Skip to content


A.H. Magermans Vs. S.K. Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 1 of 1963
Judge
Reported inAIR1966Cal552,70CWN82
ActsConstitution of India - Articles 5, 14, 53, 77(2), 166(1), 166(2), 245, 258 and 258(1); ;Registration of Foreigners Rules, 1939 - Rules 3, 7(3) and 13(1); ;Foreigners Act, 1946 - Section 3(2); ;Foreigners Order, 1948; ;Evidence Act, 1872 - Section 114; ;Indian Passport Rules, 1950
AppellantA.H. Magermans
RespondentS.K. Ghose and ors.
Advocates:Party in person;Subrata Roy Choudhury, Adv.;Advocate General, ;Junior Standing Counsel and ;S. Bose, Adv.
DispositionAppeal dismissed
Cases ReferredUnion of India v. Ghaus Mohammed
Excerpt:
- b.c. mitra, j.1. the appellant, a belgian national, came to india on november 23, 1947, as a roman catholic missionary and discharged his duties as such, at ranchi and calcutta. in february, 1952, he gave up his missionary activities and commenced a secular life and held serveral posts in commercial organisations. the department of registration or foreigners was informed in writing by the jesuit mission in calcutta, that the appellant had ceased to be a christian missionary and had given up his missionary activities. the appellant came to india on a belgian passport with a visa for his visit to india given by the visa section of the british embassy at brussels. the period of the appellant's stay in india, on the visa issued as aforesaid having expired, he applied for extension, but this.....
Judgment:

B.C. Mitra, J.

1. The appellant, a Belgian national, came to India on November 23, 1947, as a Roman Catholic Missionary and discharged his duties as such, at Ranchi and Calcutta. In February, 1952, he gave up his missionary activities and commenced a secular life and held serveral posts in commercial organisations. The Department of Registration or Foreigners was informed in writing by the Jesuit Mission in Calcutta, that the appellant had ceased to be a Christian Missionary and had given up his missionary activities. The appellant came to India on a Belgian passport with a visa for his visit to India given by the Visa Section of the British Embassy at Brussels. The period of the appellant's stay in India, on the visa issued as aforesaid having expired, he applied for extension, but this was not granted. Proceedings were started against him under Section 14 of the Foreigners Act, 1946, before the Additional Chief Presidency Magistrate, Calcutta. On September 22, 1956, the appellant was served with an order directing him not to remain in India after September 25, 1956. On September 22, 1956, the appellant was informed that the said proceedings before the Additional Chief Presidency Magistrate had been withdrawn, Theretafter the appellant moved a petition under Article 226 of the Constitution and obtained a rule nisi, in Matter No. 198 of 1956, which however was discharged. Thereafter the appellant left India sometime in April, 1957.

2. Before leaving India, the appellant obtained an appointment as Manager and Director-in-charge of Leonard Biermans, a company incorporated in Belgium and carrying on business as manufacturers of playing cards in West Bengal and having its principal place of business in Calcutta. This company requested the Government of India to allow the appellant to remain in India, and on such request the latter agreed to permit the appellant to come to India on a written undertaking given by him that he would not prolong his stay in India beyond one year. Accordingly a visa was issued to the appellant who arrived in India for the second time on or about May 16, 1958. But on expiry of the period of one year, the appellant instead of leaving India in terms of his undertaking, applied for extension of his stay in India, and during the pendency of this application for extension, the said company discharged the appellant from its service. The appellant thereafter was employed by several other commercial undertakings in Calcutta and while serving such employees, he obtained several short extensions of his stay in India. Ultimately however, the appellant was served with an order dated January 13, 1960, directing him to leave India within thirty days of the date of service of the order. On March 4, 1960, the appellant was granted an extension of the period of his stay in India from June 3, 1960, to August 2, 1960, and a further extension was granted till September 2, 1960. The appellant was served with another order dated September 7, 1960, directing him not to remain in India beyond a period of 15 days from the date of service of the said order, which was September 10, 1960, The appellant failed to comply with the order to leave India, and thereupon he was arrested on November 18, 1960, and was taken to the local police station, where his application for bail was rejected. He was produced before the Chief Presidency Magistrate Calcutta, who enlarged him on a bail of Rs. 1000 on November 19, 1960. The appellant thereafter served a notice of demand on the respondent No. 1 calling upon him to withdraw the said order dated September 7, 1960, directing him to quit India. Prosecution under the Foreigners Act was again started against the appellant for violation of the order greeting him to quit India. On November 23, 1060, the appellant moved this Court under Article 226 of the Constitution and obtained a rule nisi which was discharged by Banerjee J., by bis judgment and order dated November 20, 1962. This appeal is directed against this order November 20, 1962.

3. Before proceeding any further I should mention that the appellant argued his case in person although he had a solicitor on record in this appeal. He applied for permission to argue in person as he was unable to engage a counsel owing to financial difficulties. This permission was granted to him by us.

4. In support of this appeal the appellant formulated the following propositions:

(a) Section 3(2)(c) of the Foreigners Act, 1946, (Act No. XXXI of 1946) is ultra vires the Constitution as there is delegation of legislative power without laying down any policy or guiding principles on which such power is to be exercised by the Government of India. It also offends Article 245 and Article 14 of the Constitution.

(b) Assuming that Section 3(2)(c) of the Foreigners Act is a valid piece of legislation, then firstly, the order made against the appellant is bad as it is legislative in nature and as such it should have been signed by the Governor and not by an executive officer.

(c) The order made against the appellant is bad because the person whose signature appears on the order has not disclosed his authority, though this was challenged.

(d) The order is bad as it was not made by the Government of West Bengal, but by the Central Government.

(e) The decision directing the appellant to leave India was made in exercise of quasi judicial power and there has been violation of the principles of natural justice in making the order.

(f) The Notification issued by the Central Government under Article 258 of the Constitution empowering the State Government to exercise the powers under the Foreigners Act is ultra vires for the following reasons:

(i) The Notification is not signed by the President, but by some other officer.

(ii) Powers that can be entrusted to the State Government under Article 258 are executive powers, but the powers delegated by the Notification are legislative powers.

(iii) Condition (a) of the Notification cancels the entrustment made to the State Government.

(g) The reasons mentioned in the affidavit-in-opposition by the respondent for making the order are unconstitutional as they violate Articles 21 and 25 of the Constitution.

(h) The appellant has an Indian domicile and for this he has various rights which the order cannot override.

(i) The certificate of registration of the appellant has conferred upon him a right of residence in India which could not be taken away without cancelling the certificate ot registration.

(5) Before proceeding to elaborate the propositions formulated by him the appellant contended that the statute, namely, the Foreigners Act, 1946, was a penal statute, it created an offence, and Imposed a penalty, by way of fine or imprisonment for violation of the provision thereof. He argued that the statute should therefore, be strictly construed in his favour. In support of this contention he relied upon a decision of the Supreme Court in W.H. King v. Republic of India, : 1952CriLJ836 . This decision, however, is of no assistance to the appellant in this appeal because we are not concerned in this appeal with the prosecution of the appellant under the Foreigners Act and the question of validity of his prosecution under the said Act was not the subject matter of his petition under Article 226 of the Constitution, out of which this appeal arises.

6. In elaborating his first proposition mentioned above, the appellant contended that there was unlimited and unfettered delegation of legislative power to the Central Government by Sections 3 and 3A of the Foreigners Act, 1946. It was argued that the Act had not laid down any policy or principle on which the Central Government was to exercise the delegated legislative power, and because of such unfettered delegation, Section 3 of the Act with its sub-Sections and Clauses must be struck down. The appellant referred to the preamble to the Act, and submitted that it was quite clear that the Act conferred on the Central Government certain powers, in respect of the entry of foreigners into India, their presence in India and their departure from India. But the powers conferred on the Central Government by Section 3 of the Act with regard to foreigners, it was argued, had no nexus with the object of the Act as mentioned in the preamble. The appellant referred to Clause (c) of Sub-section (2) of Section 3 of the Act and contended that this Clause conferred upon the Central Government the power to direct a foreigner not to remain in India or in any prescribed area therein. This, it was argued, was beyond the scope of the Act as indicated in the preamble.

