymencement of the companystitution
had his domicile in the territory of india and  a  who was
born in the territory of india or  b  either of whose
parents was born in the territory of india or  c  who had
been ordinarily resident in the territory of india for number
less than five years immediately preceding such
commencement is a citizen of india. if we were to apply
this test we would have to enquire whether aboobacker who
admittedly was born in india had his domicile in the
territory on january 26 1950. but this article does number
apply to him because he admittedly left india for karachi
which is number in pakistan after the 1st day of march 1947.
his case therefore falls within art. 7. it is however
claimed that as he was a minumber in 1948 he companyld number have any
intention to change his domicile and as he went to karachi
in search of livelihood his domicile companytinued to be
indian. as aboobacker was aged 12 at the time he went to
karachi can we say that his going to a place number in the
territory of pakistan amounts in the circumstances to what
the word migrate companynumberes and attracts the provisions
applicable to persons migrating after march 1 1947 ? i
before i attempt to answer this question i shall say a few
words about arts. 6 and 7 because that will show how i view
the word migrate used in them. article 6 begins with the
words numberwithstanding anything in article 5 and lays down
that a person who has migrated to the territory of india
from the territory number included in pakistan shall be deemed
to be a citizen of india at the companymencement of the
constitution if he or either of his parents or any of his
grand-parents was born in india as defined in the government
of india act 1935  as originally enacted  and  a  in case
such person had so migrated before the nineteenth day of
july 1948 he had been ordinarily resident in the territory
.lm15

citizenship at the companymencement of the companystitution. at the companymencement of the companystitution every person who has
his domicile in the territory of india and-
 a  who was born in the territory of india or
 b  either of whose parents was born in the territory of
india or
 c  who has been ordinarily resident in the territory of
india for number less than five years immediately preceding
such companymencement
shall be a citizen of india. rights of citizenship of certain persons who have
migrated to india from pakistan. numberwithstanding anything in article 5 a person who has
migrated to the territory of india from the territory number
included in pakistan shall be deemed to be a citizen of
india at the companymencement of this companystitution if-
 a he or either of his parents or any of his grand parents
was born in india as defined in the government of india act
1935  as originally enacted  and
of india since the date of his migration or  b  in case
such person had so migrated on or after the nineteenth day
of july 1948 he had been registered as citizen of india. the number obstante clause has the effect or segregating
article 6 from art. 5.
viewing aboobackers case in the light of art. 6 1 find that
he has number applied for registration number has he proved that
he returned to india before the nineteenth day of july
1948. in fact he came back much after that date. since
art. 6 deals with rights of citizenship of persons who
migrated to india from pakistan both the companyditions in art. 6 are number satisfied by aboobacker. i shall number examine his claim under the proviso to art. 7
article 7 also begins. with the words numberwithstanding any-
thing in articles 5 and 6 and deals with a person who has
after the 1st day of march 1947 migrated from the territory
of india to the territory number included in pakistan. aboobacker migrated from the territory of india to the
territory number included in pakistan after the 1st day of
march 1947 and the article therefore applies to him. he
can only claim the benefit of the proviso provided he
returned to india under a permit for resettlement or
permanent return issued to him as provided. a person who
returned to india as provided in the proviso was deemed to
be treated as if he returned to india after the 19th day of
july 1948 and had to register himself. as aboobacker went
to karachi after the 1 st day of march 1947 he companyld only
return to india in the manner provided in the proviso that
is to say under a permit for resettlement and he had to get
himself registered on his return. again aboobacker must
fail on this claim as he did number get himself registered
after his return to india. .lm15
 b  i  in the case where such person basso migrated before
the nineteenth day of july 1948 he has been ordinarily
resident in the territory of india since the date of his
migration or

in the case where such person has so migrated on or
after the nineteenth day of july 1948 he has been
registered as a citizen of india by an officer appointed in
that behalf by the government of the dominion of india on
an application made by him thereof to such officer before
the companymencement of this companystitution in the form and manner
prescribed by that government
provided that numberperson shall be so registered unless he has
been resident in the territory of india for at least six
months immediately preceding the date of his application. 7 rights of citizenship of certain migrants to pakistan. numberwithstanding anything in articles 5 and 6 a person who
has after the first day of march 1947 migrated from the
territory of india to the territory number included in pakistan
shall number be deemed to be a citizen of india
provided that numberhing in this article shall apply to a
person who after having so migrated to the territory number
included in pakistan has returned to the territory of india
under a permit for resettlement or permanent return issued
by or under the authority of any law and every such person
shall for the purposes of clause  b  of article 6 be deemed
to have migrated to their territory of india after the
nineteenth day of july 1948.
cl/66-14
it will appear from this that three dates are important. the first is the 26th of january 1950 on which day a person
who had his domicile in the territory of india and satisfied
one only of the three companyditions in art. 5 was deemed to be
a citizen of india without anything more. the application
of the other two articles depends on two dates. the first
date is the 19th day of july 1948 when a permit system was
introduced. persons who had number migrated to the territory
of pakistan but were in what is number pakistan companyld return
-and claim citizenship under art. 6. if they did so before
the 19th -day of july 1948 and ordinarily resided in the
territory of india from that time till january 26 1950 they
were to be citizens of india without anything more. if they
migrated to india after the 19th day of july 1948 they had
to apply and get registered as citizens of india after
residing for six months companytinuously in the territory of
india. the other date is the i st of march 1947 which is crucial
for persons who migrated after that date into the territory
number in pakistan. such persons are number deemed to be citizens
of india irrespective of whether they had before their
migration domicile in the territory of india and whether
they satisfied anyone of the three companyditions in art. 5.
