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Shaik Farid Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1967CriLJ1423
AppellantShaik Farid
RespondentState of Orissa
Cases ReferredKaraikal Castings and Rolling Mills v. Government of Pondicherry
Excerpt:
.....of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 11. the question is :can the state government exercise the newly extended power of the central government on the strength of the pre-amendment delegation in favour of the state by notification dated december 31, 1964? in other words, the point is whether or not the pre-amendment delegation by the central govern-merit in favour of the state entrusted to the orissa state government the authority only to the extent which the central government itself bad at the point of time when the delegation was made. this certainly amounted to curbing of the personal liberty of an individual, namely to intern, which the central government bad no power under the foreigners (internment) order, 1962 dated 3rd november 1962. this newly..........of india, ministry of home affairs, no. 1/45/63-1-i ntt. dated the 31st december, 1964 the state government do hereby direct that shekh farid, pakistani national, shall be arrested and detained in puri jail.by the order of the governorsd. v. natarajan secretary to government.5. the foreigners act, 1946 (central act 31 of of 1946) was enacted to confer upon the central government certain powers in respect of foreigners as it was thought expedient to provide for the exercise by the central government of the said powers in respect of the entry of foreigners into india, their presence therein and their departure therefrom. the provisions of the foreigners act so far as material for the present purpose are set out as follows:3. (1) the central government may by order make provision,.....
Judgment:

S. Barman, J.

1. The point involved in this case is regarding the legality of an order dated April 13, 1966 passed by the Government of Orissa, Home Department, for arrest and detention in Puri Jail of the petitioner Shaik Farid, a Pakistani national, purported to be under Sections 3 and 4(1) of the Foreigners Act, 1946 (81 of 1946) read with the notification of delegation by the Govern, ment of India, Ministry of Home Affairs, No, 1/45/63 1.1 Ntt. dated the 31st December, 1964. The material facts and the circumstances in which the legality of the Orissa State Govern, ment order is challenged before this Court are as hereinafter stated.

2. The petitioner is a permanent resident of Village Kodalia, P.S. Mulahat, District Khulna in East Pakistan and is a Pakistani national. He is stated to have migrated to India in the year 1955 and since then has been living in Orissa at Village Soran, P.S. Tangi, District Puri.

3. On January 6, 1966 the petitioner was arrested under an order made by the Orisaa Government purported to be under paragraph 5 of Chap. II of the Foreigners (Internment) Order, 1962, as amended by the Foreigners (Internment) (Amendment) Order, 1965 and was sent to Delhi camp on January 18, 1966.

4. Ultimately on April 13, 1968 the Government of Orisaa in purported exercise of powers conferred by Section 3(2)(g) read with Section 4(1) of the Foreigners Act, 1946 issued a notification direct, ing arrest and detention of the petitioner in Puri Jail, It is the legality of this order dated April 13, 1966 passed by the Government of Orissa which is being challenged before this Court. The said order is quoted as follows:

GOVERNMENT OF ORISSA

HOME DEPARTMENT

No. 9088/PPT

Dated Bhubaneswar, 18th April, 1966.

ORDER

In exercise of the powers conferred by Section 8 and Sub-section (1) of Section 4 of the Foreigners Act, 1946 (31 of 1946) read with the notification of Government of India, Ministry of Home Affairs, No. 1/45/63-1-I Ntt. dated the 31st December, 1964 the State Government do hereby direct that Shekh Farid, Pakistani national, shall be arrested and detained in Puri Jail.

By the order of the Governor

Sd. V. Natarajan

Secretary to Government.

5. The Foreigners Act, 1946 (Central Act 31 of of 1946) was enacted to confer upon the Central Government certain powers in respect of foreigners as it was thought expedient to provide for the exercise by the Central Government of the said powers in respect of the entry of foreigners into India, their presence therein and their departure therefrom. The provisions of the Foreigners Act so far as material for the present purpose are set out as follows:

3. (1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.

(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner-

* * * * *

(g) shall be attested and detained or confined;

4 (1) Any foreigner (hereinafter referred to as an internee) in respect of whom there is in force any order made under Clause (g) of Sub-section (2) of Section 3, directing that he be detained or confined, shall be detained or confined in such place and manner and subject to such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline as the Central Government may from time to time by order determine.

