LexREV. MONS. SEBASTIAO FRANCISCO XAVIER DOS REMEDIOS MONTEIRO versus STATE OF GOA
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ii c D E F G H REV. MONS. SEBASTIAO FRANCISCO XAVIER DOS REMEDIOS MONTEIRO v. STATE OF GOA March 26, 1969 [M. HmAYATULLAH, C.I., S. M. SIKRI, R. S. BACHAWAT, G. K. MITTER AND K. S. HEGDE, JI.] Geneva Conventiolt.$ A.ct Fourdi Schedule, Arts. 6, 47, 49-'0ccupc- tion' under A.rt. 47 whether continues after aniiexation and subjugation- Tr•t annexation distlnguilhed from premature annexation-A.rt. 47 refer1 to premature annexation only-Goa annexed by India after swift military action-Benefit of Arts. 41 and 49 whether available ro Portugwse nationals in Goa-Court'a power to give remedy. Tbe Geneva Convention1 Act 6 df 1960 was passed by the Indi .. Parliament to enable effect to be given to the International ConventiOll8 done at Geneva in 1949. India and Portugal have both signed and ratifi- ed th"' C.Onventions. The four Conventions were adopted in as many Scliedules to the Act. The Fourth Convention was meant to apply to all cases of partial or total occupation of the territory of the contractini parties and gave protection to perS0118 who found themselves in, case of a conllict or occupation in the hands of a Party to the confiict or Occupy- ing Power of which they were not nationals. In the CQf< of occupied t<rritory the Convention applies under Art. 6 for a period df one year after the general close of Military operations, but during the period of occupation the Occupying Power i• bound by certain Articles includiDJ. inter a/ia, Arts. 1-12, 47 and 49. By Art. 47 protected persons m occupied territory can not be deprived of the benefits of the Convention despite any change introduced as a result of the occupation or even annexation of whole or part of the territory by the Occupying Power. Art. -49 forbids the deportation of protected persons 'from the occupied terri- 10ry. There is no definition of the ierm 'occupied' in the Geneva Conven- tions but the Hague Regulations to which the Conventions are madtt supplementary defined a territory as occupied when it finds itself 'in fact placed under the authority of a hostile Army'. · The territory of Goa wu • Portuguese colony for about 450 years, having been seized by force of arms. On December 19, 1961 Goa was. eccupied by Indian Armed Forces following a short military action. It then came under Indian Administration from December 20, 1961 and was aovemed under the Goa, Daman and Diu (Administration) Ordinance 1962 promulgated by the President of India. 'The Ordinance was replaced on March 27, · 1962 by A.ct I of 1962. The same day the Constitution (Twelfth Amendment) A.ct 1962 WM enacted and wu deem- ed to have come into force on December 20,, 1961. By this amend- ment Goa was included in the Union Territories and a reference to Goa wa.> inserted in· Art. 240 of tho Conatitution. Indian laws including the Citizenship Act of 1955. the Foreigners Act 1946 and the Registration of Foreignen Act 1939 were ox:tended to Goa. The Central Government also promulgated under•. 7 of the Citizenship A.ct, 1955, the Goa, Deman and Diu (Citizenship) Order 1962. The second paragraph of the order conferred Indian Citizenship on certain classes of pers0118 in these terri- IOries, giving an option to those desirous df retaining their previous cidmi- ship or nationality of another country to make a declaration to that effect witbi• one month or the Order. 88 SUPREME COUil! REPORTS (1970] I S.C.R. The appellant who was a resident of Goa made punuanl to the above Order his declaration c;f Portuguese nationality. He was allowed to stay in India under a temporary residential permit till November 13, 1964. Aft« that date he did not ask for a renewal of the permit. Tho Lt, Governor of Goa empowered under Art. 239 of the Constitution ordered him to leave India. For disobeying the order he was prosecuted uuder s. I4 read with s. 3(2)(c) elf the Foreisners Acl. Betng convicted he appeal- ed unsuccessfully to the Court of Session. His revision ~tition being rejected by the Judicial Commissioner, he appealed by special leave to tlm Court. The contention on behalf of the appellant were based on the Geneva Conventions which it w"' said had become a part of the law of India under Act 6 of 1960. It was urged that after the United Nations Charter the acquisition of territory in International Law by torce of arms could not coofor title. The amendment of tho Constitution only legalised the annexation so far as India was concern
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