Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Revision Nos. 1802 and 1803 of 1957

Advocates

R. Chaudhury and C.F. Ali
Majumdar and S.K. Rai Chaudhury
for Opposite Party 1-3

Judges

Sinha, J.

Acts

SECTION 3 FOREIGNERS ACT 1946
provision of Article 258(1) of the Constitution,
SECTION 3 A FOREIGNERS ACT
Foreigners' Act the Central Government
FOREIGNERS ACT 1946
SECTION 12 FOREIGNERS ACT

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Smart Summary

Judgment Summary — Sinha, J.

Factual and Procedural Background

The petitioners are Dawood Ali Arif Bham (husband) and his wife Aziza Begum. Dawood Ali Arif Bham asserted that he was the Mutwalli of a Wakf in Calcutta created by his grandfather. In 1950, during a recrudescence of communal disturbances in Calcutta, the petitioners left for Amnura in Rajshahi (Eastern Pakistan). While there the husband applied for and obtained a Pakistan "special passport" dated 28 November 1952 from the District Magistrate, Rajshahi, and thereafter the petitioners returned to India using that passport. It is alleged that around 5 May 1954 the petitioner surrendered the passport to the Deputy High Commissioner for Pakistan in Calcutta.

On 24 May 1957 the petitioner was served with a notice signed by Shri B. Bagchi, Deputy Commissioner of Police, Special Branch and Civil Authority for Calcutta and Suburbs, ordering him to leave India within thirty days, failing which he would be liable to action including prosecution under the Foreigners' Act, 1946 and the Foreigners Order, 1948. The petitioners challenged that order by obtaining rules issued on 10 July 1957 calling upon the opposite parties to show cause why a writ in the nature of mandamus should not issue restraining them from giving effect to the impugned order.

Legal Issues Presented

Whether, having gone to Eastern Pakistan and applied for and obtained a Pakistan passport, the petitioner had migrated to Pakistan after 1 March 1947 and thereby ceased to be an Indian citizen under Articles 5 and 7 of the Constitution.
Whether the impugned order of 24 May 1957 purporting to require the petitioner to leave India is valid under the Foreigners' Act, 1946 (including section 3 and the definition of "foreigner") and subordinate delegation provisions (section 12).
Whether the State Government had validly delegated, in writing, the power to issue the impugned notice to the Deputy Commissioner of Police, Special Branch, Calcutta.

Arguments of the Parties

Petitioners' Arguments

The affidavits filed by the petitioners contend that the acts relied upon (going to Eastern Pakistan, obtaining a passport) were done under the stress of circumstances (communal disturbances) and that the petitioner did not intend to make Pakistan his abode or accept Pakistan nationality.
It was also asserted (by or on behalf of the petitioner) that the passport was later surrendered, which the petitioners relied upon in contesting the characterisation of their status.

State / Respondents' Position (as evidenced in material placed before the Court)

The respondents produced a letter (No. 2253-F/WP38/57 dated 30 April 1957) from N. Som, Deputy Secretary to the Government of West Bengal, indicating that Pakistan nationals who had come on valid transit visas but were staying without authority might be served with notices directing them to leave India within one month and prosecuted if they did not comply.
The State filed an affidavit by the Deputy Secretary asserting that he was authorised to deal with matters relating to foreigners and that he had made the instruction embodied in that letter.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Bihar v. Kumar Amar Singh (1) [(1955) S.C.A 376]	Establishes that Article 7 overrides Article 5 and that a person who migrated to Pakistan after 1.3.1947 ceases to be an Indian citizen; includes the proposition that even the wife of an Indian citizen who migrated to Pakistan after that date will lose Indian citizenship.	The court relied on this authority to support the proposition that migration to Pakistan after 1 March 1947 can terminate Indian citizenship, and to frame the question whether the petitioner had in fact so migrated by obtaining a Pakistan passport.

Court's Reasoning and Analysis

The court undertook a step-by-step legal analysis grounded in the Constitution and the Foreigners' Act, as follows.

Constitutional status under Articles 5 and 7:
Article 5 ordinarily confers citizenship at the commencement of the Constitution upon persons born in India or with parents born in India or ordinarily resident for five years. Article 7 provides that a person who migrated from India to the territory now included in Pakistan after 1 March 1947 shall not be deemed a citizen of India (subject to the proviso concerning return under a permit). The court accepted that, on the face of Article 5, the petitioner was initially an Indian citizen.
Effect of the petitioner's conduct (passport and application):
The court examined whether the petitioner had, after 1 March 1947, migrated to Pakistan. It observed that while leaving India during communal disturbances by itself would not conclusively show an intention to migrate, the petitioner had applied for and obtained a Pakistan passport. The court emphasized that an application for a Pakistan passport requires a declaration affirming Pakistan nationality; by obtaining such a passport the petitioner had effectively represented himself as a Pakistan national and caused Pakistan to accept him as such. Consequently, the court treated that conduct as sufficient to complete the migration to Pakistan, in the absence of convincing evidence that the application was made under solely coercive circumstances.

