NOORMIYA AHMADMIYA v. STATE — 1963 DIGILAW 114 (GUJ)

N. M. MIABHOY, M. U. SHAH, J. ( 1 ) THIS petition is directed against an order dated 1st July 1963 passed by the Deputy Commissioner of Police Special Branch Ahmedabad the second respondent and an appellate order passed by the State of Gujarat the first respondent on 25th of October 1963. The original order passed by the second respondent was confirmed by the first respondent. The original order was passed under section 57 of the Bombay Police Act 1951 (hereafter called the Act ). By that order second respondent directed petitioner to remove himself from the District of Ahmedabad City and the contiguous District of Ahmedabad Rural by railway or road within two days from the date of the order and he further directed petitioner not to return to or to enter in the area of the District of Ahmedabad City and the contiguous District of Ahmedabad Rural for a period of one year from the date of the order without the permission in writing from the Commissioner of Police Ahmedabad City or the first respondent. ( 2 ) THE Superintendent of Police `b Division Ahmedabad City served petitioner with a notice bearing date 8th February 1963 on 12th February 1963 under sec 59 of the Act calling upon petitioner to show cause why he should not be externed from the City of Ahmedabad and the surrounding Districts on the ground that petitioner had to his discredit two convictions recorded on 24th November 1953 and 31st August 1957 under various sections mentioned in the notice and on the further ground that petitioner had after the aforesaid convictions were recorded on or about 28th January 1963 at about 10-45 p. m. committed an assault on a Police Constable and given him a fist blow on his face thereby breaking one of the constables teeth. The petitioner showed cause in response to this notice. The papers were then submitted to the second respondent and the second respondent by his order dated 1st July 1963 recorded the finding that petitioner was convicted as aforesaid and that he was satisfied that petitioner was likely again to engage himself in the commission of offences similar to those for which he had already been convicted. On these grounds second respondent passed the impugned order. Petitioner went in appeal under sec. On these grounds second respondent passed the impugned order. Petitioner went in appeal under sec. 60 of the Act to the first respondent and that appeal was dismissed by the first respondent on 25th of October 1963. The present writ petition was filed against the two respondents in this Court by petitioner on 28th of October 1963. In this petition petitioner prays for the issuance of a writ of mandamus or any other appropriate writ order or direction quashing or setting aside the order passed by the-two respondents. ( 3 ) MISS Shah supports the present petition on the following three grounds:-- (1) that the original order dated 1st July 1963 was bad inasmuch as it did not specify the route by which petitioner was to leave the jurisdiction of the second respondent; (2) that the second respondent was influenced by extraneous evidence in reaching his final conclusion; and (3) that the convictions were stale and could not have been made the ground for an order under sec. 57 of the Act. ( 4 ) IN our judgment there is no substance in any of the aforesaid submissions of Miss Shah and the present petition deserves to be dismissed with costs. ( 5 ) THE first submission of Miss Shah is based upon the latter part of sec. 57 of the Act the relevant part of which is as follows:--". . . . the Commissioner may direct such person to remove himself outside the area within the local limits of his jurisdiction. . . . . . by such route. . . . . . as the said officer may prescrib e. . . . "the submission of Miss Shah is that the provision in this part of sec. 57 relating to the prescription of the route is a mandatory provision and a breach of that provision must necessarily result in the nullification of tie impugned order. Therefore the contention of Miss Shah is mainly based upon the validity or otherwise of this submission of hers that the aforesaid provision is mandatory. Miss Shahs contention is that the first part of the aforesaid portion of sec. 57 is discretionary viz. that which empowers the authority concerned to direct externment of a person. Therefore the contention of Miss Shah is mainly based upon the validity or otherwise of this submission of hers that the aforesaid provision is mandatory. Miss Shahs contention is that the first part of the aforesaid portion of sec. 57 is discretionary viz. that which empowers the authority concerned to direct externment of a person. But she contends that the latter part which directs that the officer shall prescribe the route by which the proposed externed is to leave the area from which he is externed is mandatory. According to her even though the requirements of sec. 57 may be satisfied the law does not compel the officer to make an order of externment but that once the officer decides to make an order of externment then the latter part of sec. 57 makes it compulsory for him to prescribe the route by which the proposed externee is to leave his jurisdiction or the contiguous area. In our judgment it is difficult to agree with this submission of Miss Shah. in the first instance the language of the aforesaid part of sec. 57 in our judgment is not in mandatory terms. The section uses the word may in the first part which Miss Shah concedes is discretionary and also the same word may in the latter part. But in our judgment even if one were not to take the view that the latter part is not permissive but compels the authority to prescribe the route of departure it does not necessarily follow from this that a breach of that particular prescription must necessarily result in the nullification of the order. even if a section or part of a section prescribes a certain requirement to be fulfilled although ordinarily the breach of that requirement would nullify the order itself before a Court can reach such a conclusion it is necessary to ascertain as to whether the Legislature has or has not prescribed as to what the effect of that particular breach is. In our judgment section 61 of the Act is a clear answer on this particular subject. Section 61 states in terms that an order passed under among others sec. 57 shall not be called in question in any Court except on certain stated grounds. The grounds which are stated in that section do not cover the omission to mention