1. The facts in these two cases are shortly as follows : The petitioner in the first case is Dawood Ali Arif Bham and the petitioner in the second case is his wife. The petitioner Dawood Ali Arif Bham says that he is the Mutwalli of a wakf situated in Calcutta, the wakf estate having been created by the petitioner's grand-father Hazi Kasem Arif Bham, deceased. He says that in 1950, when there was recrudescence of communal disturbances in Calcutta, he and his wife Aziza Begum, petitioner in the second case, left for Amnura in Rajshai situate in Eastern Pakistan. There, he resided for some time and eventually he applied for a Pakistan passport. In the meantime the passport-cum-visa system had been introduced in India, sometime in October, 1952 and the special passport obtained by the petitioner from the District Magistrate, Rajshai, is dated 28th November, 1952. With this passport, the petitioner and his wife came back to India. On or about 5th May, 1954 it is alleged that he surrendered his passport to the Deputy High Commissioner for Pakistan in Calcutta. On 24th May, 1957 the petitioner was served with a notice by Sri B. B. Bagchi, Deputy Commissioner of Police, Special Branch, Calcutta. The order was in the following terms :
'I order that Shri Dawood Ali Arif Bham, s/o L. Ali Arif Bham of 3 Amratala Lane, Calcutta, shall leave India within thirty (30) days from the date of service of this notice, failing which he will render himself liable for action including prosecution under the provisions of the Foreigners' Act 1946 and Foreigners Order, 1948.'
2. This order was signed by Shri B. Bagchi as Deputy Commissioner of Police, Special Branch and Civil Authority for Calcutta and Suburbs. It is against this order that the petitioner has come up to this Court. These Rules were issued on 10th July, 1957 calling upon the opposite parties to show cause why a Writ in the nature of Mandamus should not issue, directing them to forbear from giving effect to the order complained of in the petition, and for other reliefs. The position in Jaw seems to be as follows : Article 5 of the Constitution lays down that at the commencement of the Constitution, every person who had his domicil in the territory of India and who was either born in the territory of India or either of whose parents was born in the territory of India, or who had been ordinarily resident in the territory of India for not fess than five years immediately preceding such commencement, shall be a citizen of India. This provision of law is however subject to Article 7 which is set out below :
'Notwithstanding anything in Articles 5 and 6 a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be citizen of India :
Provided that nothing in this Article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for re-settlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of Clause (b) of Article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.'
3. According to Article 5, the petitioner is undoubtedly a citizen of India. He was born, and his parents were born, in Indian territory and he was residing in India immediately prior to the commencement of the Constitution, not only for 5 years but all his life. The question is whether it can be said that after the first day of March, 1947 he has migrated from the territory of India to the territory now included in Pakistan. I have stated above that in 1950 the petitioner and his wife deliberately left India and went over to Eastern Pakistan. It may be that there was a reason for going, namely, the communal disturbances in India. But even assuming that this was the reason why they went to Eastern Pakistan, the question is whether they had the intention of making it their abode or residence in future. If the petitioner has deliberately accepted Pakistan nationality, or in other words, if it could be shown that he has acted with deliberation in renouncing his Indian citizenship and accepting Pakistan nationality, then in my opinion, he is precluded from saying that he had no intention of making Eastern Pakistan his abode or residence. The question seems to be very simple. The petitioner, to start with, was an Indian national, the question is, did he continue to be so or did he accept Pakistan nationality? The simple fact that he went to Pakistan at a time when there was communal disturbance would by itself prove nothing. But having gone there, he applied and obtained a Pakistan passport. In order to obtain a Pakistan passport, it is necessary to make a declaration affirming that the applicant was a Pakistan national. Having made such an application, and having obtained a Pakistan passport on the strength thereof the position was that the petitioner became a national of Pakistan, and his migration to Pakistan was complete. A passport by itself is not a conclusive proof of nationality. But it is accepted as a proof of the fact, by international agreement and the comity of nations. But whatever be the probative value of it, surely, a person who has deliberately applied for a passport affirming himself to be a Pakistan national cannot be heard to say that he did so under false pretences. The affidavits filed before me contain a lot of special pleading to the effect that whatever the petitioner did was under the stress of circumstances. That, in my opinion, cannot be accepted. As I have said, the mere going to Pakistan under provocative circumstances would have done no harm. But there was no occasion for the petitioner to declare himself to be a Pakistan national and accept a Pakistan passport. By accepting a Pakistan passport he caused the sovereign state of Pakistan to accept him as its citizen and to request other sovereign states of the world to extend protection and safety to the petitioner as a Pakistan citizen. After all this, thepetitioner cannot be heard to say that he continuedto be an Indian citizen, that he never migrated toPakistan, and the fact that the special passport wassurrendered does not seem to have any value inlaw and has no effect upon the position or thestatus of the petitioner. It has now been held bythe Supreme Court in, State of Bihar v. KumarAmar Singh, (S) : 1SCR1259 (A), that Article 7of the Constitution clearly overrides Article 5 and that even the wife of an Indian citizen, who migrated to Pakistan after 1-3-47, will lose her Indian citizenship. That being so, the question is whether the steps taken against the petitioner under the Foreigners' Act 1946 (Act 31 of 1946), are valid in law.