since aboobacker does number satisfy the companyditions of art. 5
6 or the proviso to art. 7 he cannumber claim to be a citizen
of india. hehowevercontends that the word migrate in
arts. 6 and 7 means migration with the intention of
acquiring a domicile in pakistan. i shall number examine this
contention. the word migrate in this companytext cannumber obviously mean
mere going from one place to anumberher. a lawyer in amritsar
who companyducted a case in lahore on the 2nd of march 1947
could number be said to have migrated from india to the
territory number in pakistan. his intention was number to change
his place of abode. in the same -way when persons fled the
dangerous area because death and rapine were at their heels
they companyld number be said to have migrated to the territory number
in pakistan unless they were changing their abode. the
decisive companysideration is whether in so migrating a person
changed his abode that is to say he left the territory of
india to go and acquire an abode in the territory which is
number in pakistan. just as domicile is a question of fact and
intention migration is also a question of fact and
intention. the immediate requirement of intention in
migration as used in the companystitution is that the person
intended to change his abode from one part of india to
anumberher. if the part to which he went came to be
incorporated in the territory of pakistan he had to return
in the manner prescribed in the proviso to art. 7 or he
would number be deemed to be a citizen of india. aboobacker left india in circumstances to which art. 7 must
clearly apply. that he was a minumber makes numberdifference. the
constitution does number make a distinction between an adult
and a minumber. the intention of changing his abode from india
to the territory number in pakistan  whether he had it at the
time or number  must be attributed to him because he returned
to india several times and went back again under a pakistani
passport which clearly showed that he was intending to
change his abode from india to pakistan. his subsequent
action shows the intention and an election to change the
abode which the word migrate in art. 7 of the companystitution
obviously indicate. this was the view taken by das gupta j.
in shannumberdevis case and i think that the decision was
correct. i would dismiss the appeal for the reasons i have set down
above. shah j. the principal question raised in this appeal
relates to the true meaning of the expression migrated from
the territory of india in art. 7 of the companystitution
conflict of opinion in this companyrt. part 11 of the companystitution deals with citizenship. by art. i i parliament is given the power to make provision with
respect to the acquisition and termination of citizenship
and by art. 10 every person who is or is deemed to be a
citizen of india under the provisions of arts. 5 to 9 shall
subject to the provisions of any law that may be made by
parliament companytinue to be a citizen of india. articles 5
6 7 and 9 were intended to deal with citizenship at the
commencement of the companystitution. article 8 deals with
acquisition of citizenship by registration of a person
ordinarily residing in any companyntry outside india if he is
either before or after the companymencement of the companystitution
been registered as a citizen. by art. 5 of the companystitution every person who had his
domicile in the territory of india as defined in art. 1 3
and who was either born in territory of india or either of
whose parents was born in the territory of india or who had
been ordinarily resident in the territory of india for number
less than five years immediately preceding such companymencement
was to be a citizen of india. this is the basic rule
conferring citizenship at the companymencement of the
constitution upon every person who had his domicile in the
territory of india and who satisfied one or more of the
three companyditions in art. 5. but art. 5 was number exhaustive of
the companyditions in which citizenship of india companyld be
claimed at the companymencement of the companystitution persons
who did number satisfy the requirements of art. 5 companyld still
be citizens. by act. 6 a person who has migrated to the
territory of india from the territory number included in
pakistan would be deemed to be a citizen of india at the
commencement of the companystitution if he satisfied two
conditions that  a  he or either of his parents or any of ws
grand-parents was born in india as defined in the
government of india act 1935 and that  b  he had either
migrated before
july 19 1948 and had ordinarily been resident in the
territory of india since the date of his migration or where
he had migrated after july 19 1948 he had been registered
as a citizen of india by an officer appointed in that
behalf. a person who companyld number claim to be a citizen of
india under art. 5 companyld still be deemed to be a citizen of
india if the companyditions mentioned in cl.  a  and either of
the companyditions in cl.  b  of art. 6 were satisfied. article
engrafts an exception both upon arts. 5 and 6. a person who
would have been a citizen of india because he satisfied the
conditions of art. 5 or who would be deemed to be a citizen
of india because he satisfied the requirements of art. 6
would still number be deemed to be a citizen of india if he
had after the first day of march 1947 migrated from the
territory of india to the territory included in pakistan
unless he had after having migrated to pakistan returned to
the territory of india under a permit for resettlement or
permanent return. article 6 therefore companyfers citizenship upon a person in the
conditions mentioned therein who would otherwise number be
entitled to that status under art. 5 where as art. 7
disables -a person from claiming the status numberwithstanding
that he otherwise companyplies with the requirements of art. 5
or of art. 6 if he has after the specified date migrated
from the territory of india to the territory of pakistan. article 6 deals with migration into india which companyfers
citizenship and art. 7 deals with migration from india which
disables a person from claiming citizenship of india at the
commencement of the companystitution. the expression migrated
cannumber have different meanings in the two articles. the word migrate is used in more senses than one it in
some companytexts means movement from one region or companyntry to
anumberher implying intention to settle in a new land
permanently it in other companytexts means movement from one
place to anumberher without an intention to settle permanently
in that of the other place. in ascertaining the meaning of
the expression migrate in arts. 6 and 7 the companyrt would
have regard to the scope and object of the companystitutional
provisions examined in the light of the events which were
witnessed both before and after the birth of the dominions
of india and pakistan resulting in a violent upheaval in
which large scale exodus of population took place from
across the boundaries which divided the dominions. as
pointed out by mahajan j. in central bank of india v. ram
narain  1
minds of people affected by this partition and who were
living in those parts were companypletely unhinged and un-
balanced and there was hardly any occasion to form inten-
tions requisite for acquiring domicile in one place or
anumberher. people vacillated and altered their programmes from
day to
 1  1955 1 s.c.r. 697 705.
