- (1.) The petitioner S. P. Ghosh was born at Diamond Harbour in India on the 1st February, 1930. In or about October, 1950 he went to the United Kingdom for his education. In August, 1960 he applied for registration as a citizen of the United Kingdom and the application being accepted he became a citizen of the United Kingdom on and from the 26th September, 1960. He has married in England. In or about September, 1960 the petitioner entered into a contract of service with Messrs. Macneil Barry Ltd. for three years, renewable for subsequent term or terms. Under the terms and conditions of the said agreement, the petitioner is required to stay in India as long as the contract subsists. The petitioner came to India in February, 1961 and joined his post at Calcutta. Sometime in August, 1960 the petitioner's wife Mrs. Mergarett Ghosh had written to the Reserve Bank of India, Exchange Control Department, Central Office, Bombay, asking for information as to whether exchange facilities were granted to British nationals temporarily resident in India. I have seen the original letter, which does not give any particulars and makes no mention of the petitioner or the circumstances under which he, and Indian national by birth, had become a national of the United Kingdom. On the 12th August, 1960 the Assistant Controller of the Reserve Bank of India, in its Exchange Control Department, Bombay, wrote back to say that reasonable exchange facilities were granted to British nationals temporarily resident in India to enable them to make remittances from their current income for family maintenance or savings in U.K. He further recommended that the remitter should contract his bankers for the necessary remittance facilities. The letter also contains the information that a British-born wife of an Indian national was treated as an Indian national for exchange control purposes. Sometime in May, 1962 the petitioner instructed his Bankers, Messrs. National and Grindlays Bank Ltd., Lloyds Branch, Chowringhee, Calcutta, to make arrangements for remittances to be sent to the United Kingdom. The petitioner filed in a declaration form, which is prescribed for that purpose, and a copy of it is annexure 'A' to the supplementary affidavit affirmed by the petitioner on the 29\8th November, 1963. In that form, the petitioner mentioned his 'nationality' as a 'British subject, citizen of the United Kingdom and colonies'. Against the entry - 'country of domicile', he mentioned 'United Kingdom'. Entry Nos. 4 and 11 are important and are set out below: - "4. If country of domicile declared under (3) above is other than India, please state briefly the grounds on which the claim is based. (nature of connections of assets including house or other property owned in the country should be furnished, together with any other facts which in applicant's opinion establish his claim to non-Indian domicile). 11. Country to which remittances are desired to be made, purpose for which the remittances are desired and the scale of remittances. (Please give average monthly amount to be remitted)" Bank account. United Kingdom, Family maintenance & Personal Savings (Building Society) Rs.1350/00 per month.
(2.) In the said declaration, the petitioner mentioned that he was born in India and resided there until he was 20 years of age and had gone to the United Kingdom for "education and employment". The average net monthly income to the petitioner was declared to be Rs.1627/-, and as stated above, he wanted to send Rs.1350/- per month to the United Kingdom. He also mentioned that he had a British Passport. The petitioner's Bank referred the matter to the Reserve Bank of India. On or about 7th July, 1962 the Reserve Bank of India advised the petitioner's Bank that for exchange control purposes the petitioner was to be considered as of Indian domicile, and as such he could not be allowed to avail himself of remittance facilities in terms of paragraph 2(1) of Section XI of the Exchange Control Manual. An application by the petitioner might, however, be considered if he made it in the prescribed form appropriate for a person of Indian domicile who wishes to make a remittance to the United Kingdom for the maintenance his family residing in the United Kingdom. The petitioner thereafter carried on correspondence with the Assistant Controller of Exchange of the Reserve Bank of India in Calcutta, and took up the stand that he was a British national and was not domiciled in India. He mentioned that he had no intention of residing in India permanently or otherwise. On or about the 21st September, 1962, the Deputy Controller of the Reserve Bank of India replied by stating that the decision already made could not be reconsidered. Thereupon, the petitioner made this application and the Rule was issued. The petitioner in this application has asked for a writ in the nature of mandamus or an appropriate writ, asking the respondent, the Deputy Controller Reserve Bank of India, Exchange Control Department, to cancel or rescind the decision to treat the petitioner as of India domicile, and depriving him of the remittance facilities permissible under paragraph 2(1) of Section XI of the Exchange Control Manual, and further to direct the said respondent to allow remittance facilities in terms of the said paragraph and section of the said Manual.
(3.) The Foreign Exchange Regulation Act, (Act VIII of 1947) is an Act to regulate certain payments, dealings in foreign exchange and securities and import and export of currency and bullion. It is permissible to look into the objects and reasons for passing the Act, in order to discover the background and the evils which it was intended to remedy. It is stated in the objects and reasons that a system of exchange control was set up in India on the outbreak of the Second World War, in September, 1939, for the purpose of conserving and directing to the best uses, the limited supplies of foreign exchange available. Upon the termination of the War, it was found that the shortage of foreign exchange was likely to continue in view of the disruption of the internal economy of so many nations, and the interruption of the established channels of trade. Legislation was, therefore, necessary to give the Central Government powers to continue to control all transactions in foreign exchange, securities etc. The original Act was a temporary one but it has been found that India continued to be short of foreign exchange and it was difficult to visualize that in any foreseeable future it would be possible to dispense with the Exchange Control altogether. Various Five Years Plans have made it necessary to husband and utilize all our external resources, and consequently for these various reasons the Foreign Exchange Regulation Act (hereinafter referred to as the "said Act") has been placed on a permanent footing. Section 4 of the said Act, imposes restrictions in dealing with foreign exchange. It provides that except with the previous general or special permission of the Reserve Bank no person other than an authorised dealer shall deal in foreign exchange. Section 5 of the said Act puts restrictions on payments. It inter alia provides that no person in India shall make any payment to any person resident outside India, save as may be provided in, and in accordance with, any general or special exemption granted conditionally or unconditionally by the Reserve Bank. This is a very sweeping restriction and it is interesting to recall the words of Lord Goddard, C.J. in Pickett v. Fesq. (1949 2 All England LR 707, dealing with the corresponding provisions of the English Act, being Exchange Control Act, 1947: - "It may not generally be known how rigid and far-reaching are the provisions of the Exchange Control Act, 1947. It has been pointed out by high authority that if a person plays a game of cards in this country with a person who does not live in one of the scheduled territories - as for instance, an American - and at the end of the game he hands in five shillings which he has lost to him, he is really committing an offence. I do not suppose that in these circumstances anybody would say that a serious offence has been committed or that there would be likely to be a prosecution but the Act is wide enough to cover such a case." ;