P.B.Mukharji, J. - (1.) This is an application by Golam Khan under Article 226 of the Constitution asking for a Writ of Certiorari and Mandamus to quash and restrain the order dated 12th January, 1960 under section 3 (2) (c) of the Foreigners Act, 1940 (Act XXXI of 1946).
(2.) The order is by the Governor and reads as follows : "In exercise of the powers conferred by subsection (2) of section 3 of the Foreigners Act, 1946 (XXXI of 1946) as amended by the Foreigners Laws (Amendment) Act, 1957 (XI of 1957), and delegated to the State Government in Notification No. 4/3-56-F. 1 dated the 19th April, 1958, of the Government of India, Ministry of Home Affairs, the State Government is pleased to direct that the foreigner known as Mr. Gulam Khan s/o Shariff Khan an Afgan national (i) shall not remain in India after the expiry of 30 days from the date on which this order is served on him; and (ii) shall not thereafter re-enter India". 2a. Admittedly the petitioner is an Afgan National. Admittedly he was born in village Mazar, District Jalalabad in the foreign territory of Afga-nistan. Admittedly he came to India without any visa, permit or passport. Admittedly when the formal and regular method of passport system between India and Afganistan was introduced on the 18th February, 1948, the petitioner availed of such system. In fact, the petitioner admittedly applied, for and obtained on the 17th August, 1948 passport issued by the Royal Afgan Embassy, New Delhi No. 800/22278 of 17-8-48 with visa granted by the Government of India. This fact establishes that in 1948 he regarded himself as a foreigner, an Afgan national under the protection of the Afgan Embassy. Admittedly also the registration report dated the 15th September, 1948 under rules 5, 6i and 7 of the Registration of Foreigners Rules 1939 shows that the petitioner described himself as an Afgan National. The petitioner himself had all the official records of the Security Police brought out under this rule. According to the petitioner he left Afganistan in 1938. Therefore, between 1938 and 1948, a period covering ten years, he regarded himself as an Afgan and not as an Indian citizen or as an Indian national.
(3.) Subsequent history of the petitioner does not help him. Thereafter under rule 7 of the Foreigners Order the first residential permit was issued to the petitioner which was valid upto 31st March, 1949. Under that rule the permit is given on an application made by the foreigner himself and a copy is given to him and a copy is kept on the file. On the 16th December, 1948 the first visa granted by the Government of West Bengal for one year was issued. The visa was numbered 953. After the expiry of that first visa no further visa was required because then residential permits were issued under paragraph 7 of the Foreigners Order.;