Mukesh S/O. Dattatraya Mankar vs Divisional Commissioner

 V.K. JADHAV, J

Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties. Â

By this writ petition, the petitioner is challenging the order dated 21.5.2018 passed by the Divisional Commissioner, Nashik Division, Nashik in

externment appeal No. 38 of 2018 thereby confirming the order dated 17.3.2018 passed by the Sub Divisional Magistrate, Pathardi in Externment case

No. 1 of 2018. Â

Learned counsel appearing for the petitioner submits that the externment proceeding has been initiated against the petitioner is on account of

political pressure, as there is no tangible evidence on record to initiate such proceedings. The externment notice issued by the Sub Divisional Police

Officer mentions the offences registered with Shevgaon police Station only, whereas the petitioner has been externed from Ahmednagar, Beed and

Aurangabad districts. The authority concerned has not considered the aspect that the petitioner is already acquitted in two offences bearing Crime

No.II-24 of 2014 and 68 of 2015. The notice of externment does not disclose the ingredients and particulars of Section 56(1) (a) (b) of the

Maharashtra Police Act, 1951. Though the petitioner has filed reply to the notice issued by respondent No.3, the said authority has not considered the

reply submitted by the petitioner. Learned counsel submits that the petition deserves to be allowed.

On the other hand, learned A.P.P. for the respondents submits that the the offences registered against the petitioner are serious in nature.Â

Learned A.P.P. relying upon the show cause notice and the reasons recorded in the order of externment passed by the Sub Divisional Magistrate,

Pathardi submits that the externment order is in conformity with the material placed on record and also within fore corners of the provisions of

Sections 56 and 59 of the Bombay Police Act 1951, therefore, this court may not interfere in the impugned order.

We have heard learned counsel appearing for the petitioner and learned A.P.P. for the respondents. With their able assistance, we have perused

the pleadings in the petition and annexures thereto. We have also perused the original record made available by the learned A.P.P. for perusal of this

court, show cause notice and order impugned in this petition. Since the Petition is confined only to the ground that, the externment order is excessive,

inasmuch as the petitioner's alleged prejudicial activities are in the show-cause notice confined to Shevgaon Taluka in Ahmednagar district, however,

the petitioner is externed from three districts, we are confining our adjudication to the aforesaid ground alone.

Upon careful reading of the original record, show-cause notice and also the impugned order, so far alleged prejudicial activities of the petitioner are

concerned, same are described in Shevgaon area at Ahmednagar district, there is no discussion or subjective satisfaction disclosed in the impugned

order, why the externment of the petitioner from Beed and Aurangabad districts is necessary. Upon careful reading of the show-cause notice and also

the impugned order, it appears that, the offences registered against the petitioner are at Shevgaon Police Station located at Ahmednagar district.

Therefore, it is crystal clear that, the Sub-Divisional Magistrate, Pathardi and the Divisional Commissioner, Nashik Division, Nashik have not assigned

any reasons or recorded the subjective satisfaction about the externment of the petitioner from Beed and Aurangabad districts.

The point raised in this Petition is no longer res integra and covered by the exposition of this Court in the case of Nisar @ Nigro Bashir Ahmed

Khan V/s Dy. Commissioner of Police & ors reported in 2013(3) Bom.C.R.(Cri.) 566. The paragraph nos. 9 to 11 of the said judgment read as under

:-

“9. The point raised by the learned Counsel for the Petitioner that the externment order is excessive, in as much as, the alleged activities against

the Petitioner, which are alleged in the show cause notice are confined to the jurisdiction of the Shivaji Nagar Police Station and within the area of

Greater Bombay, therefore, externment of the Petitioner from aforesaid other three Districts is excessive, is no more res integra and is covered by the

authoritative pronouncements of the Hon'ble Supreme Court as well as by this Court. The Hon'ble Supreme Court in the case of (Pandharinath

Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra), reported in 1973 Mh.L.J. 413, in Paragraph 16, held as under :

An excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the

circumstances of the case. The decision of the Bombay High Court in (Balu Shivling Dombe v. The Divisional Magistrate, Pandharpur) 1969 Mh.L.J.

387 is an instance in point where an externment order was set aside on the ground that it was far wider than was justified by the exigencies of the

case. The activities of the externee therein were confined to the city of Pandharpur and yet the externment order covered an area as extensive as the

districts of Sholapur, Satara and Poona. These areas are far widely removed from the locality in which the externee had committed but two

supposedly illegal acts. The exercise of the power was, therefore, arbitrary and excessive, the order having been passed without reference to the

purpose of the externment.

