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High Court Of Madhya Pradesh
A. H. Khan and Newaskar, JJ.
STATE - Appellant
Versus
GANGADHAR - Respondents
Criminal Appeal 7 Of 1953
Decided On : 12/31/1956
MADHYA BHARAT MAINTENANCE OF PUBLIC ORDER ACT - SECTION 7 (1) - DELEGATION OF POWERS - REASONABLENESS - CONSTITUTIONALITY - ARTICLE 19 (B) AND (D) - VALIDITY OF ORDER ISSUED BY SUBA AS DISTRICT MAGISTRATE - INTERPRETATION OF STATUTORY PROVISIONS - SCOPE OF JUDICIAL REVIEW.
Fact of the Case:
Accused were prosecuted for contravening an order issued by the Suba (Collector) of Gird Gwalior under Section 7 (1) of the Madhya Bharat Maintenance of Public Order Act, 1949, prohibiting processions in a specified area. The order was challenged on the grounds of improper delegation of powers, invalidity of the order as it was addressed to the general public, and the ultra vires nature of Section 11 of the Act, which allowed for such delegation.
Finding of the Court:
The court held that the order was not invalid merely because it was issued by the Suba as District Magistrate instead of as Suba, as the essential thing was the factual existence of power to act and not the official designation. However, the court found that Section 11 of the Act, which allowed for the delegation of powers under Section 7 (1), was ultra vires as it permitted unreasonable restrictions on the fundamental rights guaranteed under Article 19 (b) and (d) of the Constitution by allowing for the delegation of powers to inappropriate authorities.
Issues: 1. Whether the order issued by the Suba as District Magistrate was invalid due to improper delegation of powers. 2. Whether the order was invalid as it was addressed to the general public. 3. Whether Section 11 of the Madhya Bharat Maintenance of Public Order Act, 1949, was ultra vires the Constitution.
Ratio Decidendi: 1. The court held that the order was not invalid merely because it was issued by the Suba as District Magistrate instead of as Suba, as the essential thing was the factual existence of power to act and not the official designation. The court relied on the Supreme Court decisions in Dattatraya v. State of Bombay and P. Joseph John v. State of Travancore-Cochin, which held that an erroneous mention of the official designation does not render the act of the authority concerned invalid. 2. The court held that the order was not invalid as it was addressed to the general public, as the provisions of Section 7 (1) of the Act were essentially different from those of Section 144 of the Criminal Procedure Code and allowed for orders to be issued to the general public visiting any particular locality. 3. The court held that Section 11 of the Madhya Bharat Maintenance of Public Order Act, 1949, was ultra vires the Constitution as it permitted unreasonable restrictions on the fundamental rights guaranteed under Article 19 (b) and (d) of the Constitution by allowing for the delegation of powers to inappropriate authorities. The court relied on the Supreme Court decision in State of Madras v. V. G. Row, which held that the reasonableness of restrictions imposed by legislation must be considered in light of the nature of the right alleged to have been infringed, the underlying purpose of the restrictions, and the extent and urgency of the evil sought to be remedied.
Final Decision: The court dismissed the appeal against the acquittal of the accused, holding that the order contravened was invalid due to the ultra vires nature of Section 11 of the Madhya Bharat Maintenance of Public Order Act, 1949.
( 1 ) ACCUSED Gangadhar Sakharam Dandawate and 20 others prosecuted under section 7 (2) of the Madhya Bharat Maintenance of Public Order Act (7 of 1949), by Police Indraganj, Lashkar, for contravention of the order dated 20-10-1052 assued by T. S. Powar, District Magistrate, District Gird Gwalior, under Section 7 (1) of the said Act as also under Section 143 of the Indian Penal Code before the additional District Magistrate Lashkar who found them hot guilty and acquitted them.
( 2 ) THIS appeal is preferred against the said order of acquittal.
( 3 ) FACTS material for the present appeal are as follows : On 30th April 1949 the government of Mahya Bharat purporting to exercise its powers under Section 11 of the Madhya Bharat Maintenance of Public Order Act (7 of 1949) delegated all its powers, exercisable by it, under the Act barring the powers those imposing collective fines under Section 6 and under Section 10, to the respective Subas (Collectors) of the District.
( 4 ) IN pursuance of the powers thus conferred Mr. T. S. Powar who was then the suba of District Gird Gwalior issued a Notification Ex. P/1 on 20-10-1952 under section 7 (1) of the Act prohibiting inter alia taking out of any procession in any area within Phulbag-com-pound as described in the order without his written permission to that effect. The order was said to be operative from 8 A. M. of 2110-1952 to 8 P. M. of 21-11-1952. The order bore the signature of Mr. T. S. Powar and his official designation was mentioned to be District Magistrate Gird Gwalior. ( 5 ) WHILE this order was said to be in force on 22-10-1952 at 3 P. M. , a profession was take out with slogans of political character through the prohibited area. The processionists were more than five in number and the accused Gangadhar dandawate and 20 others who are being prosecuted were among them. The avowed object of the processionists was to defy the ban imposed by the said authority. They were therefore prosucuted as aforesaid both under Section 7 (2) of the Madhya Bharat Maintenance of Public Order Act and under Section 143 I. P. C.
( 6 ) THE accused challenged the validity of Section 11 of the Act and the due exercise of power delegated to the Suba under the Act including due promulgation of the order under Section 7 (1 ).
( 7 ) THE learned Additional District Magistrate on recording evidence found that the order in question was duly notified with the aid of loud-speakers as also by its publication in the local news papers and that the accused had full knowledge of the same and that they were actuated by a motive to defy the ban taking advantage of the grave situation created in the city due to shortage of food materials. He however held that the impugned order was issued by Mr. T. S. Powar not as Suba but as District Magistrate, District Gird Gwalior and as such was defective at its inception. It was further found that the order in question was meant to apply not to any particular individual association of individuals, institution or organisation but to general public. The order thus issued as against general public was invalid being outside the purview of Section 7 (1) of the said Act. He therefore purely on the latter two grounds held the impugned order to be invalid. Its contravention was on these grounds, according to him, not an offence. He therefore acquitted the accused,
( 8 ) BEFORE the learned Magistrate one more question was raised on behalf of the accused. This was that Section 11 of the Madhya Bharat Maintenance of Public order Act (7 of 1949), became ultra vires after 26-1-1950 when the Constitution came into force by reason of Article 13 of the Constitution. Reliance in this connection was placed upon the decision of Calcutta High Court reported in khagendro Nath De v. District Magistrate Dinajpur, AIR 1951 Cal 3 (A) and State v. Motilal, 1953 Madh-B LJ 607: (AIR 1952 Madh-B 114) (B ). It was therefore contended that the said Act and particularly Section 7 of the said Act w
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