1. The Petitioner Mahamrnad Meah has filed this application to quash the orders of the 2nd Respondent, the District Magistrate of Tripura, Annexures A and F dated 19-9-1958 and 24-12-1953 respectively directing him to leave India with his family.
2. Annexure A is a notice dated 19-9-1958 in which the Petitioner was stated to be a Pakistani national and a foreigner as defined in the Foreigners Act, 1946 and he was directed to leave India within a period of one month from the date of service. The Petitioner submitted a petition to the District Magistrate Annexure B stating that he was not a foreigner, that he was born in Agartala, 16 years previously and that his father was a permanent resident of Agartala and died 15 years previously.
Thereupon the District Magistrate directed Sri K. P. Datta, first class Magistrate to hold an enquiry. The said Magistrate held an enquiry and came to the conclusion that there was no documentary evidence in support of the Petitioner's claim that he was an Indian citizen, that the oral evidence which he adduced was not reliable and that he cannot, therefore hold that the Petitioner was an Indian citizen by birth, parentage or prolonged residence.
The Said report was accepted by the District Magistrate and by his notice Annexure F dated 24-12-1958 he stated that the Petitioner was a foreigner and living in India without any valid document and he was directed to leave India with his entire family forthwith. Thereupon the Petitioner issued a notice to the District Magistrate stating that he was filing a Writ application in this Court to quash the orders and he can't forward with this application. The 1st Respondent is the Secretary to the Political Department and the 2nd Respondent is the District Magistrate, Tripura.
3. Though notices of this application were served on the Respondents in August, 1959, no counter-statement was filed and the matter was posted for hearing on 23-G-1960. On that dale, request was made for the Respondents for one month's time to enable them to file a written statement, but it was strongly opposed by the Petitioner. I granted time for 15 days.
Then a written statement was filed by the Respondents which is father interesting. The Respondents therein denied the Petitioner was a citizen of India, but they admitted that there was some irregularity in the notice served upon the Petitioner under the Foreigners Act and, they requested that the Writ petition may be allowed exclusively on, the finding that the notice was not regular.
4. The Petitioner's contention in the application was that the District Magistrate of Tripura had no authority under the Foreigners Act, 1946 to serve a notice of deportation on. the Petitioner and that the entire proceedings as disclosed by Annexures A to F were without any jurisdiction and hence should be quashed. One would expect the Respondents to answer this plea of want of jurisdiction specifically in their reply statement and not state merely that the notice served on the Petitioner was somewhat irregular. If it was a case of more irregularity in drawing up the notice or in the subsequent proceedings and not a case of total want of jurisdiction, this Court will not quash the orders under Section 226 of the Constitution.
5. Section 3 of the Foreigners Act, 1946 showed that the power to make orders under the Act prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein vested with the Central Government. Sub-section (2) of Section 3 provided that the Central Government may make provisions for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may. in the opinion of the Central Government, be expedient or necessary for giving effect to the Act.
Sub-section (3) provided that any authority prescribed in that behalf may with respect to any particular foreigner make, Orders under Clause (e) or Clause (f) of Sub-section (2). It may however be mentioned that Clause (e) and Clause (f) of Sub-section (2) do not provide for the deportation of a foreigner but only for calling upon a foreigner to comply with such conditions as may be prescribed or specified and to enter into a bond for observance of such conditions. Section 12 of the Act gave the Power to delegate authority to make or give any direction, consent or permission or to do any other act under the Act.
6. It is clear from the sections dealt with above that the District Magistrate of Tripura had no power under the said sections, unless there was a delegation of anthority under Section 3(3) and Section 12 to deport a foreigner or to issue a notice to such person under the Foreigners Act. What one would expect the Respondents to state in their counter-statement is whether any such authority has been delegated to the District Magistrate. I need not decide in this application whether under the sections dealt with above the authority to deport a foreigner could at all be delegated to the District Magistrate.
That question would come in only if such authority is produced. In view of the clear statement of the Petitioner that the District Magistrate had no such authority conferred on him under the Foreigners Act, the Respondents ought to have stated in their counter-statement whether the District Magistrate, in fact, had been conferred any such delegated authority and not simply say that there has been some irregularity in the issue of the notice.
7. To my query as to whether the District Magistrate had such authority conferred on him under the Act, the learned Government Advocate frankly admitted that on the dates when the notice Ext. A and the final order Amnexure F were issued, the District Magistrate had no such authority, but that the authority has been delegated subsequently. The actual order giving the authority was not produced before me. But, the reason why the Respondents were fighting shy of filing a counter-statement to this application became obvious.
8. The statement in the counter that there has been some irregularity in the issue of the notice is an understatement, as it is not a case of mere irregularity but of total lack of jurisdiction for the District Magistrate to issue such a notice of deportation. There is no doubt therefore that the orders Annexures A and F issued by the District Magistrate are entirely without jurisdiction and have to be quashed.
9. The Government Advocate requested that I need not express any opinion as to whether the Petitioner was an Indian citizen or not. It is not at all necessary for me to express any opinion on that matter, as the question does not arise in view of the fact that the entire proceedings evidenced by Annexures A to F are void for want of jurisdiction.
10. The Writ petition is, therefore, allowed and the orders Annexures A and F are quashed. The second Respondent will pay the costs of this petition to the Petitioner. Advocate's fee Rs 100/-.