7. In support of this contention the apgellant firstly relied upon a decision of the upreme Court in Nagpur Electric Light and Power Co. Ltd. v. K. Shreepathirao, : (1958)IILLJ9SC . In that case the Supreme Court considered the effect of failure by an employer to frame standing orders under Section 30 of the C.P. and Berar Industrial Disputes Act with regard to certain employees. Certain standing orders, however, were framed by the employers, but it was contended that these orders did not apply to the respondent. The breach of the statutory obligation to frame standing orders involved a criminal liability and it was held by the Supreme Court that the standing orders which had been framed should be so construed to make them consistent with the obligation to comply with the statutory duty. This decision again has no application whatsoever to the appellant's contention.

8. The appellant next relied upon a decision of Supreme Court in Rajnarain Singh v. Chairman Patna Administration Committee, : [1955]1SCR290 . The observations of the Supreme Court relied upon by the appellant were to the effect that an executive authority could be authorised to modify either existing or future laws, but not in any essential feature so as to include a change of policy. This decision also is of no assistance to the appellant, because in our view there is no question involved in this appeal of modifying the existing law with which we are concerned in this appeal, namely, Foreigners Act, 1946. The order made by the State Government directing the appellant to leave India has not the effect of, nor was it intended to modify the Act under which the order was made.

9. The appellant next relied upon another decision of the Supreme Court in Harisankar Bagla v. State of Madhya Pradesh, : 1954CriLJ1322 . In that case the Supreme Court considered the validity of a statutory order, namely, the Cotton Textiles (Control of Movement) Order, 1948. This Order was promulgated by the Central Government under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946. It was argued that Sections 3 and 4 of the Act were ultra vires the legislature on the ground of excessive delegation of legislative power. It was held that Section 3 of the Cotton Textiles (Control of Movement) Order was intended to regulate the transport of cotton textiles so as to make it available at fair price to all. The grant or refusal of a permit was to be governed by this policy and the discretion of the Textile Commissioner was to be exercised in such a way as to effectuate this policy. The conferment of the discretion to the Textile Commissioner, to grant or withhold a permit, could not be called unregulated or arbitrary and was not invalid on the ground. It was further held that the legislature could not delegate its functions of laying down legislative policy to the executive, but must declare the policy of legislation and the legal principles which were to control any given cases and must provide a standard to guide the officials or the authority in power, to execute the law. It was further held that the essential legislative function consisted in the determination or choice of legislative policy. This decision is entirely against the contentions of the appellant. There is sufficient indication in the preamble of the Foreigners Act, 1946, of the legislative policy underlying the enactment and the principles which are to control the executive authority in exercise of the powers conferred by the Act. The policy of the enactment is to regulate the entry of foreigners into India, their presence in this country and also their departure from this country and that being so, there is no substance at all in the appellant's contention that the statute has conferred upon the executive authority unregulated or arbitrary powers and therefore such a statute is invalid.

10. Reliance was also placed on another decision of the Supreme Court in Edward Mills Co. Ltd. v. State of Ajmer, : (1954)IILLJ686SC , in support of the same proposition, namely, that a legislature could not abdicate its legislative functions and vest the same in an extraneous authority and that there might be delegation as a subsidiary or ancillary measure. The legislative policy with regard to the entry, stay and departure of foreigners from this country has been sufficiently indicated both in the preamble and in Section 3 and Section 3A of the Foreigners Act, 1946. The policy having been indicated, and the principles on which the power to make orders regarding foreigners having been laid down, it cannot be said that there has been ex-cessive delegatton of legislative functions to the executive authority or that the statute has conferred upon the executive authority unregulated and arbitrary powers to make orders relating to foreigners. Merely because a discretion has been vested in the executive authority in the exercise of the powers conferred upon it by the Act, it is not open to the appellant to contend that the Act as a whole or particular Sections thereof by which powers have been conferred, is or are invalid.

11. On the same question reliance was placed on another decision of the Supreme Court in Hamdard Dawakhana v. Union of India, : 1960CriLJ671 . In that case the validity of an enactment, namely, the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, was challenged on the ground of violation of various Articles in Fart III of the Constitution. The Supreme Court in dealing witb the distinction between conditional legislation and delegated legislation, held that it was the duty of the legislature to lay down broad principles of its policy in the legislation, and it could then leave the details to be supplied by the administrative authority. In delegated legislation the delegate completes the legislation by supplying the details within the limits prescribed by the statute, and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally, leaving to the discretion of an external authority the time and man ner of carrying its legislation into effect, as also the determination of the area in which such is to be effective. This decision also does not assist the appellant, because the Foreigners Act does not in any manner delegate a legislative power to the executive authority. As I have said earlier, the purpose and the object of the Act has been made quite plain in the preamble and also in the various Sections of the enactment. The policy is clearly indicated. It cannot, therefore, be held that there has been any delegation of legislative power by the Foreigners Act in contravention of the principles enunciated above.

12. The next case relied upon by the ap-pellant is also a decision of the Supreme Court in Kishan Chand Arora v. Commissioner of Police, Calcutta, 0043/1960 : [1961]3SCR135 . In that case the question considered by the Supreme Court was the validity of Section 39 of the Calcutta Police Act, having regard to Article 19(1)(g) of the Constitution. The question of the fundamental right of a citizen to carry on a business is not involved in this appeal, the appellant is not a citizen of India nor is any question involved of his fundamental right to carry on business. Section 39 of the Act conferred upon the Commissioner of Police, Calcutta, a discretion in the matter of grant of licence for eating houses and the question was whether such discretion conferred upon the Commissioner was an absolutely unguided discretion and became an unreasonable restriction on the fundamental right of a citizen to carry on the trade of keeping an eating house. This decision has no application at all to the appeal now before us and I, therefore, need say nothing more about it.

13. Reliance was also placed on another decision of the Supreme Court in Bangalore Woollen & Cotton Silk Mills Co. Ltd. v. Corporation of City of Bangalore, : [1961]3SCR698 . In that case the question considered by the Supreme Court was whether there was excessive delegation of legislative power to a municipality, by empowering it to levy Octroi duty on certain goods which were specified by the enactment itself. The rate of duty to be levied was specified. The statute conferred upon the municipality a discretion to determine on what other goods, and under what conditions, the tax was to be levied. It was held that there was no excessive delegation of legislative power to the executive authority. In my opinion, this decision also does not support the appellant's contention in this appeal.

14. Reliance was also placed on another decision of the Supreme Court in Bhatnagars and Co. Ltd. v. Union of India, : 1983ECR1607D(SC) . In that case it was held that where the legislature provided the principles underlying the provisions of a particular statute and also a guidance for the implementation of the principles, it was open to the legislature to leave the actual implementation or enforcement to its chosen delegate. This decision is entirely against the contentions of the appellant. The Act with which we are concerned quite clearly indicates the principles and the purpose for which the enactment has been made, and it has left to the executive authority the discretion as to the manner and the method in which the powers conferred by the Act are to be exercised. Applying the test laid down by the Supreme Court it cannot be said that there has been excessive or unwarranted delegation of legislative authority.

15. The appellant also referred to the decision of the Supreme Court in Dwarka Prasad Laxminarain v. State of U.P., : [1954]1SCR803 . In that case, the question was whether the Uttar Pradesh Coal Control Order, 1953, violated the fundamental rights guaranteed by Article 14 and Article 19(1) (f) and (g) of the Constitution. The question of the fundamental right to carry on a business is not involved in this appeal now before us and I do not see how this decision has any application to the issues involved in this appeal. The observations of the Supreme Court made in that decision were entirely in connection with the fundamental right of a citizen to carry on business as guaranteed by Article 19 of the Constitution and these observations do not in any way uphold the contention of the appellant.