(4) The Central Government may, by order, provide for regulating access to, and the conduct of persons in, places in India where internees or parsons on parole are detained or restricted, as the case may be, despatch or conveyance from outside such places to or for internees or persons on parole therein of such articles as may be prescribed.

6. It is thus initially the sole responsibility of the Central Government to deal with the matters relating to foreigners covered by the Foreigners Act. The Constitution made provision for delegation of this sole power of the Central Government in favour of the States in that Article 258(1) of the Constitution provided that notwithstanding anything in the Constitution, the President may, with the consent of the State Government concerned, entrust either conditionally or unconditionally to that Government or to its officers the functions in relation to any matter to which the executive power of the Union extends. It was under this provision in the Constitution that certain States were entrusted with the powers of the Central Government by virtue of delegation made by the Central Government in favour of those particular States as hereinafter stated.

7. On November 3, 1962 the Central Government in exercise of the powers conferred by Sections 3, 4 and 8 of the Foreigners Act, 1946 read with Foreigners Law (application and Amendment) Ordinance, 1962 made the Foreigners (Internment) Order, 1962. Paragraph 3 of Chapter II of the Said Foreigners (Internment Order is this:

CHAPTER II.

Internment of certain persons

3. Application of Chapter.-This chapter shall app. to and in relation to any foreigner who is, and at person not of Indian origin who was at birth, a citizen or subject of any country at war with, or commission aggression against, India or of any other or(sic) assisting the country at War with or committing (sic) aggression against India.

The implication of the Foreigners. (In(sic) ment) Order, 1962 is that it was applicable t(sic) persons covered by the said Order and not applicable to any person other than those covered thereby. Apparently, the underlying policy of the said Internment Order was that the Central Government was empowered to intern any Foreigner and any person not of Indian origin at birth being a citizen or subject of any country at war with, or committing external aggression against India or of any country assisting the enemy country at war with or committing such aggression against India. In other words, in making internment of foreigners, authorities were to consider whether or not the foreign country in question of which a particular person was a citizen or Subject was in inimical relationship with India.

8. It was in this state of the law relating to persona to whom alone Chapter II of the Foreigners (Internment) Order, 1962 was applicable that the Central Government by notification dated December 31, 1964 entrusted certain functions to some particular States, including Orissa, subject to certain conditions as stated in the notification. The said notification by which the functions of the Central Government were entrusted to, among other States, the State of Orissa is quoted as follows:

F. No. 1/45/68.1-Intt.

GOVERNMENT OF INDIA

MINISTRY OF HOME AFFAIRS

NEW DELHI 11, the 31st December, 1964

10th Pausa, 1886.

NOTIFICATION.

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, Maharastra, Madhya Pradesh, Madras Mysote, Orissa. Punjab, Rajasthan, Uttar Pradesh, West Bengal and Nagaland, the functions of the Central Government under Clause (g) of Sub-section (2) of Section 3, and Sub-sections (1) and (4) of Section 4 of the Foreigners Act, 1946 (81 of 1946), subject to the following conditions, namely:

(a) That the functions so entrusted shall be exercised in respect of parsons to whom Chapter 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 entruatment, the Central Government may itself exercise any of the said functions should it deem fit to do so in any case.

Sd. (Fateh Singh)

JOINT SECRETARY TO THE GOVT. OF INDIA

9. It is clear from condition (a) in the notification that the delegation by which the State of Orissa was entrusted with the functions of the Central Government under Section 3(2)(g) namely to arrest, detain or confine a foreigner, was limited in respect of only persons to whom Chapter II of the Foreigners (Internment) Order 1962 applies. The word 'applies' is not without significance; it means only such persons to whom the 1962 foreigners (Internment) Order applies as on the date of the notification : it does not say that it will apply to such other persons as the Central Government may, from time to time, direct, thus the category of persons-in respect of whom only the delegation was made by the Central Government in favour of the State Government entrusting it with the power to arrest, detain or confine a foreigner-was limited to only such foreigners who were either citizens or subjects of any country at war with or committing external aggression against India or of any other country assisting the country at war with or committing such aggression against India. The delegation was express : and the conditions including the condition in respect of which persona to the functions so entrusted shall be exercised, were specifically mentioned in the delegation itself. Thus, by necessary implication, the category of persons in respect of whom the functions- including the power to arrest, detain or confine a foreigner-so entrusted could be exercised by the State Government could not be extended to any other person not covered by Chapter II of the Foreigners (Internment) Order, 1962 as it then was on the date of the said limited delegation- December 31, 1964.

