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Bhawalkhan Zelanikhan Vs. B.C. Shah - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberMisc. Petn. No. 510 of 1958
Judge
Reported in(1959)61BOMLR993
ActsForeigners Act, 1946 - Sections 3 and 3(2)
AppellantBhawalkhan Zelanikhan
RespondentB.C. Shah
Appellant AdvocateBuch and ;A.A. Rizivi, Advs.
Respondent AdvocateKantawala, Adv.
Excerpt:
foreigners order, 1948, clause 11(2) - foreigners act (xxxi of 1946), section 3 -- whether under clause 11(2) of order civil authority has jurisdiction to order foreigner to report to police every day -- connotation of word 'movements' in clause 11 (2).;under sub-clause (2) of clause 11 of the foreigners order, 1948, the civil authority is empowered to give directions to a foreigner to report to the inspector of police, registration of foreigners branch, at his office at a specified time every day.;general conditions as to activities or a particular condition with reference to any activity of a foreigner can be validly imposed under clause 11 of the foreigners order, 1948. - .....confer power on the executive authority to prescribe and specifiy conditions for continuance of a foreigner in india. exteremly wide kind of or unlimited restrictions and prohibitions and rgulations can be validly prescribed and specified. the legislature intended to give widest possible powers to the government for obvious reasons. a foreigner is not entitled to any guarantees or fundamental rights as a citizen is estitled to under the constitution. a foreigner can be dangerous to security of india. his presence may be undersirable for security of india. his presence may be underable for any reason of any kind and it appears to have been intended by the legislature to leave the whoe matter of the foreigner's presence in india to the executive discretion of the government. the.....
Judgment:

(1) This is a petition under Art. 226 of the Constitution challenging the validity of an order dated November 1st, 1958 made by the respondent in pursnance of Clause 11 of the Foreigners Order, 1948. The relevant facts are as follows:

(2) The petitioner is a foreigner and is a national fo Afghanistan. By an order dated June 3rd, 1957 made by the Dy. Secretary to the Government of India in exedrcise o the powers conferred by the sub-section (2) of section 3 of the Foreigners Act it was directed that the petitioenr shall not remain in India and that he shall depart from India by landroute and thereafter shall not re-enter India. According to the respondent the petitioner has been involved in six criminal cases a list whereof is enclosed as Ex. 1 to the affidavit in reply. The petitoner has never denied the binding character of the order of deportation dated June 3rd, 1957. The Government however has not been able to deport the petitioner from out of India because the petitioner has to go to Afghanistan by land-route and at the date of the order there was no visa available to enable the petitioner to be sent through Pakistan. At present steps are being taken by the Government for renewing petitioner's pass-port for his return to Afghanistan. It appears that int he

meanwhile, having regard tot he opinion which the respondent had formed regarding the petitoner on his having been involved in criminal cases mentioned in Ex. 1 the order in questionw as made on November 1st, 1958. The relevant past of the order dated November 1st 1958 runs as order:

'You are hereby ordered under the powers vested in me under Para 11 of the foreigners Order. 1948:

(a) To report to the Inspector of Police, Registration of Foreigners Branch, Special Branch, II C. I. D., at his office at 3 p. m. every day.

(b) Not a change your address withour permission in writing previously obtained from the Deputy Commissioner of Police. x x x

(c) Not to leave the limits of Greater Bombay without permission in writing. x x x

(3) The petitoner has argued this petition before me by contending that under Clause 11 of the Foreigners Order referred to in the impugned order, there is no power of any kind in the respondent to give directions as contained in clause (1) in the order, viz, to report to the Inspector of Police, Registration of Foreigners Branch, Special Branch, II C. I. D., at his offce at 3 p. m. every day. The petitioner has contended that as there is no such power contained in Clause 11 of the Foreigners Order,. this par of the order is without jurisdiction and there should be a writ aof mandamus directing the respondent to forbear from enforcing that order.

(4) In connection with the arguments advanced on behalf of the petitioner and the respondent, it is relevant to orefder to certain provisions of the Foreigners Act and the Foreigners Order. The relevant provisions in the Foreigners Act are as follows:

'3. Power to make orders: (1) The Central Government may by orer make provision, either generally or with respect to all foreigners or with respect to any particula foreinger or any prescribed class or description of foreigner, for prohibiting, regulating or resticting the entry of foreigners into Ibndia or theri departure therefrom or their prescence or continued presence therein.

(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner.

(a) shal not enter India or shall enter India only at such times and by such route x x x

(b) shall not depart from India, or shall depart only at such times and by such route x x x

(c) shall not remain in India or in any prescribed area therein.

(cc) x x x x

(d) shall remove himself to, and remain in, such are: in India as may be prescribed.

(e) shall comply with such conditions as may be prescribed or specified-

(i) requiring him to reside in aparticula place;

(ii) imposing any restrictions on his movement.

