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Abdul Aleem Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1058 of 1959
Judge
Reported inAIR1963AP441; 1963CriLJ497
ActsForeigners Act, 1946 - Sections 2 and 3(2)
AppellantAbdul Aleem
RespondentThe State of Andhra Pradesh
Appellant AdvocateD.S. Krishna, Adv.
Respondent Advocate3rd Government Pleader
DispositionWrit petition dismissed
Excerpt:
.....- writ petition filed for challenging validity of such order - on date of order petitioner was foreigner - date of entry into india not significant - no barrier for passing order - held, order passed against respondent is valid. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of building from applicability of provisions of act held, (per majority) section 32(c) of the act provides that the provisions of the act shall not apply to any building the rent of which as on the date of the commencement of the a.p. buildings ( lease, rent and eviction) control (amendment) act 2005..........india in 1954 he did come with (sic) the definition of a 'foreigner' would stand in the way of the state government making an order under section 3(2)(c) of the foreigners act. it is to be remembered that the order now challenged in the writ petition was passed two years after the amendment of the act, i. e., it was passed on 22-9-1959. the definition of 'foreigner' as amended is wide enough to cover every person who is not a citizen of india. indisputably, the petitioner is not a citizen of india, as declared by the central government under section 9(2). that being so, there can be little doubt that he is governed by section 3(2)(c) of the foreigners act. what is essential for the applicability of section 3(2)(c) is that he should be a 'foreigner' on the date the order under that.....
Judgment:

P. Chandra Reddy, C.J.

1. The validity of an order passed under Section 3(2)(c) of the Foreigners Act, (XXXI of 1946) as amended in 1957 is impugned before us.

2. The petitioner migrated to Pakistan in January, 1952, and was employed as a Boiler attendant in one of the Jute Mills in Karachi (Pakistan) and also obtained a Boilers' Certificate from the Chief Inspector of Karachi. He came to India, in August, 1954, on a Pakistani Passport and obtained a temporary visa from the Government of India. It is not necessary for us to trace the circumstances under which he continued to remain in India without even obtaining extensions of the visa obtained by him from the Government of India. Suffice it to say that it was discovered recently that he remained in India without the necessary visa. A reference was then made to the Government of India under Section 9(2) of the Citizenship Act 1955, and the Government of India, after holding an enquiry and after affording adequate opportunity to the petitioner decided that he was not a citizen of India. Subsequently, the impugned order was made by the Government of Andhra Pradesh on 22-9-1959 expelling the petitioner from India. It is to remove this order on certiorari that the present petition is died.

3. The chief contention of Sri Krishna, learned counsel for the petitioner, is that notwithstanding the decision of the Central Government under Section 9(2)) of the Citizenship Act, no re-Port could be had to Section 3(2)(c) of the Foreigners Act for the reason that at the time the petitioner entered India he was not a foreigner within the contemplation of the Foreigners Act. The learned counsel urges that the definition of foreigners under the Foreigners Act as it stood prior to the amendment did not include a person who was born in the territory of India notwithstanding the fact that he subsequently migrated to Pakistan.

4. It is convenient at this stage to look at the definition of foreigner as contained in the Foreigners Act, 1946, prior to the amendment in 1957, i.e., in 1954 when the petitioner entered India. It is in these terms:

'Foreigner' means a person who

(1) is not a natural-born British subject as defined in Sub-sections (1) and (2) of Section 1 of the British Nationality and Status of Aliens Act, 1914, or

(2) has not been granted a certificate of naturalisation as a British subject under any law for the time being in force in British India, or

(3) is not a citizen of India.

5. The argument founded upon this definition is that the petitioner being a natural-born British subject as contemplated by Sub-section (1), he could not be regarded as a 'foreigner' within the scope of Section 3(2)(c) of the Foreigners Act. But we are not concerned with the Foreigners Act as it was in force in 1954. The definition was amended in 1957 by Act 11 of 1957. Under the amended definition, 'foreigner' means a 'person who is not a citizen of India'.

6. Now, the point for adjudication is whether the circumstance that at the time of the petitioner's entry into India in 1954 he did come with (sic) the definition of a 'foreigner' would stand in the way of the State Government making an order under Section 3(2)(c) of the Foreigners Act. It is to be remembered that the order now challenged in the writ petition was passed two years after the amendment of the Act, i. e., it was passed on 22-9-1959. The definition of 'foreigner' as amended is wide enough to cover every person who is not a citizen of India. Indisputably, the petitioner is not a citizen of India, as declared by the Central Government under Section 9(2). That being so, there can be little doubt that he is governed by Section 3(2)(c) of the Foreigners Act. What is essential for the applicability of Section 3(2)(c) is that he should be a 'foreigner' on the date the order under that section is made. The date of his entry into India is irrelevant for the consideration of the question arising under Section 3(2)(c). Therefore, the fact that at the time the petitioner came to India he could not be described as a 'foreigner' by virtue of the definition as contained in Section 2 as it prevailed at that time is not an obstacle in the way of the State Government passing orders under Section 3(2)(c). Consequently, the order sought to be quashed cannot fee assailed on the ground that in 1954 the petitioner could not be described as a 'foreigner' within the mischief of the Foreigners Act.

7. There is a long line of authority in support of this view. It was ruled by a Division Bench of the Madras High Court in Mahomed Usman v. State of Madras, : AIR1961Mad129 that for the purpose of enabling the Government to pass an order under Section 3 of the Foreigners Act it was not the status of the individual when he entered India that should be taken into account but his status on the date when the order was passed or direction issued. This is also the principle enunciated in State v. Ashfaq Ahmed : AIR1961All115 ; State v. Ibrahim Nabiji, : AIR1959Bom525 : Afzar Ali v. State, : AIR1961Ori174 and Abdul Jalil v. State, 1962 (1) Cri LJ 13 (Assam). Our attention was not drawn to any ruling which has struck a different note. In cur opinion, the doctrine of these cases is in accord with the spirit and letter of Section 3(2)(c) of the Foreigners Act. On the language of the section, it is difficult to take any other view. In the circumstances, the petitioner cannot successfully challenge the direction issued by the State of Andhra Pradesh for his leaving India.

8. For these reasons the writ petition is dismissed. There will be no order as to costs. Advocate fee Rs. 100/- (one hundred).


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