The court also noted that surrender of the passport (allegedly on about 5 May 1954) did not, in its view, alter the legal position or restore Indian citizenship.
Reliance on precedent:
The court referred to the Supreme Court decision in State of Bihar v. Kumar Amar Singh to reinforce that Article 7 overrides Article 5 and that migration to Pakistan after the specified date results in loss of Indian citizenship (including in the case of a wife who migrated).
Statutory framework under the Foreigners' Act, 1946:
The court set out that the Foreigners' Act defines a 'foreigner' as a person who is not a citizen of India and confers on the Central Government power (section 3) to make orders regulating entry, departure, presence or continued presence of foreigners in India, including a power under section 3(2)(c) to direct that a foreigner "shall not remain in India or in any prescribed area therein."

Section 12 permits authorities exercising powers under the Act to authorise in writing subordinate authorities to exercise such powers.
Entrustment to the State and delegation:
The court noted Article 258(1) under which the President may entrust functions to a State Government. By Notification No. 9/2/53-F.II(1) dated 16 July 1955 the President, with the consent of the Government of West Bengal, had entrusted to that State those functions of the Central Government under clause (c) of sub-section (2) of section 3 of the Foreigners' Act, subject to conditions; consequently West Bengal could, under section 12, delegate such powers to subordinate officers by written authorisation.
Whether written delegation to the Deputy Commissioner of Police existed:
The court examined the evidence put forward to demonstrate delegation: a letter (No. 2253-F/WP38/57 dated 30 April 1957) from the Deputy Secretary, West Bengal, to the Deputy Commissioner of Police, Special Branch, Calcutta, and an affidavit by the Deputy Secretary asserting authority. The letter stated that Pakistan nationals who had come on valid transit visas and were staying without authority "may be served with notices" directing them to leave India within one month and face prosecution if they did not comply.

The court found this material insufficient to establish a valid written delegation under section 12. Specifically, nothing showed that the Deputy Secretary was himself authorised to deal with such matters, and the letter did not expressly or specifically purport to vest the Deputy Commissioner of Police with power to issue the notices. The court stressed that delegation must be specific and express, particularly when serious actions (such as requiring persons to leave the country) are involved.

On this basis the court concluded that the Deputy Commissioner of Police, Special Branch, had failed to demonstrate jurisdiction to act under section 3 of the Foreigners' Act in the present case.

Holding and Implications

RULES MADE ABSOLUTE; WRIT IN THE NATURE OF MANDAMUS ISSUED.

Holding (direct ruling): The court held that the applications succeeded. The rules were made absolute and a writ in the nature of mandamus was issued directing the respondents to forbear from giving effect to the order of the Deputy Commissioner of Police, Special Branch, dated 24 May 1957 which ordered the petitioners to leave India within the prescribed time.

Consequential and procedural effects:

There was to be no order as to costs.
The decision was expressed to be without prejudice to the State Government proceeding under the Foreigners' Act "in accordance with law" (i.e., following lawful delegation and procedure).

Broader implications: The opinion applies existing constitutional and statutory principles (including the precedent cited) to the facts and restrains executive action taken without sufficient written delegation. The opinion does not purport to create a new precedent beyond its application to the present facts.

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Dawood Ali Arif And Ors. v. The Deputy Commissioner Of Police, Special Branch And Ors. Opposite Parties.

The Judgment of the Court was as follows:

Sinha, J.:— The facts in these two cases are shorty 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 Kaseem 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 Rajshahi 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, Rajshahi, is dated the 28th November, 1952. With this passport, the petitioner and his wife came back to India. On or about the 5th May, 1954 it is alleged that he surrendered his passport to the Deputy High Commissioner for Pakistan in Calcutta. On the 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 Arff Bham, s/o L. Ali Ariff 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 the 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 law 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 less 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 resettlement 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, the petitioner cannot be heard to say that he continued to be an Indian citizen, that he never migrated to Pakistan and the fact that the special passport was surrendered does not seem to have any value in law and has no effect upon the position or the status of the petitioner. It has now been held by the Supreme Court in State of Bihar v. Kumar Amar Singh (1) [(1955) S.C.A 376] that Article 7 of 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 XXXI 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 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 foregoing power, orders made under this section may provide that the foreigner—

5. Section 12 of the said Act, gives power to any authority 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 or to its officers functions in relation to any matter to which the executive power of the Union extends.”

6. 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 the 16th July, 1955 the President with the consent of the Government, inter aria, 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.

7. 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 i letter No. 2253-F/WP38/57, dated the 30th April, 1957 written by Sri N. Som, the Deputy Secretary to the Government of West Bengal to the Deputy Commissioner of 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 of 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 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 the 30th April, 1957 is in accordance with law. The first application 4s 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.

8. 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 the order of Deputy Commissioner of Police, Special Branch, dated the 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 prejudice to the State Government proceeding under the Foreigners' Act, in accordance with law.

A.K.D.G

Dawood Ali Arif And ... v. The Deputy Commissio...