16. On the question of excessive delegation the appellant also referred to four other decisions of the Supreme Court in Makhan Singh v. State of Punjab, : 1964CriLJ217 , State of Madhya Pradesh v Champalal, : [1964]6SCR35 , Moh-medalli v. Union of India, : (1963)ILLJ536SC and Ramkrishna Dalmia v Justice Tendolkar, AIB 1958 SC 538. These decisions do not in any way support the appellant's contention that there has been excessive delegation under the Foreigners Act. The Supreme Court has repeatedly held that if the legislature had clearly indicated the underlying principle and policy of legislation, and had laid down the criteria and proper standards, but had left the application of those principles and standards in the hands of the executive, it cannot be said that there was excessive delegation of powers by the legislature. But if on the other hand, the provisions in the statute, including the preamble, left the Court guessing as to the principles and standards, then the delegate should be treated as having been entrusted, not with the mere function of applying the law to individual cases, but with a substantial portion of legislative power itself. In the appeal now before us the legislature has indicated both in the preamble and in Section 3 and the Subsections thereunder and in Section 3A, the principle and the policy of the legislation. The standards and the criteria on which the power is to be exercised have been clearly defined. The Court is not kept guessing either with regard to the object or with regard to the policy of the legislation. What has been left with the executive, is not any determination with regard to policy or principle, but the application of the principles to individual cases. That being so, it cannot be held that there has been excessive delegation of powers under the Foreigners Act, 1946. in favour of the executive.

17. Mr. Subrata Roy Chowdhury, learned counsel for the respondent No. 5, contended that the several decisions of the Supreme Court discussed above, and relied upon by the appellant, did not support his contention that Section 3(2)(c) of the Foreigners Act, 1946, should be struck down on the ground of excessive delegation of power. He argued that legislative policy had been clearly indicated in the preamble and tbe various Sections of the statute. The legislature had, Mr. Roy Chowdhury submitted, discharged its essential legislative function in determining the legislative policy, which in this case was to regulate the entry into, the presence in and the departure from India of foreigners. Further, it was argued, that Section 3 of the said Act and the Sub-sections and Clauses thereunder conferred upon the Central Government the power to make orders regarding all foreigners or regarding any particular foreigner or a class of foreigners, There was, therefore, no lack of guidance in the statute in the matter of exercise of the power conferred by it. This contention of Mr. Roy Chowdhury is well founded. The principles on which an enactment, or any provision therein, should be struck down on the ground of excessive delegation are now well settled. So long as the legislature indicates the policy underlying the enactment and provides a guidance for the implementation of the policy of the enactment, the discretion in the matter of implementation of the enactment by enforcing the provisions of the Act, in particular cases can be validly left with the executive. For these reasons the appellant's contention that Section 3(2)(c) of the Foreigners Act, 1946, should be struck down on the ground of excessive delegation of power, must be rejected.

18. Banerjee, J., was entirely right in holding that the delegation of power to the executive under the Act, was not excessive. All the guidance that is necessary for the executive authority in making orders for the purpose of giving effect to the Act is to be found in the statute itself. As to when the executive authority should act in exercise of the powers under the statute, and in respect of which individuals, must be left to the discretion of the executive authority.

19. The next point argued by the appellant was that assuming that the Foreigners Act, 1946, is a valid piece of legislation, the order dated September 7, 1960, directing the appellant not to remain in India after the expiry of 15 days from the date of service of the order, is bad as it violates Article 14 of the Constitution. It was argued that the said order was legislative order, and as such no classification having been indicated in the order, the order must be struck down. It was further argued that the appellant was treated by the order as a class by himself and no reasonable basis having been indicated in the order for treating him differently from other foreigners, there was denial of equal protection of law as provided In Article 14 of the Constitution. The substance of the contention was that the said order was a piece of legislation, the appellant was treated as a class by himself and there being no indication in the order for a reasonable classification of the appellant such a class legislation without a reasonable classification was bad and the order must, therefore be struck down.

20. In support of his contention that the order has the force of law and therefore must be regarded as a legislative order, the appellant relied upon a decision of the Supreme Court in Jayantilal Amratlal v. F.N. Hana, : [1964]5SCR294 . The passage relied upon by the appellant is at pages 665-666 of the report, in which the question of orders having the force of law has been discussed by the Supreme Court and it was held at page 666 of the report as follows:

'The expression 'force of law' must be distinguished from 'the authority of law'. Many orders issued by Government have the authority of law behind them but all of them cannot invariably be said to have the force of law, for in order that they may have the force of law they must satisfy the basic concept of law, i.e., they must contain a rule or body of rules regulating the course of conduct of a person or persons living in that community enforceable through courts or other machinery provided therefor. Thus if an order is issued under the authority of law but it does not prescribe a course of conduct regulating the action of a person or persons living in the community it cannot be law, for such an order would necessarily require enforcement by courts or other machinery, for no question of its breach requiring enforcement arises as it prescribes no course of conduct for the community to obey. Such an order may have the authority of law behind it and in a State governed by the rule or law it will usually be so. But 'the authority of law' as we have said already must be distinguished from 'the force of law and every order that has the authority of law behind it would not be one having the force of law, unless it complies with the basic concept of law as mentioned above. It has however been urged that an order having 'the authority of law', would be enforced by courts and therefore it may be said to have the force of law. There is in our opinion a misconception in this argument. An order having 'the authority of law' behind it may be recognised by courts but unless it pres cribes a rule of conduct which a person or per sons living in the community must obey there is no question of its being enforced by a Court of law or other authority. The recognition of an order having the authority of law by courts or other authorities is in our opinion different from its enforcement by courts or other authorities, and it is only when the order can be enforced by courts or other authorities that it can be said to have the force of law.'

21. These observations are entirely against the contention of the appellant that the said order has the force of law. The order no doubt has been made under the authority of law and is an order which this Court would recognise as an order made by the executive authority, in exercise of its powers under the Act. The violation of the order may have penal consequences so far as the appellant is concerned. But this by itself does not make the order an order having the force of law.

22. The learned Advocate-General appearing for the respondents Nos. 1 to 4, contended that there was no substance in the appellant's contention that the order dated September 7. 1960, was bad on the ground that it violated Article 14 of the Constitution. He argued that this very question, namely, that Section 3(2)(c) of the Foreigners Act, 1946, was bad as it violated Article 14 of the Constitution, had been gone into by the Supreme Court in Hans Muller v. Supdt. Presidency Tail, Calcutta, : 1955CriLJ876 . In that case a West German national challenged the vires of Section 3(2)(c) of the Foreigners Act, 1946, on the ground that it offended Article 14 of the Constitution and the Supreme Court held that the said provision of the Foreigners Act was intra vires. Banerjee, J., following the said decision of the Supreme Court, rejected the appellant's contention, and we think rightly, that Section 3(2)(c) of the Foreigners Act, was ultra vires Article 14 of the Constitution.

23. In my opinion, there is no substance in the appellant's contention that the said order is legislation in the guise of an executive or administrative order, or that the order is a legislative order. The order made by the Governor in exercise of the power conferred by Section 3(2)(c) of the Foreigners Act, 1946, is an executive or administrative order. This order was made for the purpose of giving effect to the Foreigners Act, 1946. It is for the executive authority to determine if the appellant should be made to leave India and if so, when, and that is precisely what it has done by the said order. To hold that the said order is legislation in the guise of an executive order or that it is a legislative order, and should be struck down as it violates Article 14 of the Constitution, would be an unwarranted enforcement on the rights and powers of the executive authority conferred upon it by Section 3(2)(c) of the Foreigners Act, 1946. For these reasons the second contention of the appellant must fail.

24. The next contention of the appellant was regarding the Notification No. 4-3-56-(1)-F.1 dated April 19, 1952, issued by the Ministry, of Home Affairs. This Notification is to be found at page 215 of the Paper Book and it was issued under Article 258(1) of the Constitution. The object of the Notification was to entrust to various State Governments the functions of the Central Government under, inter alia, Rule 3 of the Registration of Foreigners Rules, 1939, and also the powers under Clauses (c), (cc), (d) and (f) of Subsection (2) of Section 3 of the Foreigners Act, 1946, and under the Foreigners Order, 1948. This entrustment by the Central Government was made subject to two conditions mentioned in the said Notification, namely:

(a) that in the exercise of such functions the said State Government shall comply with such general or special directions as the Central Government may from time to time issue: and

(b) that notwithstanding this entrustment, the Central Government may itself exercise any of the said functions should it deem fit to do so in any case.

