Aniuddin Shamsuddin Solanki v. Superintendent Of Police And Others

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2. The present petition challenges the order of externment passed by the Respondent no.2 dated 31/7/2020, externing the petitioner from Yavatmal District for a period of two years on the ground that the same violates the principles of natural justice, as no reasonable opportunity of being heard was granted nor the documents sought for, supplied.

3. Mrs. Kalyani Deshpande, the learned Additional Public Prosecutor for the respondents/State opposes the same and contends that the petitioner had been given ample opportunity, as the adjournment sought by the petitioner and his counsel on 23/7/2020 was granted and the matter was posted on 30/7/2020. However, as on the said adjourned date, neither the petitioner nor his counsel turned up, the Authority had no other choice than to, adjourn it to the next date and to pass the impugned order on the adjourned date, externing the petitioner.

4. The fact position can be summarized as under :

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5. It is not in dispute, that a general lock down on account of Covid 19, virus was declared in the entire Taluk of Pandharkawda for the duration of 25/7/2020 to 31/7/2020. The proceedings were

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being held in the town of Pandharkawda, which falls in Yavatmal District. Due to the general lockdown which was in effect, neither the petitioner nor his counsel were able to attend the office of the respondent no.2, nor were in a position to send in an application for adjournment, as a result of which the respondent no.2, recording the absence of the petitioner and his counsel on 30/7/2020, posted the matter to 31/7/2020. The imposition of the General Lockdown in itself ought to have prompted the respondent no.2, on his own, to adjourn the matter on 30/7/2020 to some other date beyond the lock down period. The respondent no.2, however instead of doing so, proceeded ahead to pass the impugned order immediately on 31/7/2020 itself. This clearly spells out a complete lack of opportunity in the matter.

6. The requirement of a pre-decisional hearing in all matters which lead to the restriction put up on the movement or liberty of an individual, is a sine qua non and is in-built in the inherent principles of natural justice, even though the statute in this regard may not say so. In the present matter the requirement of informing the petitioner in writing of the general nature of the

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material allegations against him and giving him a reasonable opportunity of tendering an explanation regarding them, is specifically mandated by the provisions of section 59 (1) of the Maharashtra Police Act 1951. It is needless to say that such a opportunity, would be rendered ineffective and illusory, if the documents on which the order of externment is to be passed, so far as they are permissible in law, are not made available to the person, against whom such an order has to be passed, as perusal of the material on which the order of externment is proposed to be made, would naturally be necessary for formulating an effective defence, in the reply to be submitted, as would be spelt out from the language used in Section 59 of the Maharashtra Police Act 1951. Section 59 of the Maharashtra Police Act 1951, in fact goes a step further and also mandates that if an application for examination of any witness is produced by the person against whom the order of externment is proposed to be passed, the Authority or Officer concerned shall grant such application and examine such witness, unless for reasons to be recorded in writing, the Authority or officer is of the opinion that such application has been made for vexatious purposes or to occasion delay. The provision also contemplates the putting in of a

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written statement by the person against whom an order of externment is proposed to be passed. It is thus apparent that the principles of natural justice and of a reasonable opportunity of being heard are specifically built in and mandated in the provisions of Section 59 of the Maharashtra Police Act 1951, which as already observed have been violated in the matter.

7. The matter is also hit by the maxim impossibilium nulla obligatio est, meaning that the law does not expect a party to do the impossible [Chandra Kishore Jha / Mahavir Prasad, (1999)8SCC 266 and M.P. / Narmada Bachao Andolan, (2100)7 SCC 639]. In the instant matter due to the Covid-19 lockdown, all movement was brought to a halt, at the pain of violation of the law and imposition of prosecution, penalty and in case even a sentence. This is reflected by Regulation 11 of the Maharashtra Covid-19 Regulations 2020, which were published in the official Gazettee on 16/3/2020, which read as under :

"11. Any person/Institution/Organisation found violating any provision of these Regulations shall be

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deemed to have committed an offence punishable under section 188 of Indian Penal Code (45 of 1860). Empowered officers may penalise any person/Institution/Organisation found violating provisions of these Regulations or any further orders issued by Government under these regulations."

Section 188 of I.P.C. provides for simple imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or both in case of disobedience of order duly promulgated by a Public Servant if such disobedience causes or tends to cause danger to human life, health or safety.