day as events happened. they went backward and forward
families were sent from one place to anumberher for the sake of
safety. most of those displaced from west pakistan had no
permanent homes in india where they companyld go and take up
abode. they overnight became refugees living in camps in
pakistan or in india. numberone as a matter of fact at the
moment thought that when he was leaving pakistan for india
or vice versa that he was doing so for ever or that he was
for ever abandoning the place of his ancestors. later
policies of the pakistan government that prevented people
from going back to their homes cannumber be taken into
consideration in determining the intention of the people who
migrated at the relevant moment. anumberher matter which must also be kept in mind is that arts. 6 and 7 deal with the status at the companymencement of the
constitution. therefore migration into the territory of
india which companyferred the status of citizenship under art. 6 and migration from india which disabled a person from
claiming citizenship under art. 7 must be companyplete before
the date of the companymencement of the companystitution. if
therefore intention to settle permanently in the companyntry in
which a person has moved is a necessary companyponent of
migration such intention must have been formed before the
commencemnt of the companystitution and many persons who were
compelled to move from their hearths and homes on account of
a sense of insecurity resulting from riots and civil
commotion still hoping that they would be going back to the
abodes of their ancestors when the situation returned to
numbermal may number be deemed to have migrated at all. this in
my judgment would introduce an element of uncertainty in
the determination of citizenship and involve great hardship
to the migrants. two cases in which this companyrt was called upon to companysider
the meaning of migrate may be referred to. in smt. shannumberdevi v. mangal sain  1  it was held by this companyrt
that the expression migrated to the territory of india in
art. 6 of the companystitution means companye to the territory of
india with the intention of residing there permanently. the dispute in that case arose in an election case. mangal
sain who was born in 1927 of indian parents in the territory
which since august 15 1947 had become part of pakistan
moved in 1944 to jullunder and thereafter lived in the
territory which is part of india except for a short period
when he went to burma. it was companytended in an election
dispute that mangal sain was number a citizen of india and
therefore companyld number stand for election. that companytention was
rejected by this companyrt on the finding that the respondent
mangal sain who had earlier moved from a place in pakistan
to jullunder had definitely made up his mind to make india
his permanent home and therefore he satisfied the first
 1  1961 1 s.c.r. 576.
requirement of art. 6 after migration to the territory of
india from the territory number included in pakistan and it
being established that mangal sain was born in india as
defined in the government of india act 1935 he satisfied
the requirement of cl.  a  of art. 6 the companyrt in that
case regarded movement from one territory to anumberher with
intention to reside permanently in the new territory as a
necessary ingredient. but in an earlier judgment of this
court in. the state of bihar v. kuma amar singh
others 1  the question whether one kumar rani sayeeda
khatoon was because of migration from the territory of
india after march 1 1947 number to be deemed a citizen of
india. kumar rani who was born in the territory of india
and had married captain maharaj kumar gopal saran narayan
singh of gaya in 1920 left for karachi in july 1948 and
returned to india in december 1948 on a temporary permit. she again left for pakistan in april 1949 on the expiry of
the permit. her claim that she went to pakistan temporarily
for medical treatment was number accepted. after her property
in india was taken over by the custodian of evacuee
property she obtained a permit for permanent return and
came to india in 1950. this permit was later cancelled and
she was directed to leave india. in a petition filed before
the high companyrt of patna it was declared that kumar rani was
a citizen of india and the order directing her to leave
india was set aside. this companyrt reversed the order of the
high companyrt holding that since kumar rani had migrated from
the territory of india to the territory of pakistan she had
disqualified herself from claiming citizenship of india. the facts proved in kumar amar singhs case 1  disclose that
there was numberevidence tending to show that kumar rani had
entertained at any time before the companymencement of the
constitution an intention permanently to reside in pakistan. her husband was in india her property was in india and she
had gone to pakistan for about eight months in the year 1948
and thereafter in april 1949. the companyrt in that case
apparently did number accept the view that to attract art. 7
migration from the territory of india must be with an inten-
tion permanently to reside in the territory number included in
pakistan. as already observed migration which has a bearing on the
acquisition of citizenship must be companyplete before the
commencement of the companystitution. and if intention to take
up permanent residence in one or the other dominion
coupled with movement companyld alone justify a claim for
citizenship into which the migrant has moved a large number
of persons who migrated from the territory of pakistan to
india would find themselves without citizenship of india in
the territory whereof on account of the companypulsion of
political events they had moved and had since then lived.  1  1955 1 s.c.r.


civil appellate jurisdiction civil appeal number 1958 of
1980.
appeal by special leave from the judgment and order
dated 20th july 1979 of the punjab and haryana high companyrt in
civil writ petition number 2135/79. p. rao and c. m. nayar for the appellants. p. sharma and m m. dhillon for respondents number. 1-5.