25. It is the Central Government which is empowered by Sub-sections (1) and (2) of Section 3 of the Foreigners Act, 1946, to make any of the orders as provided in Clauses (a) to (f) under Sub-section (2) of the Act. It is these powers which were entrusted by the Central Government to the various State Governments by the said Notification dated April 19, 1952. The various State Governments mentioned in the said Notification derived their power to make the orders under the several statutes mentioned in the said Notification from the same.

26. It should be recalled that the order dated September 7, 1960, which was the subject matter of the writ petition out of which this appeal arises, was an order made by the State Government in exercise of the powers conferred by Clause (c) of Sub-section (2) of Section 3 of the Foreigners Act. 1946.

27. The appellant's contention was, firstly that the functions that could be delegated by the Central Government under Article 258(1) of the Constitution were executive functions and nothing else. But the functions that had been delegated regarding the Foreigners Act, 1946, by the said Notification, it was argued, were not executive functions, but such functions were legislative in nature and that being so, the entrustment made by the Central Government under the said Notification, was bad and no function or power could be exercised by the State Government under the said Notification.

28. This contention of the appellant is connected with and is based on the other contention dealt with by me earlier in this judgment, namely, that the order dated September 7, 1960, was a legislative order and not an executive order. There is a patent fallacy in this contention of the appellant. The power under Section 3 of the Foreigners Act, 1946, is a 'power to make orders'. Under Sub-section (1), the Central Government may make an order relating to any particular foreigner, or any prescribed class or description of foreigners, for prohibiting, regulating or restricting the entry of foreigners into India or their departure from or presence in India. It is to be seen if this power is legislative in nature as contended by the appellant, as it was this power which was entrusted by the Central Government to the State Government under the said Notification. There is nothing in the terms or the Section itself to indicate that the order contemplated by it is a legislative order and not an executive order. The order contemplated by Section 3 of the Act, is an order for the purpose of implementing or giving effect to the purposes of the Act as set out in the preamble thereto. The object of an order under Section 3(2) of the Act is to give effect to the Act itself. The legislature hadlaid down the policy and had issued a mandate upon the executive to make such orders as it may think fit, regarding a particular foreigner or a class of foreigners. The statute has vested the executive with a discretion as to the manner in which, the time when, and the persons with regard to whom an order should be made either regarding their entry in the country or their presence therein or their departure there-from. By no manner of means the order contemplated by Section 3(2) of the Act can be treated or regarded as anything but an executive order. Then again it cannot be overlooked that under normal conditions it is the executive power of the Union that is vested in the President under Article 53 of the Constitution. The entrustment by the said Notification has been made by the President. The President has certain legislative functions and powers, namely, the power to promulgate ordinances under Article 123 of the Constitution and also the emergency powers conferred upon him under Part XVIII of the Constitution. It is not the appellant's case that in making entrustment under the said Notification the President was, exercising his powers under Article 123 or under any of the Articles in Part XVIII of the Constitution. That being so, the only power which the President could and which in fact he did entrust to the State Government under the said Notification is the executive power of the Central Government under Section 3(2) (c), (cc), (d) and (f) of the Foreigners Act, 1946.

29. In support of the appellant's contention that the power delegated by the President was a legislative power and not an executive power he again referred to the decision of the Supreme Court in ATR 1964 SC 648 (Supra). That was a case relating to acquisition of land under the Land Acquisition Act, 1894. In that case in exercise of me powers under Article 258 of the Constitution the President issued a Notification, entrusting with the consent of the State Government of Bombay, to the Commissioners of a Division in the State of Bombay, the functions of the Central Government under the Land Acquisition Act, 1894, subject to the control of the Government of Bombay. It was contended that the power exercisable by the President, being executive in character the functions which could be entrusted to a State Government or to an officer of that State under Article 258(1) were executive functions and such executive functions not being law' within the meaning of Section 87 of the Bombay Reorganisation Act, the Commissioner of the new State of Gujrath after May 1, 1960, was incompetent to exercise the functions of Union Government, under the Land Acquisition Act. The majority view of the Supreme Court was that the Notification issued by the President conferring authority upon the Commissioners of Divisions to exercise power of the 'appropriate Government' in the matter of land acquisition has a force of law because even though issued by an executive authority, the Courts were, if challenged, bound to recognise and give effect to the authority conferred by the Notification. It was held that in so far as the effect of the Notification was that wherever the expression 'appropriate Government' occurred in the Act in relation to acquisition of land, the words 'appropriate Government or the Commissioners of the Division have territorial jurisdiction of the area in which the land is situate' were deemed to be substituted, the Land Acquisition Act must be deemed to be pro tanto amended and it would be difficult to regard such amendment as not having the force of law. Relying upon the majority view of the Supreme Court, the appellant contended that the said Notification issued by the President in this case, should be treated as an order having the force of law and was, therefore, a legislative order. But it cannot be overlooked that in the decision of the Supreme Court mentioned above, the entrustment made by the Presidential Notification had the effect of investing the Commissioners with the functions of the Central Government under the Land Acquisition Act, 1894, and the Notification was regarded as a Notification having the effect of law because to the extent of the entrustment to the Commissioners the Land Acquisition Act was amended. But the Supreme Court quite plainly indicated that although in that case, having regard to the terms and the effect of the Notification, it was held that it had the force of law, every order issued by the executive authority did not have the force of law and if the order was purely administrative, it could not have the force of law, The relevant observation of the Supreme Court is at page 659 of the report which are as follows:

'This is not to say that every order issued by an executive authority had the force of law. If the order is purely administrative, or is not issued in exercise of any statutory authority it may not have the force of law. But where a general order is issued even by an executive authority which confers powers exercisable under a statute, and which thereby in substance modifies or adds to the statute, such conferment of powers must be regarded as having the force of law.'

It was in the facts of that case that the Supreme Court held that the Presidential Notification had legislative effect as it amended in certain matters the Land Acquisition Act, 1894. There is nothing in the Notification with which we are concerned in this appeal, which can be said to have the effect of amending or modifying the Foreigners Act or to produce the same effect as in Jayantilal Amratlafs case, : [1964]5SCR294 so as to regard it as having the force of law. But although this Court is bound to recognise and give effect to the Notification and also recognise me authority conferred by the Notification, the Notification cannot be treated as anything butan administrative or executive order. For these reasons the contention of the appellant that the Presidential Notification must be regarded as a legislative order and not an executive order must he rejected.

30. It was next contended by the appellant that by reason of the conditions imposed by Clause (a) in the said Notification, the delegation itself had been nullified and no powers could be exercised by the State Government under such delegation. Clause (a) of the said Notification is as follows:

'(a) That in the exercise of such functions the said State Government shall comply with such general or special directions as the Central Government may from time to time issue.'

31. It was argued that because the Central Government had retained to itself the authority to issue any direction that it pleased, the entrustment by the Notification was bad, as the State Government who was entrusted with the functions could not claim to exercise any of them independently, and was bound to carry out any direction issued by the Central Government. Such entrustment, it was argued, could not be permitted in law. There is no substance in this contention of the appellant. Article 258(1) of the Constitution provides that the President may entrust to a State Government, functions in any matter to which the executive power of the Union extends, either conditionally or unconditionally. Therefore, the Constitution itself authorises a conditional entrustment to a State Government or the functions relating to the executive power of the Central Government. It is by virtue of this provision in the Constitution that a conditional entrustment had been made by the said Notification under Article 258(1) of the Constitution. It is entirely for the President to determine if the entrustment to be made should be conditional or unconditional, and if conditional, what are the conditions to be imposed on the State Government. Imposition of Clause (a) in the said Notification is clearly warranted by the Constitution itself and that being so, it is not open to the appellant to challenge or attack the entrustment because of the condition imposed by the Notification.