8. That being so, the petitioner and his counsel could not have been expected to have broken the lockdown and attended the office of the respondent no.2 for the hearing on 30/7/2020. The respondent no.2, in fact being an officer empowered to enforce the law, ought not to have created a situation, to cause its violation.

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9. Even otherwise, the application for supply of documents as filed by the petitioner, was also not decided either on 30/7/2020, nor thereafter on 31/7/2020, as the impugned order does not reflect so, which application /request ought to have been considered and decided. Nothing prevented the respondent no.2, to have adjourned the matter by a reasonable period.

10. In Pandharinath Shridhar Rangnekar v. Commr. of Police, (1973) 1 SCC 372 the Hon'ble Apex Court while considering the provisions of Sections 56 and 59 of the Bombay Police Act, 1951, held as under :

"10. It is true that the provisions of Section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society. This Court in Gurbachan Singh v. State of Bombay [1952 SCR 737 : AIR 1952 SC 221 : 1952 SCJ 279] had upheld the validity of Section 27(1) of the City of Bombay Police Act, 1902, which corresponds to Section 56 of the Act. Following that decision, the challenge to the constitutionality of Section 56 was repelled

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in Bhagubhai v. Dulldbhabhai Bhandari v. District Magistrate, Thana. We will only add that care must be taken to ensure that the terms of Sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee. "

(emphasis supplied)

11. The hon'ble Apex Court in the case of Nawabkhan Abbaskhan v. State Of Gujarat ., (1974) 2 SCC 121 while considering Section 56 of the Bombay Police Act, 1951, has held as under :

"14. Where hearing is obligated by a statute which affects the fundamental right of a citizen, the duty to give the hearing sounds in constitutional requirement and failure to comply with such a duty is fatal. Maybe that in ordinary legislation or at common law a tribunal, having jurisdiction and failing to hear the parties, may commit an illegality which may render the proceedings voidable when a direct attack is made thereon by way of appeal, revision or review, but nullity is the consequence of unconstitutionality and so without going into the larger issue and its plural divisions, we may roundly conclude that the

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order of an administrative authority charged with the duty of complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void and ab initio of no legal efficacy. The duty to hear manacles his jurisdictional exercise and any act is, in its inception, void except when performed in accordance with the conditions laid down in regard to hearing. Maybe, this is a radical approach, but the alternative is a traversty of constitutional guarantees, which leads to the conclusion of post- legitimated disobedience of initially unconstitutional orders. On the other hand law and order will be in jeopardy if the doctrine of discretion to disobey invalid orders were to prevail."

(emphasis supplied)

12. The position that the mandate of Section 59 of the Maharashtra Police Act, 1951 (earlier Bombay Police Act, 1951), has to be strictly followed and any violation thereof would vitiate the entire matter, is thus clear and explicit, from the above two judgments.

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13. Considering the factual position, in light of the language of Section 59 of the Maharashtra Police Act 1951, and the law as laid down by the hon'ble Apex Court in Nawabkhan Abbaskhan and Pandharinath Shridhar Rangnekar it is clearly apparent, that the impugned order of externment passed by the respondent no.2, suffers from an abject violation of the mandate of Section 59 of the Maharashtra Police Act 1951. When admittedly there was a shut down in the entire Pandharkawda district on account of COVID-19, from 25/7/2020 till 31/7/2020, it was not expected for the petitioner or his counsel, to attend the office of the respondent no.2, that too on 30/7/2020, by breaking the restrictions placed on account of the general lock down. A lame excuse is being sought to be put forth in the reply, that the counsel for petitioner was residing near a distance of 35 km from Pandharkawda, and could have attended the office of the respondent no.2 on 30/7/20. We are afraid we cannot countenance this argument for the reason that to do so, the counsel for the petitioner, would have been required to have violated the general lock down imposed in the area on account of COVID-19. The learned Additional Public Prosecutor candidly admits that all public & private transportation was shut down on

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account of COVID-19 for the above duration, which being the position the expectation that the counsel for the petitioner could have attended the proceedings on 30/72020, is clearly unreasonable to the extreme.

14. That apart, when an application for providing documents was made on 23/7/20 to the respondent no.2, the same ought to have been decided, either way, by the respondent no.2. It was open for the respondent no.2, to have rejected the application on 23/7/20 itself, for reasons to be recorded in writing. However that was not done. It is correct to say, as contended by learned Senior Counsel, Shri Mardikar, that when an application of the nature of demanding documents is filed in such proceedings, an expeditious decision on such application, is clearly required, so as to save time. The respondent no.2 cannot be permitted to say that the application for supply of documents shall be kept pending without any decision, but the matter should proceed further with the petitioner filing his defence in the matter, which obviously would be hampered and ineffective in absence of availability of documents. It is quite another matter altogether as to what documents would be

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permissible to be supplied and what would not. That however is not the subject matter of the present petition. The arguments in the present petition are based upon the sole ground of violation of the principles of natural justice and the mandate of Section 59 of the Maharashtra Police Act 1951.