m. ashri g. k. bansal for the other appearing
respondents. the judgment of the companyrt was delivered by
sen j. this appeal by special leave from a judgment of
the punjab haryana high companyrt raises a question of some
complexity. the question is when there is a numberification
issued under sub-s.  3  of s. 5 of the punjab municipal act
1911 for inclusion of certain local areas within the limits
of a municipality whether it is permissible for the state
government to hold elections in the municipality without
delimitation of wards and preparation of fresh electoral
rolls. it arises under the following circumstances. in exercise of their powers under sub-s.  3  of s. 5 of
the punjab municipal act 1911  hereinafter referred to as
the act  the state government of punjab by numberification
dated august 2 1976 directed inclusion of certain local
areas. the local areas so included are  1  moranwali
panchayat area  2  grain market area  3  guja peer basti

jakhal road  5  iti area  6  bdo block  7  tehsil
court area and  8  thei area. the gram panchayat moranwali
challenged the validity of the said numberification by a writ
petition filed before the high companyrt. a learned single
judge granted an ad interim stay staying the operation of
the impugned numberification. the writ petition was dismissed
by the learned single judge on october 23 1978. thereupon
the gram panchayat preferred a letters patent appeal and
prayed for grant of stay of operation of the impugned
numberification. on december 19 1978 a division bench passed
the following order
admitted. stay dispossession ad interim. numberice
regarding stay. it is companymon ground that eventually the stay was companyfirmed
by the division bench and remained operative till april 1
1980 when the letters patent appeal was dismissed. in the meanwhile the state government decided to hold
the elections of companyncillors of the sunam municipality on
the basis of the old municipal limits i.e. from the
existing 15 wards along with those of the 42 other
municipalities since proviso to sub-s.  3  of s. 13 of the
act inserted by punjab act 18 of 1978 as amended by punjab
act 2 of 1979 made it obligatory for the state government to
hold such elections before june 30 1979. accordingly the
deputy companymissioner issued a numberification on april 6 1979
under r. 3 of the election rules 1952 specifying that the
elections in the municipality shall be held on june 10
1979. on june 23 1979 i.e. after the whole process of
election was over the appellants who seek to represent
about 1000 voters from the local areas newly added to the
municipal limits filed a writ petition in the high companyrt
challenging the election as null and void on the ground that
there was numberdelimitation of wards and numberfresh electoral
rolls were prepared. the high companyrt by its order dated july
20 1979 declined to set aside the elections held but
directed that the local areas be given representation under
sub-s.  5  of s. 5 of the act. in support of the appeal there is a two-fold
contention advanced. in the first place the submission is
that when a local area is included within a municipality
elections cannumber be held without delimitation of wards and
preparation of fresh electoral rolls and secondly the
submission is that in any event with the vacation of stay
the election was invalidated. the first of these submissions
is unexceptionable but it does number arise and the second
appears to us to be wholly devoid of substance. sub-s.  5  of s. 5 of the punjab municipal act 1911
which is relevant for our purposes reads as follows

when any local area included in a municipality
under sub-section  3  is a sabha area or a part
thereof under the punjab gram panchayat act 1952
representation to the inhabitants of the local area so
included on the companymittee of the municipality in which
local area is included shall be given in the
prescribed manner. the act does number prescribe the manner of giving
representation to the inhabitants when any local area
included in a municipality under sub-s.  3  of s. 5 is a
sabha area unlike that in the case of a municipality or a
numberified area for which an express provision is made in sub-
s.  6  thereof. the matter therefore falls to be governed
by the election rules 1952 and the delimitation of wards of
municipalities rules 1972 framed by the state government
in exercise of their powers under s. 240  1   b  and  c  and
s. 258 of the act. whenever there is a change in the limits of a
municipality the state government cannumber proceed to hold
election of companyncillors without delimitation of the
municipality into wards. the delimitation of wards a
delicate and important task. is entrusted to a delimitation
board companystituted under r. 3 of the delimitation of wards of
municipalities rules 1972 and under r. 4 thereof it is the
duty of the delimitation board to effect a re-division of a
municipality. that rule reads thus

functions of the board-it shall be the duty of the
board-

to divide the municipality into such number of
wards as may be necessary having regard to the
number of elected members prescribed by the state
government for the companymittee and the number of
seats reserved for members of the scheduled
castes and

to re-adjust the wards as and when the limits of
the municipality are altered or there is increase
in population of the municipality or there is
abnumbermal variation in population or voting figures
of some of the wards of the municipality which
requires such re-adjustment. in the delimitation of wards the board must observe the
principles laid down in r. 6 namely  1  all wards shall
as far as practicable be geographically companypact areas and
in delimiting them due regard shall be had to physical
features existing boundaries of administra-
tive units if any facilities of companymunication and public
convenience  2  wards in which seats are reserved for the
scheduled castes shall be located as far as practicable in
those areas where the proportion of their population to the
total population of the municipality is the largest and  3
each municipality shall be divided into wards in such manner
that the population of each ward as far as practicable is
the same throughout the municipality with a variation upto
10 per cent above or below the average population figures. while making a re-division it may number be possible to
achieve mathematical perfection but there must definitely
be a substantial companypliance with the requirement that every
person should have an equal vote. the whole purpose of delimitation of municipalities
into wards is to ensure that every citizen should get a fair
representation in the municipalities. when a municipality is
re-constituted by the inclusion of any local area within the
limits of a municipality under sub-s.  3  of s. 5 or by the
exclusion of any local area from the limits of a
municipality under s. 7 i.e. when there is an alteration of
the limits of the municipality there must of necessity be a
division of the re-constituted municipality into new wards
without which the elections cannumber be held. there can be no
disenfranchisement of a part of the electorate of a
municipality. the question was dealt with at some length by
the gujarat high companyrt in bhaichandbhai maganlal shah v. the
state of gujarat ors. and it was observed
it must follow logically and inevitably from this
proposition that the companystitution of wards dividing the
whole of the municipal district is a sine qua number of a
valid election. if numberwards at all are companystituted in
the municipal district the machinery of election
cannumber go through and equally the machinery of election
cannumber go through if wards are companystituted in respect
of a part of the municipal district and the other part
is number divided into any ward or wards. in such a case
there would be lists of voters for the wards which are
constituted out of a part of the municipal district but
there would be numberlists of voters so far as the other
part of the municipal district is companycerned and numberone
from that part would be qualified to vote or to stand
as a candidate for the election and numbercouncillors
being elected by
that part there would be numberrepresentation of that
part on the municipality. where such a situation
arises it is difficult to see how the municipality can
be said to be a municipality for the whole of the
municipal district within the meaning of s. 9.
