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2010 DIGILAW 482 (MP)

Rati chand v. State of M. P.

2010-04-27

SANJAY YADAV

body2010
ORDER 1. Heard on admission. 2. Sole question which ropes up for consideration in the present petition under Article 226 of the Constitution of India filed at the instance of petitioner who suffered an externment order dated 26.6.2009 passed by the Additional District Magistrate, Chhindwara under section 5 of Madhya Pradesh Rajya Sukaksha, Adhiniyam, 1990 affirmed by the appellate authority by its order dated 26.8.2009 is as to whether the Additional Magistrate was within its power to have exercised jurisdiction under section 5 of the Adhiniyam 1990, which otherwise is conferred on the District Magistrate. 3. The facts giving rise to the core issue briefly, are that the petitioner was proceeded against under the provisions of Adhiniyam, 1990 when the Additional District Magistrate, Chhindwara on the basis of the requisition by Superintendent of Police Chhindwara caused a show cause notice to the petitioner under section 8 (1) of the Adhiniyam, 1990. The said show cause notice was issued by Additional District Magistrate in purported exercise of its power under section 5. The proceedings so initiated resulted in the order dated 26.6.2009, whereby the petitioner was externed from Revenue District Chhindwara and the adjacent district of Seoni, Narsinghpur, Hoshangabad, Betul for a period of one year. The petitioner being aggrieved of the said order preferred an appeal, before the Commissioner under section 9 of Adhiniyam, 1990 on the ground that though innocent, the action taken against the petitioner was on the basis of old and stale cases and the cases which were reported to be the cause resulted in acquittal and that the petitioner has been falsely implicated. 4. Being aggrieved the petitioner is before this Court. Though many a grounds have been raised by the petitioner regarding the correctness of the impugned order; however, the main issue which crops up for consideration is as to whether it was within the power of Additional District Magistrate to have exercised the power under section 5 of the Adhiniyam, 1990. 5. On 7.10.2010 while issuing notices to respondents the respondents were called upon to seek instructions as to whether the Additional District Magistrate, Chhindwara was empowered to take proceedings for externment of the petitioner under the Adhiniyam 1990. 5. On 7.10.2010 while issuing notices to respondents the respondents were called upon to seek instructions as to whether the Additional District Magistrate, Chhindwara was empowered to take proceedings for externment of the petitioner under the Adhiniyam 1990. In response whereof, the respondents have filed their return wherein it is contended that the Sub-Divisional Magistrate was exercising the power on the basis of work distribution effected by Collector, Chhindwara and since there was a proper delegation of power to the Additional District Magistrate, Chhindwara, it was within his right to proceed as per the provisions of Adhiniyam, 1990. 6. To appreciate the submission put-forth by the respective counsel regarding the delegation of power, worth it would be to note few provisions as contained under Adhiniyam, 1990. 7. Section 3 of Adhiniyam provides for that if a District Magistrate is satisfied with respect to any person that he is acting or is likely to be act in a manner prejudicial to the security of the State or the maintenance of public order and that, in order to prevent him from so acting it is necessary in the interest of general public to make a restriction order imposing the conditions stipulated therein. 8. Section 5 empowers the District Magistrate to pass orders regarding removal of persons about to commit offence. Whereas, section 6 empowers the District Magistrate for removal of person convicted of certain offences. 9. However, before taking recourse of these powers the District Magistrate has to cause a hearing as is contemplated under section 8 of the Adhiniyam, 1990. None of these provisions empower the Collector to delegate his power to any other authority. In other words the District Magistrate has to exercise the powers so conferred by the Statue himself and not to delegate the same. It is section 13 and section 29 which provides for delegation of power. Section 13 stipulates: 13. None of these provisions empower the Collector to delegate his power to any other authority. In other words the District Magistrate has to exercise the powers so conferred by the Statue himself and not to delegate the same. It is section 13 and section 29 which provides for delegation of power. Section 13 stipulates: 13. Power of externment of State Government -- (1) The State Government or the officer specially empowered by the State Government in that behalf, may in like circumstances and in like manner, exercise the powers exercisable in a district by the District Magistrate under sections 3, 4, 5 or 6 with this modification that it shall be lawful for the State Government or the officer specially empowered to direct the members of such gang or body, or persons or immigrants, or persons convicted as the case may be, to remove themselves from and not to enter or return or any district or districts or parts thereof. (2) The provisions of sections 7, 8, 10, 11 and 12 and of section 9 where the order is passed by the officer specially empowered by the State Government under Sub-section (1) shall mutatis mutandis apply to the exercise of any powers under this section as they apply to the exercise of any powers under sections 3, 4, 5 or 6. (3) Where the order is passed by the State Government under subsection (1), the State Government may, either on its own motion or on an application of the person aggrieved, review any order passed by itself and pass such order in reference thereto as it thinks tit : Provided that no order shall be varied or reversed unless notice has been given to the person concerned to appear and be heard in support of such order." Section 29 provides for: 29. Delegation of powers and duties of State Government -- The State Government may by order, direct that any power or duty which is conferred or imposed on the State Government by this Act except the power of imposing collective fines under section 21 and of training rules under section 30, shall under such conditions, if any, as may be specified in that direction be exercised or discharged by any officer subordinate to it, not below the rank of a District Magistrate." 10. Close reading of both the provisions thus make it clear that though it is within the power of State Government and State Government alone, to delegate the power as contemplated under section 13, such delegation of power cannot be in favour of a person who is below the rank of a District Magistrate; meaning thereby, even if there is exercise of the delegated powers by the Stale Government the delegation of same cannot be to an officer below the rank of a District Magistrate. 11. In view of above since the Adhiniyam, 1990 does not confer power on District Magistrate to delegate the power, the distribution memo (annexure R-1), whereby the Additional District Magistrate has been conferred with the power to take action under sections 3, 4, 5 and 6 of Adhiniyam, 1990 is a nullity in the eyes of law. The exercise of power by the Additional District Magistrate on the basis of distribution memo is void and have no sanction of law. 12. In view of above analysis this Court is of considered opinion that exercise of power of Additional District Magistrate Chhindwara in Adhiniyam, 1990 being without any sanction of law is a nullity in the eyes of law. 13. In view of this the order dated 26.6.2009 is quashed; consequently the order dated 26.8.2009 also crumbles. 14. The petition is allowed to the extent above. However, no costs.