Vinay @ Viny Laxmichand Wadhwani vs State of Gujarat and 1 Another

S.H. Vora, J.—Since common question of law and facts arises in both the matters, the same are being disposed of by this common order. Challenge in the present petitions preferred under Articles 21 and 226 of the Constitution of India is the order of externment dated 25.7.2013 passed by the respondent No. 1 in Externment Appeal No. 92 of 2013 and order dated 20.6.2013 passed by the respondent No. 1 in Externment Appeal No. 93 of 2013 passed u/s 60 of the Bombay Police Act, 1951 (for short "the Act").

Heard the submissions of learned advocates appearing for the petitioners and learned APP Mr. Poojari for the respondent State.

The petitioners challenged the impugned orders on various grounds that the externment orders are passed without application of mind. According to the petitioners, the show cause notice issued to the petitioners is without application of mind, wherein the externing authority has mentioned that the petitioners should be externed from districts of Surat, Surat Rural, Navsari, Bharuch, Valsad and Tapi. No reason has been given in the show cause notice why externment from these districts was proposed when the activities of the petitioners were confined only to the district of Surat. Further, statements of witnesses Nos. 6 to 9 are parrot like statements.

Another contention has been that no reason has been given either in the show cause notice or in the impugned orders of the externing authority or the appellate authority why the petitioners were externed from so many districts mentioned above whereas they are resident of district Surat only. On all such grounds, learned advocate appearing on behalf of the of the petitioner prays to quash the impugned orders.

This argument has substance and it discloses non-application of mind by the appellate authority as well as by the externing authority for externing the petitioners from five districts mentioned aforesaid. When even an externing authority chooses to direct externment from not only the district within which the person against whom the order is passed is seen to be active, but also from contiguous districts, the reason why such externment order should operate even in regard to such contiguous districts should be shown in the notice preceding the order as well as in the order. It must be so, for if a person confined his activities to a particular district there would be no justification, to extern him not only from that district, but from the adjoining district also unless it is shown that circumstances warrant such a course. If there is such lacuna in the show cause notice as well as in the impugned order, it is not for the court to fill up lacuna in the material noticed by the externing authority by assuming that there must be some reason for externing from contiguous district also. That must be indicated by the externing authority. For this full bench decision in Sandhi Mamad Kala Vs. State of Gujarat, and Saiyad Husain Saiyad Umar Vs. State of Gujarat and Another, can be referred.

Per contra, learned APP Mr. Poojari submits that the competent authorities have passed the impugned orders after considering all the relevant materials and statement of witnesses so as to demonstrate that there is likelihood of breach of peace in the area and therefore, the learned APP supported the impugned orders and urged to dismiss the petition.

The externing authority u/s 56 of the Bombay Police Act has power to remove or extern a person not only from the district within which the externing authority has jurisdiction, but also from the districts contiguous to his own district. The criteria for passing such an order is provided for in Section 56 and there must be some indication in the order itself of the existence of circumstances which would lead to the satisfaction of the authority that it was necessary not only to extern a person from his own district but also from the contiguous district. Such circumstances must be qua every area or region from which a person is directed to be externed and there must be some material or indication of such material in the order. The case of Vrajlal Mohanlal v. District Magistrate, Rajkot and another, reported in 3 G.L.R. 807 can be referred on the point. In view of the foregoing reasons, the petitions are allowed. The order of externment dated 25.7.2013 passed by the respondent No. 1 in Externment Appeal No. 92 of 2013 and order dated 20.6.2013 passed by the respondent No. 1 in Externment Appeal No. 93 of 2013 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.