15. Considering the factual position as narrated above, we find that the mandate of Section 59 of the Maharashtra Police Act 1951, is clearly violated, in view of which the impugned order cannot be sustained.

16. Mrs. Kalyani Deshpande, the learned Additional Public Prosecutor, at this stage, submits that the matter can be remanded back to the respondent no.2, for a decision afresh, by affording an opportunity to the respondent no.2 of satisfying the requirement of Section 59 of the Maharashtra Police Act 1951. She also submits that there is an alternative remedy available of preferring an appeal under Section 60 of the Act of 1951, which ought to have been availed of by the petitioner and the petition on this count also was not maintainable in law.

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17. This request is opposed by Shri Mardikar, learned Senior counsel for the petitioner contending that once this Court comes to the conclusion that the impugned order is vitiated, it would only be permissible for it to quash the same and the question of remand would not arise. As regards the existence of the remedy of appeal under Section 60 of the Act of 1951, he contends that the same cannot be treated as a bar to the exercise of jurisdiction under Article 226 of the Constitution. He places reliance on Balu Shivling Dombe/ The Divisional magistrate, Pandharpur & ors.1969 Mh. L.J. 387, and Umar Mohammed Malbari -vs-- K.P. Gaikwad 1988(2) BCR 724, as to the scope of Certiorari.

18. The case of Balu Shivling Dombe, (supra) is not of any assistance to the learned senior counsel as it neither deals with the scope and ambit of the Writ of Certiorari nor the case of permissibility of invocation of writ jurisdiction, on availability of an alternative remedy in the Statute.

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19. In the case of Umar Mohammed (supra) the Hon'ble Court was considering a similar matter of externment under the Bombay Police Act, 1951, when it held as under :

"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. Labour Appellate Tribunal, LIV Bom.L.R. at Page 513."

(emphasis supplied)

While considering the plea as to existence of an alternative remedy of appeal, it was held thus :

"9. Shri Kothari, however, submitted that this petition does not call for interference in exercise of

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the jurisdiction under Article 226 of the Constitution inasmuch as the petitioner has not exhausted the remedy of an appeal to the State Government. He further submitted that the present petition suffers from the vice of latches inasmuch as the petitioner has approached this Court about 15 months after the passing of the impugned order. In our judgment, there is no merit in this contention inasmuch as the Rule about the failure to exercise an alternative remedy when one is in existence is a Rule relating to the discretion of the Court and that Rule does not act as a bar to the jurisdiction of the Court to entertain and grant petition. Therefore, the fact that the petitioner has not exhausted all his remedies does not bar the jurisdiction of the Court to entertain and dispose of the petition but, is a factor to be taken into account for the purpose of considering whether the discretion should or should not be exercised in favour of the petitioner. The rule that the High Court will not issue a prerogative writ when an alternative remedy is available does not apply when a petitioner comes to the Court with an allegation that his fundamental rights have been infringed. When an order of externment is passed against the petitioner, he can undoubtedly come to this Court with a writ petition on the ground that his fundamental right of freedom of movement is affected and this he can do without exhausting the other remedy provided for in the act viz. an appeal to the State Government against the order. In view of the fact that the petitioner has been externed out of the areas covering three Districts as also Greater Bombay, it will have to be held that his fundamental right to move freely throughout the territory of India which is guaranteed under Article 19(1)(d) of the Constitution has been infringed. In this view of the matter, the very fact that the petitioner has not exhausted his alternative

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remedy of an appeal or merely because he has come here after undue delay can be no hurdles in the matter of entertaining this petition."

(emphasis supplied)

20. Thus, both the objections, as raised by the learned Additional Public Prosecutor, squarely stand covered, in Umar Mohammed Malbari (supra). Nothing indicating contrary to the above position has been placed before us, so as to enable us to take a contrary view. Therefore, the following order :

O R D E R

The writ petition is allowed and the impugned order dated 31/7/2020, is hereby quashed and set aside. Rule is made absolute accordingly.

(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE J.)

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