(iii) to (viii) x x x x

(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;

(f) shall enter into a bond with or without sureities for the due observance of, or as an alternative to the enofrcement of, any or all prescribed or specified restriction or conditions:

and make provisions for anymatter which is tobe or may br 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 this Act.'

(5) Now, efore referring to the Foreigners Order enacted in exercise fo the powers contained in S. 3 of the Act it is relevant to point out that from S. 3 above the object of the Act appears to be a to provide for prescribing, regulating and restricting amongs other things the preence and contained presence of a foreigners in India. What appears to have been intended it to confer power on the executive authority to prescribe and specifiy conditions for continuance of a foreigner in India. Exteremly wide kind of or unlimited restrictions and prohibitions and rgulations can be validly prescribed and specified. The Legislature intended to give widest possible powers to the Government for obvious reasons. A foreigner is not entitled to any guarantees or fundamental rights as a citizen is estitled to under the Constitution. A foreigner can be dangerous to security of India. His presence may be undersirable for security of India. His presence may be underable for any reason of any kind and it appears to have been intended by the Legislature to leave the whoe matter of the foreigner's presence in India to the executive discretion of the Government. The provisions as contained in S. 3 make this object of the Act abundantly clea. The last wors in the sub-section (2) of section 3 of the Act show the wide character of the powers intended to be conferred on the Government. The power is given to make provision for any mater which is to be or may be prescribed and for such incidental and supplementary matters which may be deemed expedient or neceassary by the Government for giveing effect to the Act. I have accordingly no doubt that under the several items mentioned in sub-section (2) of section 3 there is power vested in the Central Government including the power to direct a foreigner in connection with his residence in India to report every day to the police authority as mentioned in clause (a) of the impugned order...... It is not as if there is no jurisdiction under the Act to make such an order. Even if I come to the conclusion that there was under Clause 11 of the Foreigners Order referred to in the impunged order no power in the respondent to direct the petitioner to report every day to the police authority I would be justified in holding that such power was intended to be conferred on the Central Government that if not under Clause 11 such power was otherwise also vested and I should not, having regard to the antecedents of the petitioner be justified in giving him the relief which he wants by way of writ.

(6) The relevant part of Clause 11 of the Foreigners Order runs as under:

'11. Powers to impose restrictions on movements etc: The civil authority may, by order in writing direct that any foreigner shall comply with such conditions as may be specified in the order in respect of:

(1) his place of residence.

(2) his movements.

(3) x x x x

(4) x x x x'

(7) Mr. Buch has contended that I must give effect to the marginal note and/or heading in this clause and also to the word 'movements' as 'restrictions' has been used in the marginal note in the same sense as the same has been used in the Act in S. 3(2)(e)(ii). He says that the word 'restrictions' imports directions of a negative character and not of a positive character such as to report to the police authorities as contained in the impugned order. Mr. Kantawala for the respondent has contended that the provisions of Clause 11 are clear, and that I should not at all look to the mariginal note or the heading of that clause for the meaning of the word 'movements' as used in sub-clause (2) of Clause 11. He ;Dictionary the meaning of the word 'movements' (mentioned as in the 2nd column of page 728 of Vol. 6 in the Murray's English Dictionary) under sub-heading (d) wher it is stated as follows: 'Chiefly pl: Actions, activities, doings of a person or body of persons'. He has contended that having regard to this meanging of the word 'movements' and having regard to the object of the Act as already mentioned by me above the true meaning of Clause 11(2) of the Foreigners Order is that the civil authorities can place any conditions on 'actions, activities or doings' of a foreigner. He has contended that the reporting to the police authority is directly a condition on the actions or activities or doings of the petitioner and therefore the respondent had jurisdiction to make the impugned order.

(8) In my view it is important to bear in mind that the word used is plural, viz., 'movements' and not 'movements'. The conditions whenever they relate to movements, i.e., activities of a foreigner, may be specified in an order made under Clause 11(2). The condition to report to the Inspector of Police relates to the activity of the petitioner. It is not something foreign to the activity of the petitioner. I do not accept the contention of Mr. Buch that a condition relating to movements must be with reference to the movement of a foreigner from one place to another. The general condition as to the activities or a particular condition with reference to any activity of a foreigner would be justifiable under the provisions of Clause 11. I must admit that I have come to this construction with certain hesitation. But having regard to the general scheme of the Act and the object as aforesaid of the Act, I must give widest possible meaning to the Clause 11 in the Foreigners Order and hold that the same is intended to empower the civil authorities to take action of the kind contained in that impugned order. Iat is for this reason that I have given general meaning to the word 'movements' and come to the conclusion that the respondent had jurisdiction to make the impugned order and was justified in imposing the condition as contained in clause (a) of the impugned order. I do not agree that the contitions imposed must be negative and cannot be of positive kind.

(9) Having regard to my aforesaid finding, the petitioner is not entitiled to any relief. The petition is dismissed with costs. Rule discharged.

(10) Petition dismissed.


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