10. Then what followed after the said limited delegation by the Central Government in favour of the State Government was that on September 6, 1965 the Central Government made an amendment of the Foreigners (Internment) Order, 1962. The amendment dated September 6, 1965 was in these terms:

G. S. R. 1301.-In exercise of the powers conferred by Sections 8, 4 and 8 of the Foreigners Act, 1946 (81 of 1946), read with the Foreigners taw (Application and Amendment) Act, 1962 (42 of 1963), the Central Government hereby makes the following order further to amend the Foreigners (Internment) Order, 1962, namely:

1. (1) This order may be called the Foreigners (Internment) (Amendment) Order, 1985.

(2) It shall come into force at once.

2. In the Foreigners (Internment) Order, 1962, in paragraph 3, for the words 'in relation to any foreigner', the words 'in relation to any national of Pakistan and to any other foreigner' shall be substituted.

(No. 1/61/65-F. III)

Fateh Singh, Jt. Secy.

The effect of this amendment is that Chap. II of the Foreigners (Internment) Order, 1963 would apply to any Pakistani national irrespective of whether or not Pakistan is at war with or committing aggression against India. In other words, under this amendment the Central Government can now intern any Pakistani national regardless of the position whether or not Pakistan is at war with, or committing external aggression against India. This is undoubtedly an extension of the powers of the Central Government in respect of persons whom the Central Government can now intern under the amendment : undoubtedly it is a new power, effective from September 6, 1965 to intern any national of Pakistan, with which the Government has been empowered under the said amendment.

11. The question is : Can the State Government exercise the newly extended power of the Central Government on the strength of the pre-amendment delegation in favour of the State by notification dated December 31, 1964? In other words, the point is whether or not the pre-amendment delegation by the Central Govern-merit in favour of the State entrusted to the Orissa State Government the authority only to the extent which the Central Government itself bad at the point of time when the delegation was made. It is fundamental that all delegated powers must be strictly construed when delegation is made; it must be confined or limited only to the specific powers delegated and not beyond.

12. In the present case, under the delegation dated December 31, 1964 the State Government has no power in respect of any person not covered by the Foreigners (Internment) Order. 1962 as it was before the amendment of 1965. Under the delegation made by the Central Government by the notification of December 31,1964 the Orissa State Government cannot be said to have acquired the new power of the Central Government which it acquired by virtue of the subsequent amendment in 1965 by which the power of the Central Government, namely to intern certain persons, was extended to all Pakistani nationals irrespective of whether or not Pakistan was at war with India, or whether or not Pakistan was assisting any country at war with or committing external aggression against India.

13. The learned Counsel Mr. D. P. Kar, who appeared for the petitioner as amicus curiae as desired by this Court, ably argued the case and rendered material assistance to the Court. In support of the view discussed above the learned Counsel cited a Division Bench decision of the Bombay High Court where a similar question of the effect of pre-amendment delegation of power under a particular Defence of India Rule (Subsequently amended) was considered. In the Bombay case the material facts were these:

On the 19th December 1941, the powers of the Government of Bombay under Rule 26 were delegated to all District Magistrates by the Government of Bombay and by virtue of that order of delegation the District Magistrate acting under E. 26 (1) had passed an order of detention against the accused persons. On the 15th August 1942. B. 25 (5B) had been amended so as to include a provision for an order being issued against a person whose detention had already been ordered to present himself before some named person on penalty of seven years rigorous imprisonment for breach of the order. It is to be noted that at the time of the delegation of the powers of the Government to District Magistrates under Rule 26, Rule 25 (5B), did not stand in the present form; it included no rule in terms giving powers to order any person to appear before a named person and still lees did it include any penalty for the breach of such an order. It was held that the delegation of its powers under a particular Rule by the Provincial Government cannot be deemed to cover the delegation of such powers as might thereafter be brought into existence for the first time by amendment of the Rule; accordingly when the Provincial Government delegated its powers under Rule 26 to all District Magistrates in 1941, and as Rule 26 (5B) (b), was added by subsequent amendment in 1942, the District Magistrates would have no power to pass orders under Rule 26 (5B) (b). In the judgment their Lordships of the Bombay High Court expressed the view to the effect that the delegation could not be deemed to cover the delegation of such power as might hereafter be brought into existence for the first time by re-enactment of the rules. Emperor v. Bavangoud : Lingangouda AIR 1944 Bom 259.