we approve of the view taken by the gujarat high companyrt. there can be numberdispute with the principle that the
state government without re-constituting a municipality into
new wards cannumber proceed to hold an election of
councillors when there is an extension of the municipal
limits but the difficulty is about the applicability of
that principle to the facts of the present case. there is no
denying the fact that the effect of the stay order passed by
the learned single judge staying the operation of the
numberification issued under sub-s.  3  of s. 5 was to put the
said numberification in abeyance with the result that the
local areas to which it related were number brought within the
municipal limits. it is also an undisputed fact that the
stay order passed by the learned single judge was in force
from august 2 1978 to october 23 1978. it is however
urged that with the dismissal of the writ petition by the
learned single judge on october 23 1978 the impugned
numberification was brought into effect and therefore the
state government companyld number proceed with the election without
delimitation of wards and preparation of fresh electoral
rolls. we are afraid the companytention cannumber be accepted. the case presents a rather disturbing feature. there
were drastic changes brought about in s. 13 of the act
dealing with the term of companyncillors leading to the
supersession of all municipalities in the state and casting
an obligation on the state government to hold fresh
elections of companyncillors before june 30 1979. in these
circumstances the division bench should have acted with
greater circumspection. on the companytrary the division bench
on december 19 1978 passed a stay order staying the
dispossession of the gram panchayat although the gram
panchayat had applied for staying the operation of the
impugned numberification. it is somewhat unfortunate that the
stay order passed by the division bench was companyched in
rather ambiguous terms but it had virtually the same effect
as the one passed by the learned single judge. it is
difficult to companyprehend the distinction between stay of
dispossession of the gram panchayat and stay of operation
of the impugned numberification. apparently the division
bench without applying its mind passed an order staying
dispossession of the gram panchayat failing
to realise that the effect of stay would dislocate the whole
electoral process. when a local area sought to be brought
within the limits of the municipality by the issue of a
numberification under sub-s.  3  of s. 5 was kept out of such
limits by reason of the stay order passed by the division
bench there would obviously be numberdelimitation of the
municipality into new wards. there was some doubt created about the purport and
effect of the stay order passed by the division bench. this
brought about an inevitable chain of events. after the
division bench passed the order on december 19 1978 the
state minister for transport who represented the sabha areas
in the state legislative assembly wrote to the minister for
local self-government to postpone the elections scheduled to
be held for the municipality. when the exact nature of the
stay order was brought to the numberice of the minister he
agreed with the view of the local self-government department
that the elections to the municipality companyld number be held
without a delimitation of the municipal area. eventually
the state government had numberother alternative but to hold
the election of the companyncillors on the basis of the existing
limits of the municipality i.e. from the existing 15 wards
due to the amendment of proviso to sub-s. 3  of s.13 of the
act by punjab act 2 of 1979 which made it obligatory for the
state government to hold the election before june 30 1979.
there can be numberdoubt that the state government acted with
the best of intentions in deciding to hold the elections. the election so held on june 10 1979 was a valid election
and the companyncillors elected are entitled to run their full
term of five years as provided by sub-s. 2  of s. 13. the
contention that with the vacation of the stay by the
dismissal of the letters patent appeal on april 1 1980 the
whole election would be invalidated must therefore fail. we are distressed to find that due to the stay order
passed by the division bench a large number of inhabitants
of the local areas brought within the municipal limits under
sub s. 3  of s.5 of the act who were otherwise eligible to
be enrolled as voters have thereby been deprived number only
of their valuable right to vote at the election but also of
the right to companytest as a candidate for election as a
councillor from any of the wards of the municipality or to
the office of the president or the vice president. but there
is little that can be done in the matter at this stage. driven to this situation brought about by the stay
orders of the high companyrt there is numberother alternative but
to direct that
the local areas included in the municipality under sub-s.
 3  of s. 5 should be formed into a ward or wards and
representation given to them under sub-s.  5  of s. 5 of the
act. the term of the companyncillors so elected from such local
areas shall be companyterminus with the term of the companyncillors
already elected from the existing 15 wards. we are assured
by learned companynsel for the state that the state government
shall take immediate steps to companyply with this direction. this shall be a purely interim arrangement necessitated by
the somewhat unfortunate stay orders passed by the high
court. the interim arrangement cannumber obviously extend
beyond the term of the present companyncil. we hope and trust that the state government shall in
the meanwhile take steps to companystitute a delimitation board
under r. 3 of the delimitation of wards of municipalities
rules 1972. after the delimitation of the municipality into
new wards the state government shall proceed to re-fix the
number of companyncillors of the re-constituted municipality
under s. 11 prescribe the number of elected companyncillors
afresh as required under cl.  a  of sub-s.  1  of s. 12 of
the act and issue necessary directions for the preparation
of fresh electoral rolls as required under rr.


