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Fazal Azim Vs. the State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1975CriLJ900
AppellantFazal Azim
RespondentThe State of Uttar Pradesh and ors.
Excerpt:
- .....pakistan. the central government delegated its power under chapter ii of the order of 1962 to the state government vide notification, dated 31st december, 1964. when the power was delegated. chapter ii of the order of 1962 did not apply to a pakistani national. it was made applicable only after the amendment .introduced on 6th september, 1965 and since there was no subsequent delegation in favour of the state government, the order passed by the civil authority appointed by the state government was incompetent and invalid.3. the notification, dated 31-12-1964 delegating certain functions to some of the states, including uttar pradesh, is as under:in exercise of the powers conferred by clause (1) of article 258 of the constitution and of all other powers enabling him in this behalf, the.....
Judgment:

K.N. Seth, J.

1. The petitioner, who claims to be an Indian citizen, has challenged the validity of the order of the Civil Authority (the Superintendent of Police, Saharanpur) dated 6-1-1972 directing that the petitioner be confined in the District Jail, Saharanpur. It appears from the orders of Sri R. S. Gupta, Magistrate 1st Class, Saharanpur and that of Sri Chandra Prakash, Civil and Sessions Judge, passed in Criminal Appeal No. 327 of 1970, that the Central Government has already decided the question of nationality of the petitioner. He has been declared to have acquired the nationality of Pakistan after 1950. In fact on that very basis he had been prosecuted earlier: The petitioner was deported on 19-4-1965 but some how managed to re-enter India. He was again arrested and alter a trial an order for his deportation was passed and he was actually deported outside India on 23-7-1967. The petitioner again managed to come back to India and he was arrested on 16-2-1968. After his arrest he was prosecuted under Section 3/6 of the Passports Act read with Section 3/14 of the Foreigners Act. The learned Magistrate by his order referred to above held the petitioner guilty of contravening the provisions of Section 3 of the Foreigners Act and convicted him under Section 14 of the said Act and sentenced him to rigorous imprisonment for six months, IJis appeal was dismissed by an order, dated 19-8-1972. The petitioner filed a revision in this Court which was similarly dismissed. When the period of the sentence awarded to the petitioner was to expire, the Civil Authority passed an order under Section 5 of the Foreigners (Internment) Order, 1962, (hereinafter referred to as the Order of 1962), which has been challenged before us.

2. The only question urged by the learned Counsel was that before the amendment of Section 3 of the Order of 1962, in September 1965, it was not .applicable to a national of Pakistan. The Central Government delegated its power under Chapter II of the Order of 1962 to the State Government vide notification, dated 31st December, 1964. When the power was delegated. Chapter II of the Order of 1962 did not apply to a Pakistani national. It was made applicable only after the amendment .introduced on 6th September, 1965 and since there was no subsequent delegation in favour of the State Government, the order passed by the Civil Authority appointed by the State Government was incompetent and invalid.

3. The Notification, dated 31-12-1964 delegating certain functions to some of the States, including Uttar Pradesh, is as under:

In exercise of the powers conferred by Clause (1) of Article 258 of the Constitution and of all other powers enabling him in this behalf, the President with the consent of the State Government concerned, hereby entrusts to the Government of each of the States of Andhra Pradesh, Assam, Bihar, Jammu and Kashmir, Kerala, Gujarat, Maharashtra, Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh,. West Bengal and Nagaland, the functions of the Central Government under Clause (gi of subsection (2) of Section 3, and Sub-sections (1) and (41 of Section 4 of the Foreigners Act, 1946 (31 of 1946), subject to the following conditions, namely:

(a) That the functions so entrusted shall be exercised in respect of persons to whom Chapte.r II of the Foreigners (Internment) Order, 1962, applies;

(b) that in the exercise of such functions the said State Government shall comply with such general or special directions as the Central Government may, from time to time, issue; and

(c) that, notwithstanding this entrust-ment, the Central Government may itself exercise any of the said functions, should it deem fit to do so in any case.