This Court had also occasion to consider the same point involved in this Petition in the case of Balu Vs. The Divisional Magistrate, Pandharpur,

reported in 1969 Mh.L.J. 387, while appreciating the facts involved in that case, this Court held that extending the area of externment not only outside

Pandharpur Taluka but to the Districts of Solapur, Pune and Satara is illegal since the alleged activities against the Petitioner therein, as stated in the

show cause notice, were confined to the Pandharpur City. In the case of Punjaji Dagdu Gaikwad Vs. State of Maharashtra and Ors., reported in

2001(Supp.2) Bom.C.R. 611(N.B.): 2001 (3) Mh.L.J. 926, in the facts of that case, this Court held that the Petitioner's area of activities is confined to

Buldhana District, but the Petitioner is externed from Buldhana District as well as Districts of Akola, Washim, Jalna, Parbhani and Jalgaon. Order

suffered from vice of excessive externment from five Districts in respect of which no data was placed and the entire externment order was in the

circumstances liable to be quashed. Yet in another exposition of this Court, in the case of Ganpat @ Ganesh Tanaji Katare Vs. Assistant

Commissioner of Police and Ors., reported in 2006 (1) Bom.C.R. (Cri.) 44, in the facts of that case, this Court held that the alleged activities of the

Petitioner therein are restricted to particular District. Therefore, an externemnt order of the respective Petitioners from other District except Greater

Bombay and adjoining Districts of Thane is excessive.

In the background of aforesaid discussion and upon perusal of facts of this case, when the crimes registered against the Petitioner are confined to

Shivaji Nagar Police Station within the limits of Greater Bombay, by impugned order, the Petitioner is externed from Greater Bombay, New Bombay,

Thane and Raigad Districts for two years.â€​

Once this Court has reached to the conclusion that, the externment order is excessive, same deserves to be quashed in its entirety.

At this stage, learned Additional Public Prosecutor, however, contended that the entire order of externment was not liable to be struck down merely

because it covered areas which were excessive than what was justified. In the case of Umar Mohamed Malbari Vs. K.P. Gaikwad, Dy.

Commissioner of Police and anr. (1988 Mh.L.J. 1034), while considering the similar argument advanced by the learned Additional Public Prosecutor,

the Division Bench of this Court in para 8 held thus :-

“8. Shri. Khothari, the learned Public Prosecutor however, contended that the entire order of externment was not liable to be struck down merely

because it covered areas which were excessive than what was justified. This would be a case where appropriate areas of externment can be

substituted with the areas contemplated in the impugned order of externment. In our judgment, there is no merit in the aforesaid contention of Shri.

Kothari. The High Court, when it issues the high prerogative writ of certiorari, it directs the judicial Tribunal against which it is acting to transmit its

record to the Court and if necessary to quash the order which the Tribunal has passed. It must not be forgotten that in issuing the writ this Court is not

acting as a Court of appeal. It is exercising supervisory powers conferred upon it, and those powers are exercised by means of issuing high

prerogative writs. But the power and jurisdiction of the Court is limited and the same cannot extend to the powers of an Appellate Court. This Court is

only concerned with the question as to whether the Tribunal exercising judicial or quasi judicial functions has or has not acted without jurisdiction or

whether in the exercise of jurisdiction it has acted in excess of jurisdiction. If it has acted in excess of jurisdiction, then the jurisdiction of this Court is

to quash the order passed in excess of jurisdiction. There the power of the High Court stops. It has no power to go further and to correct an excessive

order passed by the authority concerned. Mohamed Usman V. Labour Appellate Tribunal, LIV Bom.L.R. at page 513â€​.

In the light of discussion in foregoing paragraphs, we pass the following order :-

(i) The order dated 21.05.2018 passed by Respondent No.1 the Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No. 38 of

2018 and the order dated 17.3.2018 passed by the respondent No.2 Sub Divisional Magistrate, Pathardi in Externment Case No. 1 of 2018 are hereby

quashed and set aside.

(ii) Writ petition is disposed of. Rule is, accordingly, made absolute in the above terms.Â

(iii) Registry to issue authenticated copy of this judgment to the requesting party. Â