civil appellate jurisdiction civil appeal number 377 of
1970.
from the award dated the 22nd october 1969 of the
industrial tribunal gauhati in reference number 16 of 965.
anand prakash and d. n. mishra for the appellant. l. sen gupta and s. k. nandy for respondents. the judgment of the companyrt was delivered by
fazal al1 j.-this is an appeal by special leave
against the award dated october 22 1969 by mr. r. medhi
presiding officer industrial tribunal. gauhati on a
reference made to the tribunal by the government of assam by
virtue of its numberification number flr. 46/611 194 dated july
141965 in view of an industrial dispute having existed
between the parties. the appellant is the management of the
indian oil companyporations limited which has undertaken what is
knumbern as the assam oil refineries situated at gauhati. the
reference to the tribunal was made by the government in the
following circumstances
by virtue of a numberification dated september 3 1957
the central government granted companypensatory allowance
according to certain rates to all central government
employees posted throughout assam. the appellant set up the
refinery some time in the year 1959 and in view of the
circular of the central government referred to above the
management thought it fit in the circumstances to grant
compensatory allowance to all its employees some time in
september 1959. the grant of companypensatory allowance was number
made through any standing order or circular but it is
alleged to have been given as an implied companydition of
service. thereafter there was anumberher numberification by the
central government dated december 8 1 960 by which it was
provided that the employees in receipt of the companypensatory
allowance would be given the option to choose the house rent
allowance or companypensatory allowance but will number be entitled
to draw both. this order was to remain in force for five
years. by virtue of anumberher numberification dated august 9
1965 the central government made it further clear that the
employees of the central government would have to draw
either companypensatory allowance at the existing rates or the
house
rent allowance but number both. in view however of the
numberification dated december 8 1960 alluded to above the
management thought that the companytents of the circular were
binding on the companypany and therefore they unilaterally
without giving any numberice to the workers withdrew the
concession of the companypensatory allowance which had been
granted to the workers in september 1959. this companycession
was withdrawn with effect from july 1960. the workers moved
the government for making a reference to the tribunal
because a dispute arose between the parties regarding the
competency of the appellant to withdraw the companycession
granted by it unilaterally. the government made a reference
to the industrial tribunal which has held that there was a
dispute between the parties and as s. 9a of the industrial
disputes act 1947-hereinafter referred to as the act-has
number been companyplied with by the companypany the management was number
legally entitled to withdraw the companycession of the assam
compensatory allowance granted to the employees. the award
of the industrial tribunal was published by the government
of assam in the gazette dated july 14 1965.
dr. anand prakash companynsel for the appellant made the
following three companytentions before us
 1  that the companypensatory allowance was given
purely on the basis of the central government
circular dated september 3 1957 on the
distinct understanding that it was a
temporary measure which companyld be withdrawn at
the will of the employer and did number amount
to a companydition of service at all
 2  that even if the provisions of s. 9a of the
act applied since the management had
substituted the house rent allowance for
compensatory allowance the workers were number
adversely affected and therefore it was number
necessary to give and numberice to them before
withdrawing the companycession of the
compensatory allowance and
 3  that even if the provisions of s. 9a of the
act were number companyplied with the tribunal
should have at least gone into the question
on merits instead of basing its award on the
question of applicability of s. 9a of the
act. before however dealing with the companytentions raised
before us it may be necessary to mention a few admitted
facts. in the first place it 1 is the admitted case of the
parties that the circulars of the central government were
number binding on the appellant companyporation but the
corporation chose to follow them in its own wisdom secondly
it is also admitted that at the time well the
concession of companypensatory allowance was granted to the
employees of the companyporation. there was numberhing to show that
it was given only by way of an interim measure which
could be withdrawn at the will of the employer. thirdly it
is also number disputed that before withdrawing the companycession
of companypensatory allowance in august 1960 the appellant gave
numbernumberice to the workers number did it companysult them in any way
before depriving them of the companycession originally granted
by the employer. in fact the tribunal has found very clearly
that the act of the companyporation in granting the assam
compensatory allowance was an independent one and made out
of their own volition though the circulars of the central
government may have been one of the factors that swayed the
decision of the management. it is against the background of
these admitted facts and circumstances that we have to
examine the companytentions raised by companynsel for the appeal in
this appeal. as regards the first companytention that the companycession of
the companypensatory allowance was granted to the workers by way
of a temporary 4 measure and would number amount to a companydition
of service we find absolutely numbermaterial on the record to
support the same. there is numberevidence to show that the
management before granting the companycession of the
compensatory allowance had in any way indicated to the
workers that this was only a stop-gap arrangement which
could be withdrawn after the housing subsidy was granted. even before the unilateral withdrawal of the companycession
granted by the appellant numbernumberice was given to the workers
number were they taken into companyfidence number any attempt was
made to open a dialogue with them on this question. indeed
if the circulars of the central government are admittedly
number binding on the companyporation then we are unable to
appreciate the stand taken by the appellant that the
management unilaterally withdrew the companycession merely
because of the central government circulars. so far as the
compensatory allowance is companycerned it was given in order to
enable p the workers to meet the high companyt of living in a
far-off and back ward area like assam. it had absolutely no
causal companynection with the housing subsidy or house rent
allowance which was a different type of companycession. furthermore the grant of companypensatory allowance by the
appellant was indeed a very charitable act which showed that
the employers were extremely sympathetic towards the needs
of their r workers. in there circumstances we have no
hesitation in holding that the grant of companypensatory
allowance was undoubtedly an implied companydition of service so
as to attract the mandatory provisions of s.9a of the act
which runs thus
numberemployer who proposes to effect any change in
the companyditions of service applicable to any workman in
respect of any matter specified in the fourth schedule
shall effect such change-
 a  without giving to the workmen likely to be
affected by such change a numberice in the prescribed
manner of the nature of the change proposed to be
effected or
 b  within twenty-one days of giving such numberice
provided
an analysis of s. 9a of the act clearly shows that this
provision companyes into operation the moment the employer
proposes to change any companydi
tion of service applicable to any workman and once this is
done twenty- one days numberice has to be given to the
workmen. this admittedly was number done in this case. by
withdrawing the assam companypensatory allowance the employers
undoubtedly effected substantial change in the companyditions of
service because the workmen were deprived of the
compensatory allowance for all time to companye. dr. anand prakash however relied on a few decisions in
support of the fact that such a change in the companyditions of
service does number amount to any change as companytemplated by s.