14. The learned Government Advocate appearing for the State however submitted that the notification of delegation dated 31st December 1964 should be treated to be a part of the Foreigners Act itself; and that no fresh delegation was necessary after the amendment made to the Foreigners (Internment) Order dated 6th September 1965. In support of this contention he relied on certain decisions which in our opinion are not applicable to the present case. In one case which went upto the Supreme Court it wag held that a notification under the U. P. Sales-tax Act having been made in accordance with the power conferred by the statute has statutory force and validity and therefore the exemption under the notification is as if it is. contained in the parent Act itself.

Then in one Madras case under the Essential Commodities Act, 1955 which was extended to Pondicherry by a notification under Section 2(a) of the Foreign Jurisdiction Act no order had been passed under the Act extending in terms-the provisions of the Non Ferrous Metal Control Order, 1958 issued under Section 3 of the Act. It was held that the orders under the Essential Supplies Act got the same force as the Act itself and formed part of the Act, it would be unnecessary to require separate notification under the Foreign Jurisdiction Act every time such orders were promulgated or issued by the Central Government under the powers conferred upon it under Essential Supplies Commodities Act of 1955 : Kailash Nath v. State of U.P. : AIR1957SC790 ; Karaikal Castings and Rolling Mills v. Government of Pondicherry : AIR1965Mad453 .

15. In our opinion, the contest, in which the cases relied on by the learned Government Advocate were decided, is different from that in the present case. Here, the personal right of an individual is involved; the limited power of internment vested in the Central Government was by the amendment order of 6th September 1965, extended to all Pakistani nationals whether or not he was a citizen or subject of a, country at war with ot committing external aggression against India or of any other country assisting the country at war with or committing aggression against India. This certainly amounted to curbing of the personal liberty of an individual, namely to intern, which the Central Government bad no power under the Foreigners (Internment) Order, 1962 dated 3rd November 1962.

This newly extended power cannot by necessary implication be treated to have automatically devolved from the Central Government -upon the State Government by virtue of mere subsequent amendment of the Internment Order of 6th September 1965. Such subsequently extended power must be expressly delegated to the State Government in order that the State Govern-ment might lawfully exercise it for internment of any national of Pakistan. The present case therefore is a clearly distinguishable from the cases relied on by the learned Government Advocate on behalf of the State.

16. It was lastly submitted on behalf of the State to the effect that in any event the petitioner being the subject of a country committing external aggression against India, Chapter II of the Foreigners (Internment) Order, 1962 as issued on 3rd November 1962 by the Ministry of Home Affairs, Government of India is applicable to him; that this Court may take judicial notice of Pakistan's external aggression against India. la support of this argument an additional counter affidavit was tiled on behalf of the State in which it was, inter alia, stated that the petitioner Shaik Farid is a Foreigner who is the citizen and a subject of Pakistan which has committed external aggression against India since 1947; the Government of India has lodged a complaint with the U. N. O. in respect of the aggression of Pakistan over Kashmir.

17. In the view that we have taken, strictly on the legality of the impugned order of the State Government dated 13th April 1966, the statements made in the Additional counter affidavit, filed on behalf of the State of Orissa in support of the point for the Courts taking judicial notice of the same, do not appear to be relevant. Therefore, we express no opinion on the legal effect of the matters mentioned in the State's additional counter affidavit, which factually are of somewhat controversial nature, particularly in the eye of International Law. That apart, these ace matters outside the scope of the application before us.

18. In the ultimate analysis of the position discussed above, the order dated 13th April 1966 of the Government of Orissa, Home Department is quashed as illegal. This criminal miscellaneous case is accordingly allowed.

Ahmed C.J.

19. I agree.


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