ASHRAFMIYA SAIDUMIYA v. STATE — 1962 DIGILAW 17 (GUJ)

N. M. MIABHOY, J. ( 1 ) THIS is a petition under Article 226 of the Constitution praying for a writ of mandamus or in the nature of mandamus or a writ of certiorari or any other appropriate writ order or direction restraining the first and the second respondents from interfering with the right of the petitioner Ashrafmiya Saidumiya to stay at Mahuva or to move in the districts of Bhavnagar and Amreli by quashing and setting aside the order of the first respondent dated 15th April 1961 and the order of the second respondent dated 19th August 1961. ( 2 ) THE petitioner is a citizen of India and was a resident of Mahuva District Bhavnagar. Respondent No. 1 is the Sub-Divisional Magistrate Mahuva Sub-Division of the district of Bhavnagar. Respondent No. 1 issued a notice under sec. 56 clauses (a) and (b) of the Bombay Police Act 1951 (hereafter called the Act) calling upon him why he should not be externed from the districts of Bhavnagar Amreli Surendranagar Rajkot and Junagadh. In response to this notice the petitioner appeared before respondent No. 1 and filed a written-statement on 29th of November 1960 and a certain document. Respondent No. 1 held an enquiry into the matter in which petitioner examined 23 witnesses. Ultimately on 15th April 1961 respondent No. 1 passed the impugned order by which he externed the petitioner only from the districts of Bhavnagar and Amreli. Aggrieved by this order the petitioner preferred an appeal to the second respondent the State of Gujarat. The appeal was heard in July 1961 and it was dismissed on 19th August 1961. Thereafter the petitioner presented the present petition to this Court. ( 3 ) MR. Thakker raised six points in support of this petition. Three of the points however had not been taken up in the petition and they were new points altogether. These three points were (1) that the allegations in the notice issued under sec. Thereafter the petitioner presented the present petition to this Court. ( 3 ) MR. Thakker raised six points in support of this petition. Three of the points however had not been taken up in the petition and they were new points altogether. These three points were (1) that the allegations in the notice issued under sec. 56 (a) and (b) of the Act were vague and did not afford a reasonable opportunity to the petitioner to tender an explanation in regard to them; (2) that the respondent No. 1 in passing the impugned order had relied on circumstances of which no notice was given to the petitioner before the order was passed; and (3) that the respondent No. 1 had not arrived at any positive finding as to whether he was satisfied that the case against the petitioner fell within the purview of clause (a) or clause (b) of sec. 56 of the Act. We did not however permit Mr. Thakker to raise these three points. We felt that if these three points were permitted to be raised at this stage it would spring a surprise on the respondents. As these points had not been mentioned in the petition it is quite clear that the two respondents did not have a chance of having their say in respect of these three points. Under the circumstances these three points need not be considered by us. The other three points which were raised and argued before us were (1) that the notice and the order were without jurisdiction inasmuch as the respondent No. 1 had not been invested with the necessary power to extern the petitioner from an area which was not comprised in the district of Bhavnagar; (2) that both the respondents had failed to apply their mind to the points of dispute between the parties before passing the impugned orders; and (3) that in any case the two respondents did not give any ground nor are there any materials on the record from which it can be found as to why the petitioner was being externed not only from the district of Bhavnagar but from the contiguous district of Amreli. ( 4 ) THE first point of jurisdiction is based upon sec 56 of the Act and Involves an interpretation of a part of that section. It will be convenient to reproduce the whole of the section at this stage. ( 4 ) THE first point of jurisdiction is based upon sec 56 of the Act and Involves an interpretation of a part of that section. It will be convenient to reproduce the whole of the section at this stage. ( 5 ) 56 Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under sec. 7 to the Commissioner and in other area or areas to which the State Government may by notification in the Official Gazette extend the provisions of this section to the District Magistrate or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm danger or harm to person or property or (b) that there are reasonable grounds for believing that. such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII XVI or XVII of the Indian Penal Code or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant the said officer may by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts. or any part thereof contiguous thereto by such route and within such time as the said officer may prescribe and not to enter or return to the said area or the area and such contiguous districts or part thereof as the case may be from which he was directed to remove himself. ( 6 ) A plain reading of the section