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Andhra Pradesh High Court
Judges : LAKSHMAIAH
P.Mohd.Khan - Appellant
Versus
State OF A.P., represented by the Secretary to Government, Home (Passports-A) Department, Hyderabad - Respondent
Decided On : 12-19-77
The court held that an order passed under section 3(2)(c) of the Foreigners Act, 1946 directing the petitioner treating him as a foreigner not to remain in India, even if considered to be an administrative in nature, is vitiated for non-compliance with the principles of natural justice.
Fact of the Case:
The petitioner, a person claiming to be a citizen of India and not a foreigner, sought the issuance of a writ of certiorari for the purpose of quashing an order dated 30th June, 1976 passed under section 3 (2) (c) of the Foreigners act, 1946 directing him not to remain in India after the service of the order treating him as a foreigner.
Finding of the Court:
The court held that the impugned order was passed in violation of the principles of natural justice as the petitioner was not given a notice or an opportunity of being heard before the order was passed. The court further held that the Act did not provide for the observance of the principles of natural justice, but the justice of the common law supplies the omission of the legislature through interpretative process for fulfilling the purpose of the statute and doing substantial justice which are all conceived in the public interest. Therefore, the order under section 3(2)(c) is bad for the reason that it is violative of the principles of natural justice.
Issues: Whether an order passed under section 3(2)(c) of the Foreigners Act, 1946 directing the petitioner treating him as a foreigner not to remain in India, even if considered to be an administrative in nature, is vitiated for non-compliance with the principles of natural justice?
Ratio Decidendi: The court held that the impugned order was passed in violation of the principles of natural justice as the petitioner was not given a notice or an opportunity of being heard before the order was passed. The court further held that the Act did not provide for the observance of the principles of natural justice, but the justice of the common law supplies the omission of the legislature through interpretative process for fulfilling the purpose of the statute and doing substantial justice which are all conceived in the public interest. Therefore, the order under section 3(2)(c) is bad for the reason that it is violative of the principles of natural justice.
Final Decision: The court allowed the writ petition and quashed the impugned order. However, the court held that it was open to the authorities concerned, if so advised, to proceed against the petitioner after observing the principles of natural justice by giving him notice and thereafter an opportunity of being heard.
( 1 ) THIS is a petition filed under article 226 of the Constitution of India, by a person claiming to be a citizen of india and asserting that he is not a foreigner, seeking the issuance of a writ of certiorari for the purpose of quashing an order dated 30th June, 1976 passed under section 3 (2) (c) of the Foreigners act, 1946 directing him not to remain in India after the service of the order treating him as a foreigner. That order reads thus:"government OF ANDHRA pradesh home (Passport) Department no. 1336/ppt. A/76-2 dated 30th june, 1976. To shri P. Mahammad Khan, s/o. Ramza-nkhan, anantapur. ORDER.-In exercise of the powers conferred by clause (c) of sub-section (2) of section 3 of the Foreigners act, 1946 (Central Act XXXI of 1946) the Government of Andhra Pradesh, acting in pursuance of the powers delegated to them by notification no. 4/3/56-1 F. (1) dated 19th April, 1958 of the Government of India in the Ministry of Home Affairs, hereby direct that the foreigner known as sri P. Mohammad Khan not to remain in India after service of this order on him. If he contravenes this order, action will be taken against him under the said Act. Sd. S. Nagabhushanam for Secretary to Government. "foreigners Act-scheme:
( 2 ) THE Foreigners Act, 1946 (referred to hereinafter merely as the Act ) is enacted with a view to providing for the exercise by the Central Government of certain powers in respect of the entry of foreigners into India, their presence therein and their departure therefrom.
( 3 ) THE Act contains 16 sections. By section 2 (a) the expression "foreigner" is defined to mean "a person who is not a citizen of India". Section 3 confers powers on the Central Government to make certain orders and reads in so far as it is material thus:" 3 (1 ). 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 prescribed class or description of a 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 the foregoing power, orders made under this section may provide that the foreigner. . . * * * (c) shall not remain in India or in any prescribed area therein;"
( 4 ) THE determin ition of nationality is dealt with under section 8 of the Act.
( 5 ) SECTION 9 deals with burden of proof and reads as follows;"if in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is a not foreigner or is not a foreigner of such paticular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence act, 1872, lie upon such person".
( 6 ) SECTION 12 provides for delegation of authority and runs thus:-"12. Any authority upon which any power to make or give any direction, consent or permission or to do any other act is conferred by this Act or by any order made thereunder may, unless express provision is made to the contrary, in writing authorise, conditionally or otherwise, any authority subordinate to it to exercise such power on its behalf, and thereupon the said subordinate authority shall, subject to such conditions as may be contained in the authorisation, be deemed to be the authority upon which such power is conferred by or under this Act. "
( 7 ) SECTION 14 deals with penalties and reads as follows: -"14. If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if such person has entered into a bond in pursuance
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