Waseem Khan v. The State of Maharashtra

( 2 )

Heard Shri Amit A. Mukhedkar, Advocate for the petitioner and A.P.P. Mrs. Khekale for the respondents.

By this writ petition, the petitioner challenges his externment from Aurangabad and Jalna districts. The order of externment is passed under Section 56 (1) (a) & (b) of the Bombay Police Act, 1951, by the Dy. Commissioner of Police, Aurangabad, on 31.12.2008, the copy of which is at Exh. P-1. Being aggrieved thereby, appeal was preferred to the State Government. It was heard by the Principal Secretary (A & S) and by order dated 16.05.2009 he dismissed the revision.

Adv. Shri Mukhedkar pointed out that all those offences alleged to have been committed which resulted in the decision of externment were committed within limits of Mukumdwadi Police Station at Aurangabad. It is not stated that any crime was committed at Jalna or within Jalna district. So, it is argued that there is no justification for externment of the petitioner from Jalna district and at ( 3 ) the most the externment could have been restricted to Aurangabad district for a period of two years.

Adv. Shri Mukhedkar relied upon Division Bench ruling in case of Umar Mohammed Malbari V/s. K.P. Gaikwad & Another, 1988 (2) Bom.C.R.724. The following observations are made by the Division Bench in para 7 and 8 :- “7. In our judgment, there is considerable merit in the contention of Shri Mohite and the same will have to be accepted. If the activities indulged in by the petitioner were restricted within the Taluka of Bhiwandi within the Thane Commissionerate, the order of externing the petitioner out of the Raigad and Nasik Districts which has within them Taluka places at a distance of more than 100 miles will undoubtedly be an excessive order and an excessive order has necessarily to be struck down because no greater restraint on personal liberty can be permitted within than is reasonable in the circumstances of the case. In the case of (Balu Shivling Dombe V/s. The Divisional Magistrate) 1, reported in 71 Bom.L.R. At page 79 which case was cited with approval in the case of (Pandharinath Shridhar Rangnekar V/s. Dy. Commissioner of Police) 2, reported in A.I.R. 1973 S.C. Page 630, on the facts of that case the 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 were far widely removed from the locality in which the externee had committed his illegal acts. The ( 4 ) exercise of the power was, therefore, arbitrary and excessive, the order having been passed without reference to the purpose of the externment was quashed.

8. ................... 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/s. Labour Appellate Tribunal) 3, LIV Bom.L.R. At Page 513.”

Same law is also followed by Single Bench of this Court subsequently in Silva @ Gora Silva Ayanar Arjun V/s. Nawal Bajaj & Anr., 2007 (1) Bom.C.R. (Cri) 331 and Gunwanta Gajanan Khandekar V/s. Sub-Divisional Magistrate & Ors., 2008 (1) Bom.C.R. (Cri) 329. In view of clear proposition of law ( 5 ) laid down and since there is no justification for extending externment order to Jalna district, in my opinion, the order of externment is excessive and liable to be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. It is also held by the Division Bench ruling mentioned above that High Court has no power to correct an excessive order passed by the authority concerned in its jurisdiction under Article 226 of the Constitution of India.

In this view of the matter, this writ petition is allowed and the orders of externment passed by the Dy. Commissioner of Police, Aurangabad, by his order dated

31.12.2008, as confirmed in appeal by the Principal Secretary (A & S), Home Department, Government of Maharashtra, are hereby quashed and set aside.

Rule is made absolute accordingly. snk/2009/DEC09/crwp472.09

[P.R. BORKAR,J.]