the route by which the proposed externee is to leave. Section 61 states in terms that an order passed under among others sec. 57 shall not be called in question in any Court except on certain stated grounds. The grounds which are stated in that section do not cover the omission to mention the route by which the proposed externee is to leave. When the Legislature has expressed a clear intention as to what the effect of a bleach of provision contained in the statute is the first duty of the Court is to give effect to that intention. It is only when the statute does not offer an answer as to what really the intention of the Legislature is that the question as to whether the provision is directory or mandatory or as to whether the breach of the provision should result in a nullification of the order would arise. Therefore in our judgment having regard to the provision contained in sec. 61 the aforesaid part of section 57 which enjoins on the authority concerned to prescribe the route for the departure of the proposed externee cannot be regarded to be a provision the breach of which must be visited with the nullification of the order made under sec. 57 of th e Act. ( 6 ) MISS Shah however relies upon some cases decided by the Bombay High Court in support of the proposition for which she contends. Firstly she relies upon the case of Hasanalli Mohomedhussein Shariffi v. State of Bombay reported in 53 Bombay Law Reporter page 681. That was a case in which an order was passed by the Commissioner of Police Bombay under section 27 (1) (a) of the City of Bombay Police Act 1902 That section was enacted to enable the Commissioner of Police to pass an externment order. But the powers and duties which were conferred by that sub-clause (a) were worded slightly in different manner from the language in which powers and duties are worded in section 57 of the Act. In section 27 sub-section (1) clause (a) it was stated that the Commissioner may order a person to remove himself out side the Province or to such place within the Province and by such route and within such time as the Commissioner of Police shall prescribe and not to enter the Province or as the case may be the Greater Bombay. The order with which the Bombay High Court had to deal with in the aforesaid case was one which did not indicate (1) the place to which the proposed externee was to go (2) the route by which he was to depart and (3) the time within which he was to depart The contention which was urged was that because of these defects the order passed by the Commissioner of Police was a void order. The two learned Judges constituting the Division Bench differed on the question of interpretation of the aforesaid part of section 27 sub-section (1) clause (a ). Mr. Justice Bavdekar considered the provision to be mandatory and he expressed himself as follows:-- if we look from the practical point of view the externee does not suffer because of the absence of the place in the order and the absence of the route by which he is to go. But it has after all got to be remembered that the order is an order which deprives the person of his freedom. Whenever there is a provision of the law in accordance with which a person can be deprived of his freedom before an order can be passed the provision of the Act must be strictly followed. It is true that it is difficult to understand why the Legislature should have put into sec. 27 (1) a requirement that where the externee was not to be externed out of the Province the place where he is to go and the route by which he is to go and the time within which he is to go should also be specified in the order. But the Legislature has thought it fit to impose requirements and I think that it is not for us to speculate as to the objects of the Legislature in imposing those obligations. But Mr. Justice Chainani (as he then was) did not agree with Mr. Justice Bavdekar. At page 688 the learned Judge expressed himself as follows:- the next question to be considered is whether the order is bad on the ground that it does not specify the place to which the petitioner had to remove himself out of the Greater Bombay and the route by which he had to go to that place. Justice Bavdekar. At page 688 the learned Judge expressed himself as follows:- the next question to be considered is whether the order is bad on the ground that it does not specify the place to which the petitioner had to remove himself out of the Greater Bombay and the route by which he had to go to that place. It is not known why the Legislature considered it necessary to provide in the section that these matters should also be specified in the order. Probably the object was to enable the authorities to exercise some check over the person concerned both during the journey to and at the place to which he was required to remove himself. An order which specifies the place to which the externee has to remove himself and the route by which he has to go to that place is obviously more stringent and imposes much greater restrictions than an order which does not specify these matters. In the latter case the person concerned can to go any place he chooses outside Greater Bombay and can also travel by any route he likes. The main object of the section is also to empower the Commissioner of Police to remove the undesirable persons from Greater Bombay and in certain cases outside the Province. From this point of view also it is immaterial to which place outside the Greater Bombay externee goes or the route by which he goes to that place. I would therefore personally regard the provisions of the section which require the place and the route to be mentioned in the order as merely directory and not mandatory. That this was the intention of the Legislature is also clear from the provisions of sub-section (7) under which an order cannot be called in question on the ground that it does not specify the place to which the externee has to remove himself or the route by which he has to remove himself to that place. In my opinion therefore the order would not be illegal merely because these matters are not specified in the order and merely because it is left to the externee to choose the place to which he may go outside the Greater Bombay or the route by which he may travel to that place. I am. In my opinion therefore the order would not be illegal merely because these matters are not specified in the order and merely because it is left to the externee to choose the place to which he may go outside the Greater Bombay or the route by which he