4. This is an Act passed by Parliament, and under Section 2, a 'foreigner' has been defined to be a person who is not a citizen of India. As I have pointed out above, a citizen of India who has migrated after the prescribed date, into Pakistan, is no longer a citizen of India and therefore would come under the definition of a 'foreigner'. Section 3 confers upon the Central Government power to make orders, The relevant provision is as follows :
'3. Power to make orders ; The Central Government may by order make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribedclass or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.
(2) In particular and without prejudice to the generality of foregoing power, orders made under this section may provide that the foreigner
(c) shall not remain in India or in any prescribed area therein;'
Section 12 of the said Act, gives power to anyauthority upon which any power to make or give any direction etc. under the Act is conferred by the Act, to authorise in writing any authority subordinate to it, to exercise such power in its discretion. I now come to the provision of Article 258(1) of the Constitution, which runs as follows :
'258 (1). Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government orto its officers functions in relation to any matter to which the executive power of the Union extends.'
5. Thus we see that under the Foreigners' Act the Central Government has got the power to order a foreigner to leave Indian territory. By Notification No. 9/2/53- F.II(1) dated 16th July, 1955 the President with the consent of the Governments, inter alia of West Bengal, has entrusted to that Government the function of the Central Government for making orders of the nature specified in Clause (c) of Sub-section (2) of Section 3 of the Foreigners' Act of 1946, in respect of foreigners other than enemy foreigners as defined in the Enemy Foreigners' Order 1939, subject to certain conditions. The conditions are roughly these : That notwithstanding this entrustment, the Central Government could still exercise the powers under the Act and the actions of the State Government should not be exercised in a manner inconsistent with any order of the Central Government. We thus see that under the above-mentioned notification, the West Bengal Government became entrusted with the power of the Central Government under Section 3 of the Foreigners Act. That being so, under Section 12 of the said Act it can delegate the power to a subordinate Officer in writing The next question is as to whether the State Government has delegated that power in writing to the Deputy Commissioner of Police, Special Branch, Calcutta. The only order of delegation that has been produced is a letter No. 2253-F/WP 38/57 dated 30th April, 1957 written by Sri N. Som, the Deputy Secretary to the Government of West Bengal to the Deputy Commissioner o Police, Special Branch, Calcutta. In that letter, it has been stated that Pakistan nationals who have come to India on valid transit visas and were staying on without authority may be served with notices immediately directing them to leave India within a period ot one month and if they did not do so, then they will be prosecuted. I gave an opportunity to the State Government to place materials before me to show that there has been a written delegation which would be valid under Section 12 of the Foreigners' Act. This is all that can be placed before me. There is an affidavit by the Deputy Secretary stating that he has been authorised to deal with matters relating to foreigners and he has made this order. In my opinion, the material placed before me is not sufficient to establish his authority. To start with, nothing has been shown to me to establish that the Deputy Secretary to the Government of West Bengal is authorised to deal with such matters, or that he could deal with such matters. The letter by itself does not even purport to clothe the Deputy Commissioner of Police, Special Branch, Calcutta, with any authority, It is stated that certain action should be taken, but it is not stated by whom. The delegation of authority must be specific and express, and in this matter the Government did not purport to clothe the Deputy Commissioner of Police, Special Branch, Calcutta, with power to deal with foreigners. The letter merely says that certain classes of people may be served with notices' but does not say that it was for the Deputy Commissioner of Police to issue or to serve notices himself, as such delegate. After all, a very serious action is being taken and, therefore the person exercising such authority must show, to the complete satisfaction of the Court, that the authority is there and that it is being exercised lawfully. The Deputy Commissioner of Police, Special Branch, Calcutta, has thus been unable to show that he has jurisdiction to act under Section 3 of the Foreigners' Act and that the order dated 30th April, 1957 is in accordance with law. The first application is made on behalf of the husband and the second is on behalf of his wife, and the position is the same so far as the facts are concerned.
6. The result is that both the applications must succeed. The Rules are made absolute and there must be a Writ in the nature of Mandamus directing the respondents to forbear from giving effect to order of the Deputy Commissioner of Police, Special Branch, dated 24th May, 1957 ordering the petitioners to leave India within the time prescribed therein. There will be no order as to costs. But this will be entirely without prejudiceto the State Government proceeding under the Foreigners' Act, in accordance with law.