MOMIN KHAN Vs. THE SUPERINTENDENT OF POLICE AND ANR.

JUDGEMENT

(1.) THIS rule arises out of an application under Article 266 of the Constitution filed on behalf of one Momin Knan challenging the validity of the notice issued under Section 3(2)(c) of the Foreigners Act by the Superintendent of Police and Registration Officer, Kamrup on the September 1962. By this notice he has been asked to leave India within fifteen days of receipt of the notice.

(2.) IT is not disputed that the Petitioner is an Afgan national. He is thus a foreigner as defined under the Act. The notice under Section 3 thus could be issued against him. His contention is that the Petitioner entered India on a passport from the Afgan Government. When the period for which he could' stay under the visa granted to him expired, he applied for permit to stay in India for a further period under the provisions of the Foreigners Order, 1948. The Registration Officer, Kamrup District on and April 1962 granted him a permit extending his period of stay in India till 18th December 1962. Another document which is annexed to the petition is a notice given by the Superintendent of Police, Kamrup dated the 8th September 1962 by which the Petitioner's movements have been restricted within the Gauhati town.

(3.) MR . Choudhuri now contends that in view of the trend of the decisions in the various High Courts, he does not seriously contend the broad proposition that there is no power of delegation given to the Central Government or to the State Government. He however contends that oven if the power existed there is no proof of the fact that such a power was delegated to the Superintendent of Police, Kamrup. He further contends that it there was any notification, it was for the State Government to file such notification and in the absence of any notification before this Court, this' Court will not hold that the delegation was in fact made. He contends that the connected papers should be summoned in order to find out whether there is any such notification. We ton that in paragraphs 7 and 8 of the petition there is no specific allegation that there was no notification delegating the power to the Superintendent of Police by the State Government. In paragraphs 7 and 8 the only contention is that in law there was no power in the Central Government or the State Government to' make any such delegation. That has been conceded In the absence of a clear averment in the petition challenging the factum of delegation, it cannot be assumed that no such notification exists and this Court will not ask the Respondents to prove the existence of such a notification. We do not think that there is any force in this contention and in this view of the matter it is not necessary to deal in detail with the two cases cited by the Petitioner, namely (1) Dawood Ali Arif v. Deputy Commissioner of Police reported in : AIR 1958 Cal 565 and (2) State v. Ibrahim Nabiji reported in : AIR 1959 Bom 525.