32. It was next contended by the appellant that in paragraph 17 of his petition he alleged that he was informed by A.K. Dey, Inspector Security Control, that the order had been issued by the West Bengal Government according to the instructions contained in a letter received from the Central Government. In paragraph 12 of the affidavit-in-opposition affirmed on January 19, 1961, by Ashok Dattatreya Sarnant on behalf of the respondent No. 5, the Union of India, it is stated that the Central Government instructed the Government of West Bengal to issue an order dated January 13, 1960, to the similar effect, namely, that he should leave India within 30 days from the date of service of the notice. In paragraph 13 of the affidavit-in-opposition affirmed by Ajoy Kumar Dey, on December 17, 1960, it is stated that the appellant was told that the Central Government did not desire him to be allowed to stay in India. Relying on these Statements in the affidavits, the appellant contended that it was plain that although the Central Government had entrusted the functions under Section 3(2)(c) of the Foreigners Act to the State Government, the order in fact was made by the Central Government itself and therefore, it was not an order of the State Government who alone could have exercised the functions under the Foreigners Act in terms of the entrustment. As I have already held that the entrustment of the functions by the Central Government to the State Government in regard to Section 3(2) and the Clauses thereunder, subject to the conditions mentioned in the Notification, is a valid entrustment, and is not bad because of Condition (a) in the Notification, this contention of the appellant must fail.

33. The next contention of the appellant was that under the said Notification of the Central Government dated April 19, 1952. the entrustment was made in favour of the State of West Bengal and therefore the power conferred by Section 3(2)(c) of the Foreigners Act, 1946, should have been exercised by the State of West Bengal. The order dated September 7, 1960, the appellant contended, should have been signed by the Governor, but it has been signed by S.K. Ghose, Deputy Secretary to the Government of West Bengal. The appellant contended that although he had in the grounds set out under paragraph 27 of his petition challenged the validity of the order issued by the said Deputy Secretary to the State Government, the authority of the Deputy Secretary to sign the order had not been disclosed. There is no substance in this contention of the appellant. The order dated September 7, 1960, has been expressed to be made as follows:

'By order of the Governor, S.K. Ghose, Deputy Secretary to the Government of West Bengal.' Under Article 166(1) of the Constitution all executive actions of the Governor of a State are required to be taken in the name of the Governor. The order of the Governor has been authenticated by the Deputy Secretary to the State of West Bengal and such authentication is substantial compliance with the requirement of Article 166(1) of the Constitution: vide State of Bombay v. Purushottam. : 1952CriLJ1269

34. The learned Advocate General contended that the State Government had framed Rules under Article 166(2) of the Constitution and by these Rules it had been provided that instruments and orders executed by the Governor should be authenticated amongst others, by a Deputy Secretary, and therefore, the validity of the order could not be questioned by the appellant. The Rules framed by the State Government have been published under a Notification dated February 5, 1959. This contention of the appellant, therefore must be rejected.

35. But before leaving the question of authentication I should at this stage refer to another challenge made by the appellant to the Central Government's Notification dated April 19, 1952, by which the State Government was entrusted with the powers under, inter alia, Section 3(2)(c) of the Foreigners Act, 1946. The appellant's contention was that this was not an executive or administrative order, but was a legislative order and therefore, it should have been signed by the President himself and not by Fateh Singh, Joint Secretary. I have earlier in this judgment discussed the character of this order, namely, whether it is a legislative or an executive order. The appellant had contended, however, that a Joint Secretary to the Government of India had no right to authenticate the order which was an order of the President. Mr. Sub-rata Roy Chowdhury however, repelled this contention by referring firstly to Article 77(2) of the Constitution by which orders and instruments made and executed in the name of the President is required to be authenticated in such manner as may be specified in Rules to be made by the President. Mr. Roy Choudhury submitted that Rules had been framed by the President, namely, Authentication (Orders and Other Instruments) Rules, 1958, whereby a Joint Secretary to the Government of India has been authorised to authenticate orders and instruments of the President, That being so, this contention of the appellant also must fail.

36. The appellant next referred to the decision of the Supreme Court in Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, U.P., : (1961)IILLJ419SC , and contended that the order is bad as it did not show that appellant should be made to leave India. The decision of the Supreme Court, however, does not support the appellant's contention and indeed it goes against the contentions raised by him. In that case the question of condition precedent to the exercise of certain powers was raised and it was held, that the difference between a case where the general order contains a recital on the face of it and one where it does not contain such a recital, is that in the latter case the burden is thrown on the authority making the order to satisfy the Court that conditions precedent were fulfilled, but in the former case the Court will presume the regularity of the order including the fulfilment of the conditions precedent. In the appeal now before us there is no question of conditions precedent being fulfilled before the State Government could make the order, The order having been made by the State Government in exercise of the powers entrusted to it under the said Notification, the presumption as to the regularity of the public acts would apply and the Court is entitled to presume that the order has been made by the State Government in due course.

37. The appellant also referred to another decision of the Supreme Court in State of Bombay v. Bhanji Munji, : [1955]1SCR777 . That was a case of requisition of certain premises under the Bombay Land Requisition Act, 1948, and it was held that the basis of requisition need not be set out in the order of requisition. This decision has no application to the facts of the appeal now before us.

38. The next point argued by the appellant was that the reasons furnished by the respondent No. 5 in the affidavit-in-opposition filed on its behalf and affirmed by Ashok Dattatreya Samant on January 19, 1961, are unconstitutional. He referred to sub-paragrapha (c) and (g) of paragraph 4 of the affidavit and submitted that the grounds mentioned therein and also the grounds mentioned in the affidavit-in-opposition affirmed by Ajoy Kumar Dey on December 17, 1960, did not justify the order dated September 7, 1960, and the said order violated Articles 21 and 25 or the Constitution. There is no substance in this contention of the appellant. The validity of an order made by the State Government in exercise of powers conferred under a statute cannot be questioned or challenged except on certain well-defined grounds. It is not for this Court in a writ petition to go into the question of sufficiency of the grounds (or making an executive order or into the question of motive of the State Government in making the order. Those are matters for the State Government to consider. If the order has been made in exercise of the powers conferred by a statute, and if the statute itself is a valid piece of legislation, no criticism of the order can be entertained by this Court, on the ground that there were no sufficient grounds for making the order, nor can this Court be asked to infer that the motive of making the order was contrary to law.

39. The next point argued by the appellant was that the visa in his case restricting his stay in India to 12 months is ultra vires the Indian Passport Rules. 1950. In support of this contention the appellant relied upon a decision of the' Assam High Court reported in AIR 1960 Assam 209, in which it was held, agreeing with an earlier decision of the Bombay High Court reported in : AIR1956Bom593 , that the overstay in India of a foreigner, after the period prescribed in his visa had expired, did not amount to a contravention punishable under Rule 6(a) read with Rule 3 of the Indian Passport Rules, 1950. This decision has no application to the appeal now before us. We are not concerned with the question of the validity of punishment under the Indian Passport Rules, nor are we concerned with the question if the overstay of the appellant in India after expiry of the period mentioned in his visa would attract the penal provisions of other statutes. All that this Court is concerned with in this appeal, is if the order dated September 7, 1960, has been validly made by the appropriate authority.

40. The next contention of the appellant was that the impugned order was quasi judicial in nature and in making the order there had been a violation of the principles of natural justice. It was argued that the appellant was entitled to be heard by the State Government with regard to his objections, and as he was not heard, the order was bad as it was made in violation of the principles of natural justice.

41. Before proceeding to deal with this contention I should mention that this ground has not been taken by the petitioner in the petition. But in the grounds XI of the grounds set out under paragraph 27 of the petition, it is stated that 'the impugned order is otherwise bad in law, without any legal and binding effect, offending natural justice and contrary to international law and accordingly liable to be set aside.' This point also does not appear to have been argued before the trial Court. But in ground No. 19 in the memorandum of appeal it is stated that the learned Judge should nave held that the order is bad in law without any legal authority or binding effect, offending against natural justice. Paragraph 27 of the petition under which different grounds have been set out has been verified as true to belief. If the appellant's case was that opportunity was not given to him to make representations against the proposed order, he should have set out in his petition sufficient facts to enable the respondents to deal with them. But that has not been done. On these facts the appellant ought not to be allowed to raise the question of violation of principles of natural justice at this stage. But since the point has been raised I should briefly note the appellants contentions on this question.

42. The question to be determined is whether the State of West Bengal was required to proceed judicially or quasi judicially in making the impugned order, On this question a reference may be made to the decision of the Supreme Court in the Province of Bombay v. Kushaldas S. Advani, : [1950]1SCR621 , in which two principles were enunciated, namely:

(1) If a statute empowered an authority not being a Court in the ordinary sense to decide disputes arising out of a claim made by one party which claim was opposed by another party and to determine the respective rights of the contesting parties who were opposed to each other, there was a lis and prima facie it was the duty of the authority to act judicially and

(2) if a statutory body had power to do any act which would prejudicially affect the subject, then although there were not two parties apart from the authority and the contest was between the authority proposing to make the order and the subject opposing it, the final determination of the authority would yet be a quasi judicial act provided the authority was required by the statute to act judicially.

