BHAWALKHAN ZELANIKHAN Vs. B C SHAH

JUDGEMENT

(1.) 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 pursnance of Clause 11 of the Foreigners Order, 1948. The relevant facts are as follows.

(2.) The petitioner is a foreigner and is a national fo Afghanistan. By an order dated June 3rd, 1957 made by the Dy. Secretary to the Government of India in exedrcise o the powers conferred by the sub-section (2) of section 3 of the Foreigners Act it was directed that the petitioenr 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 petitoner 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 petitioner's pass-port for his return to Afghanistan. It appears that int he meanwhile, having regard tot he opinion which the respondent had formed regarding the petitoner on his having been involved in criminal cases mentioned in Ex. 1 the order in questionw as made on November 1st, 1958. The relevant past of the order dated November 1st 1958 runs as order: 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 a change your address withour 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 petitoner 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 (1) in the order, viz, to report to the Inspector of Police, Registration of Foreigners Branch, Special Branch, II C. I. D., at his offce 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 par of the order is without jurisdiction and there should be a writ aof mandamus directing the respondent to forbear from enforcing that order.