Additional District Magistrate Can Order Externment Under MP Rajya Suraksha Adhiniyam: SC [Read Judgment]
“Constitution Bench Judgment of this Court in Ajaib Singh (supra) was not applicable in the facts of the present case and High Court committed the error in relying on the said judgment for holding that Additional District Magistrate had no jurisdiction.”
The Supreme Court has held that an Additional District Magistrate can pass an Externment order when there is no provision in the statue prohibiting passing of an order by an officer lower than the rank of District Magistrate.
In State of Madhya Pradesh vs. Dharmendra Rathore, the Madhya Pradesh High Court had set aside an externment order passed by the Additional District Magistrate on the ground that he had no jurisdiction to pass the order under the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990, and such an order could be passed only by District Magistrate. The High court had apparently relied on the Constitution Bench judgment of the Supreme Court in Ajaib Singh vs. Gurbachan Singh which had held that the detention order could not have been passed by any authority lower than the rank of District Magistrate.
In fact, in the case of Ajaib Singh the Supreme Court considered the provisions of Defence of India Act, 1962 and Defence of India Rules, which contained a different statutory scheme. The said scheme stipulated that detention order can be passed by the authority empowered by the rules to apprehend or detain with restriction that the authority empowered to detain not being lower in rank than that of a District Magistrate. It was in that background, the court held that Additional District Magistrate being not the District Magistrate was incompetent to pass the impugned order.
The bench comprising Justice Ashok Bhushan and Justice KM Joseph noticed this distinction and also the fact that the State Government, in the present case, had issued a notification delating the power of the District Magistrate to the Additional District Magistrate. It observed: "It is clear that in the Statutory Scheme of the Adhiniyam, 1990, there is no provision, which prohibit passing an order by an officer lower than the rank of District Magistrate rather under Section 13, there is no limitation on the State Government while specially empowering an officer of the State to exercise the power of District Magistrate under Sections 3, 4, 5 and 6 and further under Section 18, the powers and duties of District Magistrate can be directed to be exercised or performed by Additional District Magistrate or Sub -Divisional Magistrate for such areas as may be specified in the order. Thus, the Scheme of the Adhiniyam, 1990 clearly contemplate exercise of the power of District Magistrate under Sections 3, 4, 5 and 6 by an Additional District Magistrate or Sub -Divisional Magistrate."
The court said that Ajaib Singh judgment was not applicable in the facts of the present case and that the High Court committed the error in relying on the said judgment for holding that Additional District Magistrate had no jurisdiction.