43. It would be clear that the appellant's case would fall, if at all, under the second principle and on this principle the order can be said to be a quasi Judicial order, only if the statute required the State of West Bengal to act judicially. Neither the Foreigners Act, 1946, nor the Notification entrusting the State of West Bengal with the powers to act under the said Act, requires the State of West Bengal to proceed judicially in making the order. It was held by the Supreme Court in the decision mentioned above that if the law, under which the authority made a decision, required a judicial approach the decision would be a quasi judicial decision. There is nothing in the Foreigners Act or the Rules or the Foreigners Act which require that in making an order under Section 3(2)(c) of the Act the Central or the State Government should follow a judicial approach. Applying these tests to the facts of the case now before us it would be plain that the State Government was not exercising a quasi judicial function, nor can the order be treated as a quasi judicial order.

44. The appellant next referred to an un-reported decision of the Supreme Court in Civil Appeal No. 44 of 1964: : (1965)ILLJ433SC Associated Cement Companies Ltd. v. B.N. Sharma, and contended that having regard to the observations of the Supreme Court in that case the order should be treated as a quasi judicial order. The question before the Supreme Court In that case was if the State of the Punjab exercising its appellate jurisdiction under Rule 6(6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952, was a Tribunal within the meaning of Article 136(1) of the Constitution. The case out of which the question arose was a case of dismissal, the respondent having been dismissed by the appellant. The respondent preferred an appeal against the order of dismissal to the appellate authority under Rule 6(6) of the said Rules and the appellate authority made an order directing reinstatement of the respondent. This order of reinstatement was challenged in the appeal before the Supreme Court. It was contended that the appellate authority was not a Tribunal under Article 136(1) of the Constitution and therefore the impugned appellate order passed by it could not be challenged in appeal under the said Article. It was on these facts and on a construction of Rule 6(6) of the said Rules that the Supreme Court came to the conclusion that the State Government in exercise of its powers as the appellate authority under Rule 6(5) and Rule 6(6) of the said Rules was a Tribunal within the meaning of Article 136(1) of the Constitution. This decision is of no assistance to the appellant. The question before the Supreme Court was not whether the order made by the appellate authority was quasi judicial in nature, but whether the appellate authority was a Tribunal within the meaning of Article 136(1) of the Constitution. Secondly it cannot be overlooked that the case which the Supreme Court was considering was a case of dismissal and it is now well established that in considering question of dismissal or reinstatement the authority concerned proceeds quasi judicially and opportunity has to be given to the employee to make representations firstly, against the charges made against him and secondly against the penalty proposed to be imposed. This decision, therefore does not in any way support the appellant's contention.

45. The appellant also referred to another decision of the Supreme Court in Kharak Singh v. State of U. P., : 1963CriLJ329 , in which the Supreme Court considered the constitutional validity of certain regulations and powers conferred upon police officials by them, on the ground that these regulations violated the rights guaranteed to citizens by Articles 19(1)(d) and 21 of the Constitution. This decision is of no assistance to the appellant as admittedly he is not citizen of India and the Supreme Court considered the question of constitutional validity of the regulations having regard to the terms of Articles 19(1)(d) and 21 of the Constitution.

46. Mr. Subrata Roy Chowdhury contended that there was no substance in the appellant's contention that in making the impugned order, that State Government acted judicially or quasi-Judicially. He argued that Section 3(1) of the Foreigners Act, 1946, conferred upon the Central Government the power to make orders regarding foreigners or any class of them for prohibiting, regulating or restricting their entry into India, or their presence in or departure from India. By Sub-section (2) of Section 3 of the Act, it was argued, power had been conferred upon the Central Government to make orders providing for various matters mentioned in Clauses under Sub-section (2). The impugned order had been made in exercise of the power conferred by Clause (c) of Sub-section (2) of Section 3 of the said Act. Mr. Roy Chowdhury argued that there was nothing in the statute which required the Central Government to act judicially or quasi-judicially or to take evidence or give a hearing to the party affected. In support of this contention, Mr. Roy Chowdhury relied upon a decision of the Supreme Court in Nagendranath Bora v. Commissioner of Hills Division and Appeals, : [1958]1SCR1240 in which reference was made to a passage in Halsbury's Laws of England, Vol. II, 3rd Ed., Pp. 56-57, to the effect that if an administrative body in arriving at a decision did not have any form of lis and throughout had to consider the question from the point of view of policy and expediency, it could not be said that it was under a duty at any time to act judicially. In that case, however, on a review of the provisions of the Eastern Bengal and Assam Excise Act, 1910, and the Rules framed thereunder, the Supreme Court came to the conclusion that the orders passed could not be treated as purely administrative orders beyond the ambit of the High Court's power of supervision. But it was added that whether or not an administrative body or authority functioned as a purely administrative one or in quasi-judicial capacity, must be determined in each case on an examination of the relevant statute and Rules framed thereunder. Mr. Roy Chowdhury submitted that having regard to the provisions made in Section 3 and the Subsections and Clauses thereunder, it could not be contended that the impugned order was anything but an executive or an administrative order. He also referred to another decision of the Supreme Court in Redeshyam Khare v. State of Madhya Pradesh : [1959]1SCR1440 , in which it was held that in order to determine a question if an order made by the executive authority was a judicial order, it is to be seen if the executive authority was required to act judicially. If there was nothing in the statute which imposed upon the executive authority the duty to act judicially, or no form of procedure was laid down or even referred to, from which its duty could be inferred, the order could not be treated as a judicial or quasi-judicial order and should be treated as an administrative or executive order. In my opinion, this contention of Mr. Roy Chowdhury is well founded. There is nothing in Section 3 of the Foreigners Act, 1946, or the Sub-sections or the Clauses thereunder, to suggest that the Central Government must proceed judicially. No procedure has been laid down to be followed by the Central Government before making the order. The impugned order, therefore, cannot be regarded as anything but an executive or administrative order.

47. But even assuming that the appellant is right in his contention that the State Government acted quasi-judicially, can it be said that there had been a violation of the principle of natural Justice? It is now wall settled that the High Court in entertaining a petition for a writ or certiorari does not convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and then proceed to determine what is the proper view to be taken or the order to be made: vide G. Veerappa Pillai v. Raman & Raman Ltd. : [1952]1SCR583 nor does the High Court review or re-weigh the evidence upon which the determination of the inferior Tribunal purports to be based: vide T.C. Basappa v. T. Nagappa : [1955]1SCR250 , nor should the Court attempt to appreciate the evidence on which the Tribunal acted: vide State of Orissa v. Murlidhar Jena, AIR 1963 SC 404, and Indian Iron and Steel Co. Ltd. v. Their Workmen, AIR 1958 SC 130. The records of the appellant's case show that, there were materials on which the State Government acted, and that he had made several representations in writing. As to whether these materials are sufficient to make the order is a differ-ent question altogether. If there were no materials at all or if material evidence was not considered, this Court undoubtedly could interfere with an appropriate writ or order. But in this case the records show that representations were made by the appellant from time to time. Be-sides, there being other materials like the passport, the visa and the registration certificate and the undertaking given by him, it is plain that the State Government had taken those materials into consideration before making the order. For these reasons even if it is held that the order was quasi-judicial in nature, I cannot accept the appellant's contention, that there had been a violation of the principle of natural justice.

