Arvind Sharma vs State of Madhya Pradesh and Others

Sheel Nagu, J.—This petition under Article 226 of the Constitution of India assails the order of externment dated 11.07.2012 (Annexure P/1), by which the Additional District Magistrate, Gwalior exercising the powers u/s 3 r/w Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (for brevity "Adhiniyam of 1990") has externed the petitioner from District of Gwalior and its adjoining Districts, i.e., Bhind, Morena, Shivpuri and Datia for a period of one year with further challenge to the appellate order of the Commissioner, Revenue Division, Gwalior dated 30.10.2012 (Annexure P/2). Learned counsel for the parties are finally heard and the matter is decided with the consent of both the parties at the motion stage.

The solitary contention raised by the petitioner is that the impugned order of externment has been passed by the Additional District Magistrate, who is incompetent u/s 3 r/w Section 5 of the Adhiniyam of 1990. Learned counsel for petitioner contends that the power provided under Sections 3 and 5 of the Adhiniyam of 1990 is exclusively vested in the District Magistrate. It is his further contention that the said power cannot be delegated to any subordinate authority even with the aid of Section 29 of the Adhiniyam of 1990, which merely empowers the State Government to delegate to any subordinate authority not below the rank of District Magistrate, but does not empower the State Government or the District Magistrate to delegate the power of externment u/s 3 r/w Section 5 of the Adhiniyam of 1990 to an Additional District Magistrate who is subordinate in rank to a District Magistrate. The Single Bench decision in the case of Ratichand Vs. State of M.P., has been pressed into service in support of this proposition.

Per contra, the counsel for State is unable to point out any provision under the Adhiniyam of 1990 which empowers the Additional District Magistrate to exercise the powers of externment provided u/s 3 r/w Section 5 of the Adhiniyam of 1990. The counsel is further unable to contend that the decision in the case of Ratichand (supra) does not hold the field any more.

A perusal of the return submitted by the respondents no. 1 to 4 reveals that this seminal point of lack of jurisdiction in the Additional District Magistrate has not been responded to while the decision in the case of Amanulla Khan Kudeatalla Khan Pathan Vs. State of Gujarat and Others, has been pressed into service to contend that even a singular criminal case is good enough to support an order of externment.

Since this Court is deciding the instant case merely on the ground of jurisdictional error without going into the merits of the order impugned, the above said citation relied upon by the learned counsel for State is of no avail.

On a close scrutiny of Section 3 r/w S. 5 of the Adhiniyam of 1990 elicits that the District Magistrate alone is empowered to act thereunder with no further power of delegating the said authority to any subordinate officer. Even the State Government u/s 29 is empowered to delegate those powers which are vested in the State Government and not those powers, which are vested in the District Magistrate. Therefore, this Court has no hesitation to hold that the Additional District Magistrate had no power whatsoever under the Adhiniyam of 1990 to invoke the provisions of Section 3 r/w 5 of the Adhiniyam of 1990 to issue the impugned order of externment.

In view of the above conspectus of facts and legal position, this Court without entering into the merits of the reasons behind the impugned order of the externment, is inclined to set aside the impugned order of externment solely on the ground of being bereft of having been passed by an incompetent authority. i.e., Additional District Magistrate, Gwalior. The decision of this Court in the case of Ratichand (supra) squarely applies to the issue involved herein.

Consequently, this writ petition stands allowed in the following terms:-

The impugned order of externment Annexure P/1 dated 11.07.2012 passed by the Additional District Magistrate, Gwalior is quashed;

The appellate order Annexure P/1 dated 30.10.2012 passed by the Commissioner, Gwalior Division, Gwalior is also quashed;

Since the impugned order of externment has been passed in blatant disregard of the mandatory provisions of the Adhiniyam of 1990 by an incompetent authority, this Court directs for payment of cost of this litigation to the petitioner to the tune of Rs. 5,000/-, which shall be paid by the State Government to the petitioner with liberty to recover from the erring officer, within a period of one month from the date of passing of this order.