shows that the first part of the section mentions the officers who are competent to act under the section. ( 6 ) A plain reading of the section shows that the first part of the section mentions the officers who are competent to act under the section. The officers mentioned are (1) the Police Commissioner (2) the District Magistrate and (3) the Sub-Divisional Magistrate. The powers of externment are not automatically conferred upon all these three officers. It is only the Police Commissioner who has been invested with the power under the section by the statute itself. The District Magistrate also has been invested with the same power but his power is dependent upon the determination of the State Government as to whether the provisions of sec. 56 should or should not be applied to the district in which the District Magistrate presides. If and when the provisions of sec. 56 happen to be extended by the State Government then the District Magistrate by the impact of that notification will get the power under the section. But in this connection it is important to notice that the State Government may not necessarily extend the provision of the section to the district as a whole. It is open to the State Government to restrict the operation of the section to a part of a district in which case the jurisdiction of the District Magistrate will be confined only to that part to which the provisions of the section are applied. As regards the Sub-Divisional Magistrate he does not get the power under the section by virtue of either the statute or by virtue of the notification which the State Government is empowered to issue for extending the provision of the section to a district or a part thereof. In order that the Sub-Divisional Magistrate may get the power under the section it is necessary that he should be specially empowered by the State Government in that behalf. Therefore so far as a Sub-Divisional Magistrate is concerned it is quite clear that before he can get the power to act under sec. 56 firstly there must be a notification by the State Government extending the provisions of the section over the Sub-Division over which the Sub-Divisional Magistrate presides and secondly that he must be specially empowered by the State Government to act under the section. It is only when these two conditions are satisfied that the Sub-Divisional Magistrate will be competent to act under the section. It is only when these two conditions are satisfied that the Sub-Divisional Magistrate will be competent to act under the section. In the present case it is not disputed that the provisions of the Section were applied by the State Government to the district of Bhavnagar of which Mahuwa is a Sub-Division. It is also not disputed that the Sub-Divisional Magistrate of Mahuwa was specially empowered by a notification No. SB-II-Est 3959/18949 (2) dated 1 October 1959 to act under sec. 56 of the Act. The relevant portion of this notification is reproduced in paragraph 9 (1) of the petition. Prom that notification it appears that the Sub-Divisional Magistrate of Mahuwa was empowered to act under sec. 56 and some other sections in the whole district of Bhavnagar. We may mention that we are not concerned in the present proceeding as to whether a conferment of power over the whole district of Bhavnagar on the Sub-Divisional Magistrate was valid or not. That question has not been raised in the present petition and we do not propose to deal with it. Mr. Thakker however contended that a fair reading of the notification is that the Sub-Divisional Magistrate was given power to act only in the Sub-Division of Mahuwa and not in the district of Bhavnagar as a whole and it is on that basis that Mr. Thakker argued the question of jurisdiction. We propose to examine the validity of his submissions on this basis. Therefore Mr. Thakker did not dispute that the respondent No. 1 had jurisdiction under sec. 56 to pass the impugned order which would operate in the Sub-Division of Mahuwa. The question which he raised was that neither the notification nor the section conferred power upon the Sub-Divisional Magistrate to extern a person from areas contiguous to the Sub-Division of Mahuwa and that in any case that power did not include the power to extend the area of externment to the neighbouring district of Amreli. The second part of the section deals with satisfaction of the officers mentioned above. It mentions the points on which the officers should be satisfied before acting under the section. Then the third part of the section says that after such satisfaction (and we are quoting only the relevant and material part thereof ). . . . . . the said officer may by an order in writing. . . . . . It mentions the points on which the officers should be satisfied before acting under the section. Then the third part of the section says that after such satisfaction (and we are quoting only the relevant and material part thereof ). . . . . . the said officer may by an order in writing. . . . . . . . direct such person. . . . . . . . . . to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts or any part thereof contiguous thereto. . . . . . This part of the section deals with the area of externment. ( 7 ) THEREFORE the scheme of the section appears to be as follows. The