48. The next contention of the appellant was that the impugned order was mala fide, and had been made on the basis of certain notions formed about the appellant by the Central Government and the State Government, on untrue and incorrect materials, as would appear from the allegations against the appellant as set out in sub-paragraphs under paragraph 4 of the affidavit-in-opposition affirmed by Ashok Datta-treya Samant on January 19, 1961. The appellant argued that one of the objects or purposes of the order was that he had changed the object of his visit to India, which was missionary activities. He had given up the missionary activities and had accepted commercial employment. The other matenal relied on by the appellant in support of his contention that the order was mala fide, was that he had given an undertaking in writing that he would stay in India for only one year, and that he would not seek extension of his stay thereafter under any circumstances. Thirdly, it was argued that allegations of criminal offences committed by the appellant in Belgium and also of ex-communication by the Catholic Church, had been falsely made Fourthly, it was alleged that the appellant got himself involved in litigation with his commercial employers with a view to proiong his stay in India. The appellant argued that these allegations against him had been falsely made and an assessment of his character had been made by the Central and the Stata Government on the basis of these allegations. He argued that these allegations clearly supported his contention that there was total lack of bona fides in the order made.

49. In the petition, the appellant has nowhere made out a case of mala fides. No materials have been set out in the petition to support this contention. This contention does not appear to have been canvassed before the trial court, and it has been raised for the first time in this appeal. In the memorandum of appeal, however, the appellant had raised the contention in ground No. 18 that the order was made mala fide and with ulterior motives. A charge of mala fide involves an investigation into a question of fact, which must be pleaded. No such facts having been set out in the netition, it is not open to the appellant, to contend in this appeal mat the order was mala fide, merely because certain allegations had been made against him in the affidavits-in-opposition filed on behalf of the respondents. Furthermore a charge of mala fides requires an investigation into facts, which in this case, is seriously disputed. The writ jurisdiction of this Court is not the appropriate forum for investigation into disputed questions of fact of this description. Finally although allegations had been made against the appellant in the affidavits-in-opposition, there is nothing on the record to show that the impugned order was made because of the assessment of the appellant's character made by the respondents on those grounds. This contention of the appellant, therefore, must fail.

50. The next contention of the appellant was that he had acquired Indian domicile and this domicile carried with it the right of residence in India and such right could not be taken away from him by the impugned order. It was argued that he filed a declaration before the Inspector General of Registration, West Bengal, on January 13, 1950, which is annexure 'H' to the petition and is to be found at page 16 of the Paper Book. The appellant argued that he could have Indian domicile although he was not a citizen of India. This contention regarding domicile has been laid in paragraph 26 of the petition in which it is stated that the appellant never altered his intention to make India the country of his permanent domicile.

51. In support of this contention the appellant relied upon a decision of the Supreme Court in Central Bank of India Ltd. v. Ram Narain, : 1955CriLJ152 . This decision, however, does not support the appellant's contention that because he had acquired Indian domicile his right of residence in this country could not be terminated by the quit-order served upon him. In that case the Supreme Court considered the question of jurisdiction of the Court to entertain a criminal complaint under the Indian Penal Code with regard to a person who had been accused of an offence which was committed in a district which after the partition of India became Pakistan. The question was whether such an accused person could be tried for that offence by a criminal Court in India after his migration to India and acquisition of the status of a citizen. The whole question before the Supreme Court was a question of jurisdiction to entertain a criminal complaint committed in a territory which since the partition became Pakistan. This decision, therefore, has no application to the facts in the appeal now before us. The appellant also relied upon the decision in In Re. Marret; Chalmers v. Wing-field, (1887) 38 Ch. D. 400. The question in that case was in what circumstances a domicile of choice could be lost by a person so as to cause a revival of the domicile of origin. It was held that a domicile of origin clung to a man unless he acquired a domicile of choice by residence in another place with an intention of making it his permanent place of residence and that if a man lost his domicile of choice, his domicile of origin revived. But in order to lose the domicile of choice once acquired, the man must not only be dissatisfied with his domicile of choice, and form an intention to leave it, but he must have left with the intention of leaving it permanently. This decision does uphold (sic) any of the contentions of the appellant on the question of domicile.

It cannot be said that the appellant acquired Indian domicile of choice, because the record shows that he never intended to make this country his permanent place of residence. On the contrary at one stage, at any rate, he decided to leave India permanently. Secondly, there is no question involved in this case if the domicile of origin of the appellant revived. His claim is that he has acquired a domicile of choice which gives him the right to reside in this country. The English decision, therefore, is of no assistance to the appellant.

52. The learned Advocate General contended that there was no substance in the appellant's contention that he had acquired an Indian domicile which conferred upon him the right of residence. He referred to the appellant's application for Indian citizenship which is annexure 'G' to the affidavit-in-reply affirmed by the appellant on March 11, 1961 and is to be found at page 107 of the Paper Book- He argued that the said declaration dated January 13, 1950, was made by the appellant for the purpose of his application for acquiring Indian citizenship in fulfilment of the conditions prescribed by Article 5 of the Constitution. The learned Advocate General, however, referred to a letter written by the appellant on January 24, 1957, to the Deputy Commissioner of Police, Security Control Office, Passport Section, Calcutta, which is to be found at page 167 of the Paper Book, and by which the appellant unconditionally withdrew the application for Indian citizenship and communicated his decision to leave India for which he started making arrangements immediately. It was argued that having regard to this letter, it was no longer open to the appellant to contend that he had a right of residence on the basis of his alleged domicile. By that letter, it was argued, the appellant communicated in unmistakable and unequivocal terms his decision to leave tndia forthwith, and withdraw his application for Indian citizenship. It was further argued that the question of a person's domicile becomes relevant not only for determining the question of a citizenship, but also for determining the question of succession to immovable property under PartII the Succession Act, 1925, The mere fact at the appellant had made a declaration regarding his domicile, it was argued, could not confer upon him the right of permanent residence in India because such a declaration might equally be for determining the question of succession to immovable property. Indeed on a reference to the declaration made by the appellant on January 13, 1950, it would be clear that the declaration was made under Section 11 of the Indian Succession Act, 1865. Therefore, it was argued, the declaration of domicile was made for the purpose of succession to immovable property and not for any other purpose.

53. The learned Advocate General, further argued that in any event having regard to the withdrawal of the application for citizenship, by the appellant and his decision to leave India immediately as mentioned in the said letter, the appellant's contention that his alleged domicile conferred upon him a right of residence, must fail. This contention on behalf of the respondents is well founded. The appellant cannot claim a right of residence on the basis of his alleged domicile when he clearly communicated his intention to give up his claim to Indian citizenship and also to leave India immediately.

54. Mr. Roy Chowdhury contended that there was no substance in the appellant's contention that he had acquired an Indian domicile. There was nothing on record to show that he had given up his Belgian domicile. On the other hand the appellant claims to be a Belgian national. There is nothing on record to show, Mr. Roy Chowdhury contended, that the appellant had disposed of his properties, if any, in Belgian or that he intended to permanently take his residence in this country. On the other hand the record shows that the appellant intended at one stage to leave India immediately. In support of this contention Mr. Roy Chowdhurj referred to a decision of this Court in S. P. Ghose v. Deputy Controller, Reserve Bank of India, : AIR1964Cal422 , in which it was held that mere long residence or acquisi tion of property is not enough to establish an intention of abandoning a domicile of origin and acquiring a domicile of choice. There was no intention on the part of the appellant to abandon his Belgian domicile and to acquire an Indian domicile, This contention of Mr. Roy Chow dhury is sound.

55. The next contention of the appellant was based on the Registration of Foreigners Rules, 1939. He argued that a certificate of registration had been issued to him under Rule 6(3) of the said Rules and this certificate had not been endorsed with the word 'Tourist' as provided in Rule 7(1) of the Registration of Foreigners Rules, 1939. This cetificate of registration, it was argued, was valid so long as the appellant did not depart from India as provided in Rule 7(8) of the said Rules. As the certificate of registration was still a valid document in his possession, no order could be made directing him to leave India. The said certificate had not been cancelled and it was argued that there was provision for cancellation of the certificate under Rule 13(1) of the Rules. Not having cancelled the certificate, the authorities could not ignore me effect of the same. The issue of a registration certificate in favour of a foreigner, it was further argued, made the presence of a foreignerin India lawful and before the foreigner could be removed from India, the certificate must be cancelled. Such cancellation not having been made, no order could be served upon him directing him to leave India.