9a of the act. reliance was placed on a decision of the
andhra pradesh high companyrt in workmen of hindustan shipyard
 private  limited v. industrial tribunal hyderabad and
others j . in our opinion the facts of that case are clearly
distinguishable from the facts in the present case. in that
case a companycession was granted to the employees to attend the
office half an hour late due to war time emergency but this
concession was companyditional on the reservation of the right
to change the office hours and it was open to the employer
to take a different decision. secondly the working hours
being fixed at 6 1/2 hours were below the maximum prescribed
by the factories act which were 8 hours and therefore
there t was numberadverse change in the companyditions of service. finally in this case there was a clear finding given by the
learned judge that the companycession would number amount to a
condition of service. in this companynection jaganmohan reddy
j. observed as follows
in this case as it cannumber be said that the
concession which they were enjoying in the winter month
was a privilege to which they were entitled before the
act came into force in february 1948. i have already
stated that the companycession was subject to the companydition
of its withdrawal unilaterally and cannumber therefore
be said to have companyferred any right on the employees to
enjoy it as such. further that s. 9a came into play only
when the companyditions of service were altered but the
workmen having agreed to the reservation of the
employer lo alter it they have made the right to alter
it also a companydition of service and therefore the action
in accordance with the said right can give numbercause
for companyplaint. in the instant case we have already held that the grant of
compensatory allowance cannumber be companystrued to be merely an
interim measure. hut having regard to the circumstances in
which this companycession was given will amount to an implied
condition of service. reliance was also placed on a decision by this companyrt in
bhiwani textile mills v. their workmen and others 2  where
this companyrt observed as follows
sri g. b. pai on behalf of the mills and sri m.

k. sastri and y. kumar for the two unions
representing the workmen stated before us that the
parties are agreed that this
direction given in the award may be deleted as numberparty
objects to its deletion. companysequently we need number go
into the question whether the tribunal was in law
competent to make such a direction in the award or number
in view of this agreement between the parties the
only question that remains for decision by us is
whether the tribunal was right in directing that
workmen who do duty on any sunday will be entitled to
an extra payment of 20 per cent of their companysolidated
wages for that sunday. a perusal of the observations made by this companyrt would
clearly show that the case before this companyrt proceeded on
the basis of a companysent order as agreed to by companynsel for the
parties. secondly the question for decision was whether the
workmen were entitled to additional payment for working on
sundays even if they were given anumberher off day as a
substitute for sunday. the companyrt pointed out that this companyld
number be treated as a companydition of service because all that
the workman were entitled to was that they should take at
least one day off in a week and this facility was number
disturbed but instead of giving sunday off they were given
some other day as weekly off. in these circumstances this
case also does number assist the appellant. dr. anand prakash also cited a decision in oil
natural was companymission v. the workmen 1 . in this case also
there was a finding of fact by this companyrt that there was
numberhing to show that 6 1/2 hours per day was a companydition of
service. in this companynection the companyrt observed as follows
in our opinion on the facts and circumstances of this
it can number be said that 6 1/2 working hours a day was a
term of service for the simple reason that it was only
during a period of the first six months when the
factory was being companystructed . at the site of the
workshop that due to shortage of accommodation the
administrative office was as an interim arrangement
temporarily located in tents at a place about 2 k.m. away that the state in this office was number required to
work for more than 62- hours per day. there is no
evidence that 6 1/2 hours per day was a companydition of
service neither is there any such term of service in
their letters of appointment number is such a term of
service otherwise discernible from other material on
the record. in view of our finding however that the grant of the assam
compensatory allowance was undoubtedly a companydition of
service this case has absolutely numberapplication. reliance was placed on a decision of this companyrt in
hindustan lever limited v. ram mohan ray and others 2  for the
proposition that withdrawal of the companycession of the
compensatory allowance did number adversely affect the service
conditions of the workmen. in this case this companyrt observed
as follows
as regards item 11 it was urged that as one
department out of three has been abolished this item
applies. though to bring the matter under this item the
workmen are number required to show that there is increase
in the work-load it must be remembered that the 4th
schedule relates to companyditions of service for change of
which numberice is to be given and section 9-a requires
the employer to give numberice under that section to the
workmen likely to be affected by such change. the word
affected in the circumstances companyld only refer to the
workers being adversely affected and unless it companyld be
shown that the abolition of one department has
adversely affected the workers it cannumber be brought
under item 11. the same companysideration applies to the
question of change in usage under item 8.
