VINCENT FERRER Vs. DISTRICT REVENUE OFFICER ANANTHAPUR

JUDGEMENT

(1.) Vincent Ferrer is a Foreign National. He has been in India for nearly 20 years. He has applied for Indian Citizenship. The Government of Andhra Predesh has recommended his application. The application is pending with the Government of India. While so, the District Revenue Officer acting as the Civil Authority under the Foreigners Act has passed an order dated 24-12-173 restricting the movements of Vincent Ferrer to the district of Anantapur and requiring him to obtain the written permission of the Civil Authority if he wanted to leave the District, irrespective of the duration of the intended absence from the district Vincent Ferrer questions this order as arbitrary and made in bad faith.

(2.) A foreign national though entitled to equality before the law and the equal protection of the laws guaranteed by Article 14 of the Constitution, is not entitled to the protection of the Fundamental Rights guaranteed by Article 19 (1) (d) and (e) that is, the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory if India, as they are rights reserved for Indian citizens. On the other hand, clause 11 of the Foreigners Order empowers the Civil Authority appointed by the Central Government to direct, by order in writing, that any foreigner shall comply with such conditions as may be specified by the order in respect of his place of residence and his movements. Clause 11 gives very wide power to the Civil Authority but it goes without saying that the wider the power vested in the executive the greater the circumspection with which it must be exercised. Though clause 11 gives wide power to the Civil Authority , it does not mean that the power can be exercised arbitrarily or mala fide. Like all other discretionary powers vested by statute in the executive it must be exercised honestly and in good faith. Arbitrariness and bad faith are the very antithesis of equality before the law and the equal protection of the laws. An order made arbitrarily or in bad faith is always open to challenge on the ground that it offends the Fundamental Right of equality before the law and equal protection of the laws. Again an order purporting to be made under a statutory power is no order under that power or on irrelevant consideration , or without the authority applying its mind to the facts of the case. When a charge of mala fide, arbitrary, colorable or mechanical exercise of power is made, be it by a citizen or a foreign national, it is the duty of the Court to scrutinize the record and satisfy itself about the validity of the order. If is now well settled that even if a law is valid, individual orders made under that law may be struck down for arbitrariness or bad faith or colorable exercise of power or failure of the authority to apply its mind.

(3.) In Baswesharnath v. Income-tax Commr., AIR 1959 SC 149 the Supreme Court observed that the benefit of Art. 14 was not limited to citizens but was available to any person within the territory of India. It was observed that Article 14 was an injunction to both legislative as well as the executive organs of the State and the other subordinate authorities. In Kanghari Haldar v. State of West Bengal, AIR 1960 SC 457 and Bhukusa Yamasa Kshatriya Ltd . v. Union of India, AIR 1963 SC 1591 , it was pointed out that without challenging the vires of a statute it was conceivable that a notification issued under the statute could be successfully challenged as colorable or mala fide. In Ramakrishna Dalmia v. Justice Tendolkar , AIR 1958 SC 538 the Supreme Court observed that if a law was administered "with an evil eye and an unequal hand" or for an oblique or unworthy purpose the Court would strike down such abuse with a heavy hand. In State of Andhra Pradesh v. Rajareddy, AIR 1967 SC 1458 it was pointed out that official arbitrariness could be more subversive and destructive of equality than statutory discrimination. In these and numerous other cases the Supreme Court has always held that orders made in exercise of statutory powers are liable to be quashed on the ground of arbitrariness, want of good faith, colorable , exercise of power, failure to apply ones mind , etc.