56. In support of this contention the appellant relied upon a decision of the Allahabad High Court reported in AIR 1962 All 388. In that case the applicant filed a revision petition against his conviction and sentence under Section 14 of the Foreigners Act, 1946. But that decision does not support the appellant's contention that under Rule 7(3) of the said Rules, the registration certificate confers upon a foreigner a right to remain in India. All that was held was that the purpose for which the certificate of registration was issued to a foreigner was to regulate his movements within the district in which the registration certificate was granted and also to restrict his stay within the period specified in the visa issued to him. The effect of the Foreigners Order, 1948, was also considered by the Court and it was held that paragraph 7 of the said Order was violated by a foreigner if he did not comply with the conditions mentioned in the certificate of registration and failed to depart from India within the period mentioned in the said certificate. To that extent the decision of the Allahabad High Court is entirely against the contentions of the appellant.

57. The learned Advocate General contended that the registration certificate conferred no right on a foreigner in violation of the provisions in the Foreigners Act, 1946, and the Registration of Foreigners Rules, 1939. It was argued that the Registration of Foreigners Rules, 1939, were framed under Section 3 of the Registration of the Foreigners Act, 1939, the whole object of which was to provide for the registration of foreigners entering, being present in and departing from India. It was further argued that neither the Registration of Foreigners Act, 1939, nor the Rules framed thereunder could possibly confer a right upon a foreigner to remain in India, as the object of both the Act and the Rules was to maintain a register of foreigners who were in India and also a check on their movements while in India. It was further argued that the certificate of registration was given in Form A as prescribed by the Registration of Foreigners Rules, 1939. A reference to the particulars set out in the Form A, it was argued, would make it clear that the object of the certificate was to establish the identity of the foreigner and to keep a record of his movements while in India and also particulars regarding his arrival and departure from India. There was nothing in the Form, it was argued, from which it could be contended that a certificate in Form A could confer upon a foreigner any right of residence or any other right to remain in India. It was further argued by the learned Advocate General that if it was contended by the appellant that the Rules conferred upon him a right to remain in India by virtue of the certificate of registration, then the Registration of Foreigners Rules, 1939, under which the certificate of registration was issued violated the provisions of the Act under which the Rules were framed and must, therefore, be struck down as bad. There is good deal of force in this contention of the learned Advocate General. The Registration of Foreigners Act 1939, under which the Registration of Foreigners Rules, 1939 were framed by the Central Government, is an Act to provide for the registration of foreigners in India and for no other purpose. Besides, on a plain construction of Rule 7(3) of the Rules it would be clear that it provides that a certificate of registration would be valid so long as the foreigner does not leave India. But it does not provide for the converse proposition, namely, that so long as a foreigner held a certificate of registration he would have right to remain in India or that no order could e made directing him to leave India. The appellant's contention that there was provision for cancellation of the certificate of registration under Rule 13 of the said Rules and such cancellation not having been done, the certificate conferred upon him a right to remain in India, suffers from patent infirmity. The proviso to Rule 13(1) provides for cancellation of a certificate of registration in the case of a tourist only and not of any other foreigner. The appellants contention, therefore that cancellation of the certificate of registration not having been made, as laid down in the Rules, the order to leave India could not be made, must therefore be rejected.

58. Mr. Subrata Roy Chowdhury argued that in order to determine the question whether the certificate of registration by itself conferred upon the appellant a right to remain in India, the Registration of Foreigners Rules, 1939, should be read along with the Foreigners Order, 1948. Under Clauses (1) and (2) of the said Order foreigners are required to obtain a Permit indicating therein the period during which they are authorised to remain in India. Under Clause (3) of the Order such foreigners are required to depart from India before the expiry of the period mentioned in the Permit and the Permit is required to be surrendered to the appropriate Registration Officer. Mr. Roy Chowdhury argued that Clauses (1), (2) and (3) of the Foreigners Order, 1948, imposed an obligation upon a foreigner to leave India and to confine his stay in India during the period mentioned in the Permit. The appellant, Mr. Roy Chowdhury argued, had not challenged the constitutional validity of the Foreigners Order, which is as much binding upon him as the Registration of Foreigners Rules, 1939. A Residential Permit has been issued to the appellant under paragraph 7 of the Foreigners Order, 1948. Under this Permit he was permitted to remain in India until August 2, 1960. The period of stay, however, was extended by subsequent orders until September 6, 1960, and the impugned order was issued requiring the appellant to leave India on September 7, 1960 Mr. Roy Chowdhury argued that even assuming that tie certificate of registration conferred upon the appellant a right to remain in India, such a right must be subject to the provisions of the Foreigners Order and also the terms of the Permit which was issued to the appellant under Clause (7) of that Order. There is good deal of force in this contention of Mr. Roy Chowdnury. There is no conflict between the provisions in the Registration of Foreigners Rules, 1939 and the Foreigners Order, 1948. The said Rules had been framed under the Registra-tion of Foreigners Act, 1939, for the purpose of registration of foreigners entering, being present in and departing from India. The foreigners Order, 1948, on the other hand was promulgated by the Central Government in exercise or its powers under Section 3 of the Foreigners Act, 1946, for the purposes of prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence in India. The presence of all foreigners in India is controlled and regulated both by the Registration of Foreigners Rules, 1939, and the Foreigners Order, 1948. The Registration of Foreigners Act, 1939, and the Rules framed thereunder and the Foreigners Act, 1946, and the Foreigners Order, 1948, deal with different aspects of a foreigner's entry into, stay in and departure from India. It is not open to a foreigner to contend that the provisions in the Foreigners Order, 1948, should be ignored and not given effect to in his case because he has obtained a certificate of registration under the Foreigners Rules, 1939.

59. The learned Advocate General further contended that since the appellant was a foreigner, and there was no dispute on this question, it was not open to him to challenge the validity or legality of the impugned order. It was argued that this very question was raised before the Supreme Court in Union of India v. Ghaus Mohammed, : 1961CriLJ703 in which it was held that the order of the Chief Commissioner of Delhi directing a Pakistan national not to remain in India after expiry of three days was valid. But in that case, however, it was not disputed that if the appellant was a foreigner then the order could not be challenged. The whole question in that case was whether the respondent, who was a Pakistan national, was a foreigner. In the appeal now before us the appellant contended, that even though he was a foreigner the order could not be made against him. The right to make the order is very much disputed by the appellant before us and therefore the Ghaus Mohammad's case, : 1961CriLJ703 is not of much assistance.

60. The appellant before us conceded that he was a foreigner, but he claimed the right to remain in India on the ground that the certificate of registration had conferred upon him the right to continue his residence, and this right could not be taken away from him. His further contention was that he had acquired Indian domicile which carried with it a right of residence. I have already dealt with the question of a foreigner's obligation to obtain a Residential Permit under the Foreigners Order, 1948, and a further obligation on his part to leave India before expiry of the date mentioned in the Residential Permit. The right of residence of a foreigner, therefore, is controlled and regulated by the Residential Permit which is issued to him. A foreigner cannot claim to reside in this country unless a Residential Permit has been obtained by him, merely because he has obtained a certificate of registration under the Registration of Foreigners Rules, 1939. In determining the question of the right of a foreigner to reside in this country the provisions in the Foreigner Order cannot be overlooked and indeed they must be strictly enforced.

61. The appellant before us who is admittedly a foreigner claims a right of residence in India indefinitely. He further claims that the bar and the restriction imposed on the stay of foreigners in this country by the several statutes discussed in this judgment and the Rules framed thereunder must be ignored in order to recognise his right of residence. At one stage he applied for Indian citizenship, but withdrew the application and communicated a firm decision on his part to leave this country, undoubtedly because he realised that he could not claim a right of residence in disregard of the statutory provisions and the provisions made in the Rules. Yet he has now come to this Court for relief with a petition under Article 226 of the Constitution The trial Court had on the materials in this case exercised its discretion in discharging the rule. No grounds have been made out before us for interfering with the discretion exercised by the trial Court in the order it had made. The trial Court had rightly rejected the contentions of the appellant before it. In this appeal however the appellant canvassed various additional grounds in support of his contentions.

62. I conclude by saying that there is no merit in the contentions of the appellant and this appeal must, therefore, fail and is accordingly dismissed with costs. Certified for two Counsel.

63. The operation of this order will remain stayed for seven days from today, as prayed tor, on condition that the appellant A. H. Magermans will report personally to the Hare Street Police Station every day during this period of seven days.

Bose, C.J.

64. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //