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2008 DIGILAW 837 (CAL)

Gul Afgan v. STATE OF WEST BENGAL

2008-08-19

Dipankar Datta

body2008
JUDGMENT: 1. THE petitioner is an Afghan national. He filed W. P. No. 1334 (W) of 2008 on 18. 1. 08 for a direction on the respondents not to victimise him and to allow him to live with honour and dignity and further for restraining them not to act on any order that might have been passed against him directing him to quit India considering his status as a "refugee". Challenge in W. P. No. 2389 (W) of 2008, filed by the selfsame petitioner on 4. 2. 08, is to an order dated 1. 1. 08 passed by the Foreigners Regional registration Officer, Kolkata (hereafter the FRRO). By the said order, the FRRO in exercise of power conferred by Section 3 (2) (c) of the Foreigners Act, 1946 (hereafter the Act) read with notification of the Government of India dated 13. 7. 2000 has directed the petitioner not to remain in India with a further direction that he shall be deported immediately. Since the two petitions are related, the same have been heard together and would be governed by this common judgment. 2. MR. Deb Barman, learned Counsel appearing for the petitioner submitted that the second writ petition takes care of all the points raised by the petitioner in the first petition and therefore the second writ petition was argued by learned counsel for the parties. Mr. Deb Barman by referring to the provisions contained in the Act contended that the FRRO had no authority in directing the petitioner not to remain in India or to direct that he shall be deported immediately. According to him, the Central Government is the repository of power to direct, by order passed under Section 3 of the Act, that no foreigner shall remain in India or in any area prescribed in the order. However, no order has been passed by the central Government in this behalf and the FRRO lacked the authority and/or jurisdiction to pass such order. Replying to a query of the Court as to whether the FRRO could be authorised by the Central Government to make such order, he invited the attention of the Court to provisions contained in Section 12 of the Act and submitted that though the Act provides for delegation of authority, such delegation would not be applicable in the event any express provision has been made to the contrary. It was further contended that by exercise of delegated authority no order could be made under Section 3 (2) (c) of the Act in view of the provisions contained in Section 3 (3) thereof which ordains that a delegated authority may exercise powers in relation to clauses (e) or (f) only of sub-section (2). Since power to pass order under clause (c) cannot be delegated by the Central government, the FRRO could not have invoked the said provision to pass the impugned order dated 1. 1. 08. It is his submission that on this ground alone the order impugned in the writ petition is liable to be set aside. Per contra, Mr. Mukhopadhyay, learned Junior Standing Counsel appearing for the State contended that the impugned order does not suffer from any lack of jurisdiction or authority. He placed reliance on certain notifications issued by the Central Government purporting to empower the FRRO to pass order in terms of provisions contained in Section 3 (2) (c) of the Act. He also invited the attention of the Court to the fact that previously the Central Government had directed the petitioner to leave India which was communicated to him vide Memo dated 28. 7. 97 issued by the FRRO. Questioning the validity and/or propriety of the said order, the petitioner had instituted a civil suit which failed. In view of such position on facts, he contended that the petitioner has no legal right to move the present petition. A number of decisions were cited in support of the contention that since the petitioner has no further right to remain in India, the writ petition at its instance is not maintainable. 3. HAVING heard learned Counsel for the parties, this Court is of the considered view that though the point raised by Mr. Deb Barman prima facie appears to have some substance, the same is not required to be considered and a decision given thereon having regard to the fact that the Central Government had directed the petitioner to leave the country as far back as in July, 1997, since communicated to him by the FRRO vide a Memo dated 28. 7. 1997. This order is not on record but has been produced by the learned Junior Standing Counsel appearing for the State, which reads as under: " Sir, i am directed by the Government to ask you and your wife (Mrs. 7. 1997. This order is not on record but has been produced by the learned Junior Standing Counsel appearing for the State, which reads as under: " Sir, i am directed by the Government to ask you and your wife (Mrs. Samira Gul) to leave India within 15 days from the date of receipt of this letter. " It is on record that the petitioner instituted a suit wherein all the points raised by him were considered by the learned Civil Judge. The learned Judge in his judgment dated 27. 9. 02 took note of the fact that the petitioner was arrested in connection with Taltala Police Station Case No. 360 dated 18. 8. 99 under section 14 of the Act and subsequently was convicted there under which was a bar for him to obtain citizenship under the Citizenship Act, 1955. The learned judge wondered as to why the petitioner was not pushed back after conviction under Section 14 of the Act. Ultimately the suit was dismissed as not maintainable. Neither the judicial order of 27. 9. 02 was questioned in a superior court of law nor was the administrative order of 28. 7. 97 challenged before the appropriate forum and, accordingly, the same attained finality. 4. MR. Deb Barman could not dispute the position on facts that the order dated 28. 7. 97 was passed on the direction of the Central Government. Assuming arguendo that the impugned order dated 1. 1. 08 was passed by the FRRO without having due authority, the order dated 28. 7. 97 does not suffer from any infirmity and merely because the said order has not yet been implemented would not erode its effect. The same not having been interfered with is capable of being implemented without much ado. This Court, therefore, finds no reason to interfere with the impugned order which is treated to be one issued in continuation of the earlier order dated 28. 7. 97 of the Central Government. There is no merit in the writ petitions which stand dismissed. The petitioner shall have 3 weeks time to leave India. In default, the respondents shall be at liberty to take effective steps for deporting him in accordance with law. There shall be no order as to costs. 7. 97 of the Central Government. There is no merit in the writ petitions which stand dismissed. The petitioner shall have 3 weeks time to leave India. In default, the respondents shall be at liberty to take effective steps for deporting him in accordance with law. There shall be no order as to costs. Copy of the judgment and order shall be retained with the records of W. P. No. 1334 (W) of 2008, duly countersigned by the Assistant Court Officer. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be furnished to the applicant within 4 days from date of putting in requisites there for.