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Judgment
Ashutosh J. Shastri, J
The present petition is filed under Article 226 of the Constitution of India, for challenging the legality and validity of the order dated 21.10.2019
passed by respondent no. 1 authority in Externment Appeal No. 130 of 2019.
The brief background of facts is that the present petitioner is an ex-Sarpanch of Village against whom FIR being C.R. No. I-63 of 2018 was lodged
with Wadhwan Police Station for the offences punishable under Sections 392, 186dhwan Police Station for the offences punishable under Sections
392, 186, 332, 504 and 114 of the Indian Penal Code. Keeping these allegations in mind, a show cause notice was served upon the petitioner by
respondent no. 2 on 27.12.2018, as to why, the petitioner should not be externed from the District areas of Surendgranagar, Rajkot, Morbi,
Ahmedabad, Bhavnagar and Botad. The petitioner is residing in Village Nana-Kerala of Wadhwan Taluka and according to the authority, the
petitioner is indulging into illegal activities. This show cause notice has been replied by the petitioner on 07.01.2019 and has submitted that the
petitioner is holding an agricultural land at Village Nana-Kerala and carrying out agricultural operation and not indulging in any illegal activities and the
authorities have wrongly issued the notice. It has also been submitted that on account of political equation, such kind of action has been contemplated
against the petitioner. Hence, the action, which has been sought to be initiated, is not in accordance with law and with mala fide intent. Several such
contentions have been raised before the authorities, which ultimately culminated into externment orders passed against the petitioner, whereby
respondent no.2 after granting appropriate opportunity to the petitioner has passed an order externing the petitioner from several districts as stated
above.
It appears that feeling aggrieved and dissatisfied with the said order passed by respondent no. 2, a statutory appeal under Section 60 of the Gujarat
Police Act has been preferred which is registered as Externment Appeal No. 130 of 2019, in which after hearing the petitioner, an order of
externment is modified to the extent that the same is set aside in-so-far as it relates to Districts of Ahmedabad, Morbi, Rajkot, Botad and Bhavnagar,
whereas, so far as Surendranagar District is concerned, the authorities have chosen not to set aside the said order and hence, qua that portion of the
order, the present petition is filed by invoking extra ordinary jurisdiction of this Court.
Mr.A.B.Gateshaniya, learned advocate for the petitioner, has vehemently contended that this action which has been initiated is politically motivated
since the petitioner is Ex-Sarpanch of the village. The petitioner has been of a good conduct, for which several appreciation certificates have been
issued and is a law abiding citizen, carrying on the agricultural operations in his field. It has been further submitted that on the contrary, looking to the
FIR, there is no material which can connect the petitioner in commission of such crime and, therefore, the orders passed by the authority even in case
of Surendranagar District is harsh, suffers from the vice of non-application of mind and reflects no corroboration or independent material. Learned
advocate has further submitted that looking to the peculiar set of circumstance, even the FIR itself is not maintainable. Hence, the action based upon
it, does not deserve to be implemented. Hence, all these issues having not been gone into appropriately by the appellate authority, the order deserves to
be quashed and set aside. Alternatively, it has been submitted that out of period of 2 years, substantial period is already over and, therefore, at least
qua that period which is left out, the order of externment may be set aside. It has been further submitted that in a similar situation, there are several
cases in which also, the courts have considered and reduced the period of externment and for that purpose, he relied upon the decisions reported in
2009 (0) GLHEL-HC 222594, 2001 (0) GLHEL-HC-207276 and (2002) 4 GCD 3036 and thereby, requested the Court to set aside the impugned
order which has been passed by the appellate authority. No other submissions have been made.
To this submission, Mr.J.K.Shah, learned APP, has vehemently contended that the order passed by the appellate authority is a balanced order and
kept every circumstance in mind and considering this peculiar set of circumstance, even the impugned externment order is modified substantially and,
therefore, it does not warrant any interference. Apart from that, the petitioner being Ex-Sarpanch has, on the contrary, behaved in a head strong
manner. Hence, the learned APP has ultimately requested to dismiss the petition.
Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it appears to this Court
that the petitioner happens to be the Ex-Sarpanch and faced with a serious charges contained in the FIR. It has been noticed from the assertion made
in the FIR that when the Government Officers and the complainant went to check the illegal mining activity of sand, at that point of time the accused
persons including the present petitioner had not only misbehaved but, have committed a serious offence by attacking those Government officers and
for which, FIR is lodged. It has been further found by the authority that since the said FIR is lodged at Vadhwan Police Station and the case is
pending with the competent authority within the territory of District Surendranagar, the appellate authority has after application of mind, modified the
original order of externment and restricted the same qua the Surendrangar District only. It appears from the tenor of the order of the appellate
authority that proper application of mind is reflecting and a reasoned order is passed, after full-fledged opportunity to the petitioner and, therefore, the
order is not possible to be construed as perverse in any form.
Additionally, it further appears that even the appeal has also been submitted late by 114 days and even then, without adopting too technical
approach, the said delay is condoned and the appeal has been heard on merit at length and that being the exercise of discretion by appellate authority,
this Court is not impressed by the submission that any irregularity and/or illegality is committed by the appellate authority.
So far as the contention of the petitioner with regard to other relevant decisions which are pointed out including the decision reported in (2002) 4
GCD 3036 is concerned, having perused the same it appears that in that case, the issue was related to statement of secret witnesses, having not been
supplied and further the externing authority has violated the principles of natural justice by passing a non- speaking order and, therefore, in that
eventuality and in view of peculiar background of fact, the said matter was disposed of. But, comparing the said decision with the present case, it
appears that the order passed by the appellate authority which is under challenge, is passed after full-fledged hearing to the petitioner and after
considering the reply of the petitioner and has passed a balanced order after strong application of mind and such a reasonable exercise of discretion is
not possible to be branded in any form as perverse. Hence, the decisions which have been cited by the petitioner are of no avail to the petitioner.
Apart from that, the Court is also mindful of the contents of the FIR and the manner in which the offence has takenplace and the powers which have
been exercised by the authority, are just and proper. In the absence of any irregularity or perversity, this Court is of the view that this is not a fit case
in which extraordinary jurisdiction deserves to be exercised.
Additionally, the Court is also conscious about the fact that time and again the Apex Court has propounded the scope of exercise of extraordinary
jurisdiction and one of the guiding decision of the Apex Court reported in (2013) 9 SCC 374, is taken taken note of by this Court and considering the
observations contained in Para.6 and 7 of the said decision, this Court is of the view that this is not a fit case in which writ jurisdiction is to be
exercised.
In addition to that, the Court has also taken into consideration that a substantial period is already over and for few months only, in the absence of
any irregularity and/or illegality and/or perversity, this Court is not inclined to exercise the jurisdiction.
As a result of this, the present petition being meritless, the same is dismissed hereby, with no order as to costs. Notice is discharged.