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HIGH COURT OF CALCUTTA
C. J. , B. C. Mitra
A. H. MAGERMANS - Appellant
Versus
S. K. GHOSE - Respondent
Civil Appellate Jurisdiction . Of .
Decided On : May 19, 1965
The appellant, a Belgian national, came to India on a missionary visa and later obtained a residential permit. He was served with an order to leave India, which he challenged on various grounds, including excessive delegation of legislative power, violation of Article 14 of the Constitution, and mala fides. The court held that the delegation of power to the executive under the Foreigners Act was not excessive, that the order was not legislative in nature, and that there was no violation of Article 14. The court also rejected the appellant's contention that the order was mala fide. The court further held that the appellant's certificate of registration did not confer upon him a right of residence in India. The court dismissed the appeal.
Fact of the Case:
The appellant, a Belgian national, came to India on a missionary visa and later obtained a residential permit. He was served with an order to leave India, which he challenged on various grounds, including excessive delegation of legislative power, violation of Article 14 of the Constitution, and mala fides.
Finding of the Court:
The court held that the delegation of power to the executive under the Foreigners Act was not excessive, that the order was not legislative in nature, and that there was no violation of Article 14. The court also rejected the appellant's contention that the order was mala fide. The court further held that the appellant's certificate of registration did not confer upon him a right of residence in India.
Issues: 1. Whether the delegation of power to the executive under the Foreigners Act was excessive? 2. Whether the order was legislative in nature? 3. Whether there was a violation of Article 14 of the Constitution? 4. Whether the order was mala fide? 5. Whether the appellant's certificate of registration conferred upon him a right of residence in India?
Ratio Decidendi: 1. The court held that the delegation of power to the executive under the Foreigners Act was not excessive because the legislature had clearly indicated the underlying principle and policy of the 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. 2. The court held that the order was not legislative in nature because it was made in exercise of the powers conferred by the Foreigners Act, and was not a piece of legislation in itself. 3. The court held that there was no violation of Article 14 of the Constitution because the order was not discriminatory, and was made in accordance with the law. 4. The court held that the order was not mala fide because there was no evidence to support the appellant's contention that the order was made for improper reasons. 5. The court held that the appellant's certificate of registration did not confer upon him a right of residence in India because the certificate was only valid for a limited period of time, and did not give the appellant any special rights or privileges.
Final Decision: The court dismissed the appeal.
( 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 several posts in commercial organisations. The Department of Registration of 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 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. Thereafter the appellant moved a petition under Article 226 of the Constitution and obtained a rule nisi, in Mater 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 employers, 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 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 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 directing him to quit India. On November 23, 1960, the appellant moved this Court under Article 226 of the Constitution and obtained a rule nisi which was discharged by Banerjee, J. , by his judgment and order dated, Nove
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