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Jatish Chandra Ghosh Vs. B.K. Sinha - Court Judgment

LegalCrystal Citation
SubjectCivil;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1040 of 1950
Judge
Reported inAIR1951Cal404,55CWN104
ActsWest Bengal Security Act, 1950 - Sections 21 and 38
AppellantJatish Chandra Ghosh
RespondentB.K. Sinha
Appellant AdvocateM.M. Sen and ;Robin Mitra, Advs.
Respondent AdvocateChandra Sekhar Sen, Sr. Govt. Pleader and ;Smriti Kumar Ray Chaudhuri, Adv.
Cases ReferredKhagendra Nath De v. Dist Mag of West Dinajpur
Excerpt:
- .....himself with & correspond in writing with any person who is known or believed to be a member of unlawful association. if he receives any written communication from any such person he shall deliver it to the officer-in-charge of ghatal p. s.'2. the petnr is a medical practitioner. he states that he has been practising in medicine for over 30 years, in the sub-division of ghatal, in the district of midnapore. he says that his practice takes him out of the limit of the ghatal town, and in fact he is the founder of a free charitable out-door dispensary in chandrakona thana, which is about 15 miles away from his residence in ghatal town & that he attends the dispensary twice every week as consulting physician. the complaint is that the superintendent of police of the district of midnapore.....
Judgment:
ORDER

Sinha, J.

1. That the said person shall reside at his home in Ghatal Town P. S. Ghatan, Dt. Midnapore.

2. That he shall not leave the jurisdiction beyond two miles of Ghatal Municipal area P. S. Ghatal, Dist. Midnapore without obtaining previous permission in writing of the Superintendent of Police, Midnapore.

3. That he shall report himself daily to the Officer-in-Charge of Ghatal P. S.

4. That he shall not directly or indirectly organise, promote or take part in any public meeting, demonstration or procession and

5. That he shall not associate himself with & correspond in writing with any person who is known or believed to be a member of unlawful association. If he receives any written communication from any such person he shall deliver it to the officer-in-charge of Ghatal P. S.'

2. The petnr is a medical practitioner. He states that he has been practising in medicine for over 30 years, in the Sub-Division of Ghatal, in the district of Midnapore. He says that his practice takes him out of the limit of the Ghatal Town, and in fact he is the founder of a free charitable out-door dispensary in Chandrakona Thana, which is about 15 miles away from his residence in Ghatal Town & that he attends the dispensary twice every week as consulting Physician. The complaint is that the Superintendent of Police of the district of Midnapore lives about 52 miles away & it was impossible to obtain written permission in each & every case when a call was received & also it was impossible for him to visit the charitable dispensary. It is argued that the restriction is against public interest & was unreasonable & was an invasion of the petnr's fundamental rights to practice his profession. The order complained of is under the West Bengal Security Act, 1950, and has been passed under Clauses (b), (c) & (d) of Sub-section 1 of Section 21 of the West Bengal Security Act, 1950.

3. It is argued that the Act imposes unreasonable restrictions on the fundamental rights of a citizen & is therefore bad & in any event the restrictions imposed by the order are unreasonable restrictions. It is further argued that the order has been passed by the District Mag of Midnapore but does not profess to be in the name of the Governor as is required under Article 166 of the Constitution. As regards Article 166 of the Constitution, it is argued by the learned Govt Pleader that the order recites the notfn under which the Governor had delegated his authority to the District Mag & therefore it is a sufficient compliance with Article 166.

4. I do not think it is necessary for me to decide these points, inasmuch as the order is clearly bad on two grounds which have been held to be sufficient in a decision of a division bench of this Ct, 'Khagendra Nath De v. Dist Mag of West Dinajpur', : AIR1951Cal3 . It has there been held that the power of delegation contained in Section 38 of the Act was 'ultra vires', inasmuch as the power may be delegated to an officer of the lowest rank who may be wholly unfitted to exercise the powers so delegated. It has further been held that the order, should contain a statement as to what the subversive act was, & a mere recital that a man was doing a subversive act was not enough. The present order complained of, purports on the fact of it, to have been passed under authority delegated by Section 38 of the Act, & it merely contains a statement that the person was doing a subversive act without any particulars thereof. The order is, therefore, clearly bad & cannot be supported.

5. Apart from these grounds, I must record that the learned Govt Pleader has not supported para 5 of the order. Under that para, the petnr was prohibited from associating or corresponding with any person 'Who is known or believed to be a member of unlawful association'. There is no indication as to who such persons are or who was to know or believe them to be members of an unlawful association, nor what exactly was meant by the expression 'Unlawful association'. Such an order could not possibly be complied with & was clearly not an order contemplated by the Act.

6. There will therefore be an order that the Dist Mag. of Midnapore do refrain from giving effect to the order dated 24-6-1950, as set out in para 7 of the petition.

7. The rule is made absolute. Resp to pay costs of this appln assessed at three Gold Mohurs.


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