first part of the section mentions the officers competent to act under the section. The second part mentions the various activities of the proposed externee on which the officer is to be satisfied and the third part deals with the area of externment. That third part mentions two categories of such area. The first category is the area which is situated within the local limits of the jurisdiction of the officer concerned and the second category consists of areas contiguous to the area situated within such limits. ( 8 ) NOW the first contention of Mr. Thakker is that in order that a Sub-Divisional Magistrate may have the power to extern a person from any limit it is necessary that the limit from which the person is to be externed must be mentioned in the notification itself which confers the power of externment on him. In other words the argument is that the territorial content of the order of externment would depend upon the notification issued by the Government under the first part of the section. We cannot uphold this contention. In our judgment the first of the section does not deal with the topic of the area of externment. That topic is dealt with by the third part of the section. The first part of the section deals with only the question of the Sub-Divisional Magistrate being empowered to act under the section. We cannot uphold this contention. In our judgment the first of the section does not deal with the topic of the area of externment. That topic is dealt with by the third part of the section. The first part of the section deals with only the question of the Sub-Divisional Magistrate being empowered to act under the section. The Government determines that question and once the Government decides to confer that power upon the officer concerned then the question as to whether over that territory his jurisdiction should extend does not depend upon the terms of the notification at all but is dependent upon the third part of the section. In other words the impact of the territorial jurisdiction of the officer is dependent upon not anything which he derives from the notification of the Government but is entirely dependent upon the wording of the third part of the section. The moment a Sub-Divisional Magistrate is given the power under the first part of the section then it automatically follows from the language used in the third part that he gets the power of externing the person from the local limits of his jurisdiction and also from the contiguous areas. Therefore in our view the State Government having conferred the necessary power on the Sub-Divisional Magistrate of Mahuwa by the aforesaid notification the officer gets power of externing persons not only from the jurisdiction of his own limit but also from the limits of the contiguous areas. ( 9 ) MR. Thakker further contended that even if the aforesaid interpretation were correct the language relating to the contiguous areas as used in the section is not applicable to a Sub-Divisional Magistrate. The contention was that the language showed that the jurisdiction to extend the order of externment to contiguous areas was conferred only upon officers other than the Sub-Divisional Magistrate. This argument of Mr. Thakker was based upon the words or such area and any district or districts or any part thereof contiguous thereto. Mr. Thakker contended that the words any district are inapplicable to the case of a Sub-Divisional Magistrate. A Sub-Divisional Magistrate necessarily has jurisdiction only over his sub-division which is part of a district and not the district as a whole. Therefore according to Mr. Mr. Thakker contended that the words any district are inapplicable to the case of a Sub-Divisional Magistrate. A Sub-Divisional Magistrate necessarily has jurisdiction only over his sub-division which is part of a district and not the district as a whole. Therefore according to Mr. Thakker when a Subdivisional Magistrate passes an order in respect of a contiguous area he would be passing an order in respect of the district of which his sub-division forms a part. According to Mr. Thakker the second part speaks of a contiguous district and not of the same district and as the contiguous area would not form a part of another district the Sub-Divisional Magistrate has no jurisdiction over the area contiguous to his sub-division which forms a part of his own district. We are unable to see how the language is capable of excluding any area from the same district. If the contentions of Mr. Thakaer were correct then the word any would not have been there at all and moreover the words would not be any district but they would be any other district. In our judgment if the third part of the section is read as a whole there is nothing in it which suggests that any portion of the same district is not to be included in the concept of a contiguous area. The part on which Mr. Thakker relies was introduced by the Legislature for the first time by the Bombay Amending Act 1 of 1956. Before the amendment the officer concerned had powers to extern from the area within his own jurisdiction. Probably the Legislature thought that if an externee externed from one area were to go and reside in a neighbouring area he would be able to operate within the externed area from the neighbouring