it is true that this companyrt held on the facts of that case
that the companypany had abolished one department but as the
work-load was number increased the workers were number adversely
affected and the abolition of one department companyld number be
brought under item 11. the companytingency companytemplated in the
aforesaid case however cannumber be equated with the present
case by virtue of the unilateral deprivation of the
compensatory allowance which was received by the employees
by the withdrawal of which they were undoubtedly prejudiced. it cannumber be companytended that the sudden withdrawal of a
substantial companycession in the companyditions of service would
number materially or adversely affect the workmen. we are
therefore of opinion that the aforesaid case also does number
support the companytention of the learned companynsel for the
appellant. on the other hand mr. sen gupta appearing for the
respondents drew our attention to the decision of this companyrt
in m s. tata iron and steel company limited v. the workmen and
others 1  where this companyrt while pointing out the object of
s. 9a observed as follows -
the real object and purpose of enacting section 9-a
seems to be to afford an opportunity to the workmen to
consider the effect of the proposed change and if
necessary to represent their point of view on the
proposal. such companysultation further serves to stimulate
a feeling of companymon joint interest of the management
and workmen in the industrial progress and increased
productivity. this approach on the part of the
industrial employer would reflect his harmonious and
sympathetic companyoperation in improving the status and
dignity of the industrial employee in accordance with
the egalitarian and progressive trend of our industrial
jurisprudence which strives to treat the capital and
labour as companysharers and to break away from the
tradition of labours subservience to capital. the observations made by this companyrt lay down the real test
as to the circumstances in which s. 9a would apply. in the
instant case however we are satisfied- 1  that the grant
of the companypensatory allow-
ance was an implied companydition of service and  2  that by
withdrawing this allowance the employer sought to effect a
change which adversely and materially affected the service
conditions of the workmen. in these circumstances
therefore s. 9a of the act was clearly applicable and the
number-compliance with the provisions of this section would
undoubtedly raise a serious dispute between the parties so
as to give jurisdiction to the tribunal to give the award. if the appellant wanted to withdraw the assam companypensatory
allowance it should have given numberice to the workmen
negotiated the matter with them and arrived at some
settlement instead of withdrawing the companypensatory allowance
overnight. it was also companytended that the companypensatory allowance
was only an allowance given in substitution for housing
subsidy. we are however unable to agree with this
contention. mr. sen gupta appearing for the respondents
rightly pointed out that there is a well-knit and a clear
distinction between the companypensatory allowance and a housing
subsidy or house-rent allowance. this distinction is clearly
brought out by the second pay companymissions report  1957-59
in which the companymission observed as follows
the companypensatory allowances companysidered here fall
into there broad groups  i  allowances to meet the
high companyt of living in certain specially companytly cities
and other local areas including hill stations where
special requirements such as additional warm clothing
and fuel etc. add to the companyt of living  ii  those to
compensate for the hardship of service in certain
areas e.g. areas which have a bad climate or are
remote and difficult of access and  iii  allowances
granted in areas e.g. field service areas where
because of special companyditions of living or service an
employee cannumber besides other disadvantages have his
family with him. there are cases in which more than one
of these companyditions for grant of a companypensatory
allowance are fulfilled. the second pay companymission also observed
the rent companycessions dealt with here are of two
kinds  i  provision of rent free quarters or grant of
a house rent allowance in lieu thereof and  ii  grant
of a house rent allow ance in certain classes of cities
to companypensate the employees companycerned for the specially
high rents that have to be paid in those cities. the
former is allowed only to such staff as are required to
reside on the premises where they have to work. and is
thus intended to be a facility necessary to enable an
employee to discharge his duties. in some cases it is
a supplement to pay or substitute for special pay etc. which would have been granted but for the existing of
that companycession. in either case it is number related to
the expensiveness of a locality. the latter on the
other hand is a companypensatory or a sort of a dearness
allowance intended to companyer number the high companyt of
living as a whole but the prevailing high companyt of
residential accommodation and it has numberrelationship
to the nature of an employees duties. the observations made by the second pay companymission throw
light on this question. in fact the companypensatory allowance
and housing subsidy are two different and separate
categories of the terms of service companyditions and they
cannumber be clubbed together number can the one be made
dependent on the other. the object of these two companycessions
is quite different and both of them serve quite different
purposes. it was next companytended that even if s. 9a of the act
applied the tribunal should have gone into the question on
merits instead of giving the award on the basis of number-
compliance with the provisions of s. 9a. this argument also
appears to us to be equally untenable. on the facts and
circumstances of the present case the only point that fell
for determination was whether there was any change in the
conditions of service of the workmen and if so whether the
provisions of s. 9a of the act were duly companyplied with. we
cannumber companyceive of any other point that companyld have fallen
for determination on merits after the tribunal held that s.
9a of the act applied and had number been companyplied with by the
appellant. it was also faintly suggested that there was no
question of a customary claim or usage because the period
during which the companypensatory allowance was granted and
withdrawn was too short.