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ALLAHABAD HIGH COURT
K. N. SETH, H. L. CAPOOR, JJ.
FAZAL AZIM
VERSUS
THE STATE OF UTTAR PRADESH AND OTHERS
Criminal Misc. Habeas Corpus Petn. No. 137 of 1974,
Decided On : 10 -1 -1974
FOREIGNERS ACT - DELEGATION OF POWERS - AMENDMENT OF ORDER - SCOPE - DELEGATION OF POWERS TO STATE GOVERNMENT - VALIDITY - FOREIGNERS (INTERNMENT) ORDER, 1962, SECTION 3 - FOREIGNERS ACT, 1946, SECTION 3(2)(G), 4(1), 4(4).
Fact of the Case:
The petitioner, an alleged Indian citizen, challenged the validity of an order directing his confinement in jail under the Foreigners (Internment) Order, 1962. The Central Government had previously determined that the petitioner had acquired Pakistani nationality after 1950, leading to his deportation and subsequent re-entry into India. The petitioner argued that the order was invalid because it was passed after an amendment to Section 3 of the Order in 1965, which made it applicable to Pakistani nationals, and there was no subsequent delegation of power to the State Government.
Finding of the Court:
The court held that the delegation of power to the State Government in 1964 was general in nature and included all powers exercisable by the Central Government under the relevant provisions of the Foreigners Act, including any powers acquired in the future. The amendment to Section 3 of the Order in 1965 did not confer any new powers on the Central Government but merely expanded the scope of the Order to include Pakistani nationals. Therefore, no further delegation of power was necessary, and the impugned order passed by the Civil Authority was valid.
Issues: 1. Whether the delegation of power to the State Government in 1964 was limited to the powers possessed by the Central Government at that time or included powers acquired in the future. 2. Whether the amendment to Section 3 of the Foreigners (Internment) Order, 1962, in 1965, which made it applicable to Pakistani nationals, required a fresh delegation of power to the State Government.
Ratio Decidendi: 1. The delegation of power to the State Government in 1964 was general in nature and included all powers exercisable by the Central Government under the relevant provisions of the Foreigners Act, including any powers acquired in the future. 2. The amendment to Section 3 of the Order in 1965 did not confer any new powers on the Central Government but merely expanded the scope of the Order to include Pakistani nationals. Therefore, no further delegation of power was necessary.
Final Decision: The petition was dismissed.
K. N. Seth, J.:- 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 after a trail an order for his deportation was passed 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. His 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 tile 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 (g) of Sub-Section (2) of Section 3, and Sub-Sections (1) and (4) 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 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 entrustment, 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 Sub-Section (2) of Section 3 and Sub-Sections (1) and (4) of Section 4 of the Foreigners Act, 1946, were entrusted to the States mentioned therein. It further provides
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