Back
HIGH COURT OF BOMBAY
K. K. DESAI, J.
Bawalkhan Zelanikhan
Versus
B. C. Shah
Misc. Petn. No. 510 of 1958
Decided On : 03-12-1958
FOREIGNERS ACT, 1946 - SECTION 3(2)(E)(II) - FOREIGNERS ORDER, 1948 - CLAUSE 11 - VALIDITY OF ORDER DIRECTING FOREIGNER TO REPORT TO POLICE DAILY - POWER OF CIVIL AUTHORITY TO IMPOSE CONDITIONS ON MOVEMENTS OF FOREIGNER - INTERPRETATION OF WORD "MOVEMENTS" - SCOPE OF JUDICIAL REVIEW.
Fact of the Case:
The petitioner, a national of Afghanistan, challenged the validity of an order issued by the respondent under Clause 11 of the Foreigners Order, 1948, directing him to report to the police daily. The petitioner argued that the order was without jurisdiction as there was no power under Clause 11 to give such a direction.
Finding of the Court:
The court held that the order was valid and that the respondent had jurisdiction to impose the condition of daily reporting to the police. The court interpreted the word "movements" in Clause 11(2) of the Foreigners Order to include "actions, activities, or doings" of a foreigner, and held that the condition to report to the police related to the petitioner's activity and was therefore justifiable under the provisions of Clause 11.
Issues: 1. Whether the respondent had the power under Clause 11 of the Foreigners Order to direct the petitioner to report to the police daily. 2. Whether the condition imposed by the respondent was a valid restriction on the petitioner's movements.
Ratio Decidendi: 1. The court interpreted the word "movements" in Clause 11(2) of the Foreigners Order to include "actions, activities, or doings" of a foreigner. 2. The court held that the condition to report to the police related to the petitioner's activity and was therefore justifiable under the provisions of Clause 11.
Final Decision: The petition was dismissed with costs.
JUDGMENT :- This is a petition under Art. 226 of the Constitution challenging the validity of an order dated November 1st, 1958 made by the respondent in pursuance of Clause 11 of the Foreigners Order, 1948." The relevant facts are as follows :
2. The petitioner is a foreigner and is a national of Afghanistan. By an order dated June 3rd, 1957 made by the Dy. Secretary to the Government of India in exercise of the powers conferred by sub-section (2) of section 3 of the Foreigners Act it was directed that the petitioner shall not remain in India and that he shall depart from India by landroute and thereafter shall not re-enter India. According to the respondent the petitioner has been involved in six criminal cases a list whereof is enclosed as Ex. 1 to the affidavit in reply. The petitioner has never denied the binding character of the order of deportation dated June 3rd, 1957. The Government however has not been able to deport the petitioner from out of India because the petitioner has to go to Afghanistan by land-route and at the date of the order there was no visa available to enable the petitioner to be sent through Pakistan. At present steps are being taken by the Government for renewing petioners pass-port for his return to Afghanistan. It appears that in the meanwhile, having regard to the opinion which the respondent had formed regarding the petitioner on his having been involved in criminal cases mentioned in Ex. 1 the order in question was made on November 1st, 1958. The relevant part of the order dated November 1st, 1958 runs as under :
"You are hereby ordered under the powers vested in me under Para 11 of the Foreigners Order, 1948 :
(a) To report to the Inspector of Police, Registration of Foreigners Branch, Special Branch, II C. I. D., at his office at 3 p.m. every day.
(b) Not to change your address without permission in writing previously obtained from the Deputy Commissioner of Police, x x x
(c) Not to leave the limits of Greater Bombay without permission in writing x x x"
3. The petitioner has argued this petition before me by contending that under Clause 11 of the Foreigners Order referred to in the impugned order, there is no power of any kind in the respondent to give directions as contained in clause (a) in the order, viz. to report to the Inspector of Police, Registration of Foreigners Branch, Special Branch, II C. I. D., at his office at 3 p.m. every day. The petitioner has contended that as there is no such power contained in Clause 11 of the Foreigners Order, this part of the order is without jurisdiction and there should be a writ of mandamus directing the respondent to forbear from enforcing that order.
4. In connection with the arguments advanced on behalf of the petitioner and the respondent, it is relevant to refer to certain provisions of the Foreigners Act and the Foreigners Order. The relevant provisions in the Foreigners Act are as follows :
"3. Power to make orders : (1) The Central Government may by 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 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
(a) shall not enter India or shall enter India only at such times and by such route x x x
(b) shall not depart from India, or shall depart only at such times and by such route x x x
(c) shall not remain in India or in any prescribed area therein.
(cc) x x x x
(d) shall remove himself to, and remain in, such area in India as may be prescribed;
(e) shall comply with such conditions as may be prescribed or specified -
(i) requiring him to reside in a particular place; (ii) imposing any restrictions on his movement. (iii) to (viii) x x x x
(
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