4. It may be noted that under the Notification all the functions of the Central Government under Clause (g) of subsection (2) of Section 3 and Sub-sections (1) and (4) of Section 4 of the Foreigners Act, 1946, were entrusted to the States l mentioned therein. It further provides that the functions so entrusted shall be exercised in respect of persons to whom Chapter II of the Order of 1962 applies. With regard to the exercise of the powers by the delegate, no condition or limitation has been imposed. When Section 3 of the Order of 1962, was amended in 1965, no fresh power was conferred on the Central Government, Section 3 of the Order of 1962 is not concerned with the power of the Central Government, The relevant power and functions of the Central Government are contained in various provisions of the Foreigners Act which did not undergo any, amendment. The power to arrest and detain or confine contained in Clause (g) of Sub-section (2) of Section 3, which was delegated to the State Government, was not widened so as to include any other power with respect to persons to whom Chapter II of the Order of 1962 was applicable. What the amendment sought to do was to widen -the scope of Section 3 so as to include a national of Pakistan and not to enlarge the power or function of the Central Government. In that view of the matter there could be no question of any further delegation of the power of the Central Government since no additional power was conferred under the amendment. In. such a. situation we are of the opinion that any further delegation of power, to the State Government was not at all necessary.

5. Even if it be assumed that the amendment introduced in Section 3 of the order of 1962 amounted to conferment of fresh power, it was not necessary for the Central Government to further delegate that power to the State Government. The original delegation was with regard to all the powers and functions that the Central Government could exercise under the various provisions referred to in the Notification of 31-12-1964. The State Government could exercise the power when a situation arose for the- exercise of that power. The notification indicates that the delegation was of a general nature and all the powers exercisable by the Central Government were delegated to the State. The intention appears to be that the State Government was authorised to exercise the various powers from time to time whenever an occasion arose for the exercise of those powers. This included within its ambit the power that may be acquired by the Central Government even at a future date. The language of the Notification does not indicate that the intention of the Central Government was to. delegate only those powers which it possessed at that oarticular time. On the other hand, the Intention appears to be that whatever power could be validly exercised by the Central Government gnder the provisions of the relevant statute, the same power, without any limitation, could be exercised by the State Government'also, subiect of course to such general or special directions as the Central Government may. from time to time, issue. If the intention had been to limit the scope of the exercise of that power, such an intention would have been made, clear in the notification in question. In view of this matter also the impugned order passed by the Civil Authority would be valid and could not be successfully challenged.

6. A similar question came up for consideration before this Court in Notifi-fied Ares Committee, Garh Mukteshwar v. Addl. Commr., Meerut, 1973 All LJ 206. In that case the powers of the District Magistrate under the U.P. Town Areas Act, except the power under Section 39-A, were delegated to the Offlcer-in-Charge of the Sub-Division in which the Town Areas were situated, Certain powers were conferred upon the District Magistrate subsequent to the order of delegation and the question arose whether the order of the Sub-Divisional Magistrate, in respect of a matter concerning which the District Magistrate was empowered after the delegation of power, was competent or whether a fresh order of delegation was necessary. The Court ruled that where the delegation was general in nature without any condition or restriction on the exercise of power by the delegatee, it should be deemed to be a delegation of all the powers possessed by the delegating authority from time to time and whenever an occasion arises the delegatee will have all such powers that are in existence at that time.

7. Learned Counesl for the petitioner placed reliance on the case of Shaik Farid v. State of Orissa, 1967 Cri LJ 1423 (Orissa) wherein the power of the State Government after the amendment of the Order of 1962 on 6-9-1965 came up for consideration. It was held that the pr_e-amendment delegation by the Central Government in favour of the State must be limited only to the extent of authority as the Central Government itself had at the point of time when the delegation was made. Subsequent enlargement of the Central Government's powers could not be said to automatically devolve on the State Government and that a subsequent delegation was necessary before the State Government could exercise that, power. With respect we are unable to subscribe to that view for reasons set out earlier.

8. The question of the nationality of the petitioner has been finally settled by the Central Government by the order, dated 15-1-1965. It has declared that the petitioner voluntarily acquired the citizenship of Pakistan and ceased to be a citizen of India. The declaration by the Central Government is final and cannot be questioned.

9. The petition has no merits and is accordingly dismissed.


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