may travel to that place. I am. however bound by the decision of another bench of this Court in State v. Vithal Wanaji Mazire. ( Criminal Application No. 1042 of 1950 decided by Rajadhyaksha and Vyas JJ. on February 2 1951 therefore the two Judges having differed on the question of the effect of a defective order of the aforesaid type the above case cannot be regarded as an authority for the proposition for which Miss Shah contends. It is not necessary for us to express any opinion as to what is the effect of a failure to mention the place to which an externee is to go because such a provision is not to be found in section 57 of the Act nor is it necessary for us to express any opinion as to what is the effect of the failure to specify the time within which the externee is to depart. But with great respect in our judgment the observations made by Mr. Justice Chainani in the aforesaid case relating to the effect of the failure to mention the route by which the proposed externee was to go are correct and represent the correct law on the subject. In our judgment even if section 27 (1) were to be read as it is before it can be decided whether the provision is directory or mandatory in the sense as to what the erect of the breach of that provision would be it is necessary to consider the scope and the purpose of the enactment which is broken and in our judgment the purpose which is mentioned by Mr. Justice Chainani appears to us to be the true purpose why the aforesaid provision was enacted. It will be noteworthy that Mr. Justice Bavdekar does not say anything as to why the aforesaid provision has been inserted by the Legislature. Justice Chainani appears to us to be the true purpose why the aforesaid provision was enacted. It will be noteworthy that Mr. Justice Bavdekar does not say anything as to why the aforesaid provision has been inserted by the Legislature. In our judgment the aforesaid provision was not inserted for the benefit of the externee but it was inserted with a view to enable the externing authority to keep a check as to whether the order of externment has or has not been properly and effectively carried out. In our judgment what really the externing authority is concerned with is to see that the proposed externee leaves his jurisdiction and the duty on the part of the proposed externee is to leave such jurisdiction on such an order being made. The question as to whether which route out of the several alternative routes available to the proposed externee he chooses is not of any importance to the proposed externee at all. Whether he leaves by one route or any of the other alternative routes it does not matter because the effect of his departure would be that he would have to remain outside the jurisdiction and thereby he would be complying with the order of the externing authority Mr. Justice Bavdekar does not appear to have considered sub-section (7) because of his view that that sub-section was ultra vires. But the contention has not been raised before us that section 61 of the Act which is on the lines of sub-sec. (7) is ultra vires. Therefore so long as section 61 of the Act remains there cannot be any doubt that the view which has been taken by Mr. Justice Chainani is the correct view. ( 7 ) BUT Miss Shah contends that we are also bound by the case of State v. Vithal Wanaji Mazire referred to by Mr. Justice Chainani in the passage quoted by us in this judgment. A copy of that judgment was read out to us by Miss Shah. However that particular case also arose under section 27 (1) (a) of the Bombay City Police Act. In that case the place to which the externee was to go and the route by which he was to depart and the time within which he was to depart were not specified. However that particular case also arose under section 27 (1) (a) of the Bombay City Police Act. In that case the place to which the externee was to go and the route by which he was to depart and the time within which he was to depart were not specified. However in our judgment that case cannot be regarded as a binding authority for the interpretation of section 57 of the Act. That was a case under section 27 (1) (a) with which we are not concerned. The judgment does not refer to sub-section (7) corresponding to section 61 of the Act. Therefore the judgment is per incuriam. Probably the sub-section was not brought to the notice of Their Lordships. Moreover that judgment does not indicate the reasons as to why Their Lordships came to the aforesaid conclusion. The only reason which is given in support of the conclusion is that the provisions relating to all the aforesaid three matters were mandatory and the breach thereof made the order bad. Moreover it appears that the question relating to the no specification of the route was not considered by Their Lordships separately and apart from the non-specification of the place and the time of departure. In the aforesaid Mazires case a reference is made to another case decided by a bench consisting of the learned Chief Justice Chagla and Mr. Justice Gajendragadkar That was a case arising out of an order passed under section 9 (1) of the Bombay Prevention of Prostitution Act 1923 The quotation given in Mazires case from the judgment delivered by the Division Bench would show that the judgment of Chagla C. J. was based on the ground that the order had failed to mention the place to which the person against whom the order was passed was to go. The judgment of Chagla C. J. does not appeal to have been based on the ground that the route had not been specified. More we are told by the learned Government Pleader that there was no provision corresponding to section 61 in the Bombay Prevention of Prostitution Act 1923 Under the circumstances in our judgment none of these authorities can be regarded as finally deciding and interpreting the provision contained in section 57 of the Act. More we are told by the learned Government Pleader that there was no provision corresponding to section 61 in the Bombay Prevention of Prostitution Act 1923 Under the circumstances in our judgment none of these authorities can be regarded as finally deciding and interpreting the provision contained in section 57 of the Act. ( 8 ) FOR the aforesaid reasons we have come to the conclusion that the first submission of Miss Shah must be negatived. We hold that the order is not bad because the route has not been specified by which the petitioner was to leave the jurisdiction of the second respondent. [the rest of the judgment is not material for this report. .