area and the mischief which the Legislature intended to suppress would not be completely suppressed. Therefore probably the Legislature gave the power to the officer concerned to extern a person not only from the limits of his own area but also from the limits of the neighbouring area so that the object of preventing the externee from committing mischief may reasonably be achieved. If the interpretation which Mr. Therefore probably the Legislature gave the power to the officer concerned to extern a person not only from the limits of his own area but also from the limits of the neighbouring area so that the object of preventing the externee from committing mischief may reasonably be achieved. If the interpretation which Mr. Thakker seeks to place upon the amended part of the section were upheld it would probably mean that several of the officers mentioned in the first part of the section would be powerless to extern a person from the contiguous area. Probably the only officer who would have that power would be the Police Commissioner of Greater Bombay and in the case of the areas like the city of Ahmedabad the officer concerned would be completely powerless to extern a person from the neighbouring area altogether. We have already pointed out that the Government has got the power of restricting the application of the section to a part of a district. If such a notification is issued then even a District Magistrate would be powerless to extern a person from any other part of his own district. This would mean that whereas the Legislature intended to give power to a District Magistrate not only to extern from his own district but also from the neighbouring districts when the operation of the section is confined only to a part of his district he would not be able to act beyond the area if that part happens to be a part of his own district. Before we can accede to an interpretation of the section which leads to such an absurdity we must be convinced that the interpretation which Mr. Thakker pleads for is the only interpretation which can be placed upon the section In our judgment there is no reason either on principle or on the language of the section which should necessarily mean that the amended part of the section does not include a part of the same district. Our interpretation is very much reinforced by the fact that the amended part mentions not only district or districts but even parts thereof. In our judgment the contiguous areas need not be a whole of the district but it may be a part of the district. Our interpretation is very much reinforced by the fact that the amended part mentions not only district or districts but even parts thereof. In our judgment the contiguous areas need not be a whole of the district but it may be a part of the district. In that view of the matter it is quite clear that the amended part of the section includes not merely a neighbouring district but also neighbouring part of the same district. Moreover it is quite clear from the third part of the section that the officer concerned must in the first instance exercise the power of externment in respect of the area within his jurisdiction. The contiguous area is the additional area which if he thinks proper may be included in the order of externment. Therefore a bare reading of the third part of the section would mean that the officer has power to extern a person from the local limits of his jurisdiction and from an area which is contiguous to the area which is situated within those local limits. If such was not the intention of the Legislature the Legislature would not have used the words such area in the amended portion of the section. Such area must necessarily refer to the area of the local limits of the jurisdiction of the officer concerned. In that view of the matter the officer concerned has power by virtue of the jurisdiction conferred upon him to act under the first part of the section to extern a person not only from the area within his jurisdiction but also from other areas the only limitation being that that area must be contiguous to the area of his own jurisdiction. This interpretation of section 56 is reinforced by a reading of sections 55 and 57 of the Act which are in pari materia. So far as section 55 is concerned it is important to notice that the section itself confers power to act on a Sub-Divisional Magistrate and the latters jurisdiction is not dependent upon any notification. It is clear from the language of that section that a Sub-Divisional Magistrate has power to extern a person not only from the limits of his jurisdiction but also from the neighbouring areas. If the interpretation of Mr. It is clear from the language of that section that a Sub-Divisional Magistrate has power to extern a person not only from the limits of his jurisdiction but also from the neighbouring areas. If the interpretation of Mr. Thakker were to be upheld then the amended part of section 55 which is the same as the amended part in section 56 would totally be come redundant inasmuch as it would mean that a Sub-Divisional Magistrate has no power whatsoever of externing a person from a contiguous area. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 10 ) [the rest of the judgment is not material for the reports ] Rule discharged. .