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2008 DIGILAW 1178 (BOM)

Gunwanta Gajanan Khandekar v. Sub-Divisional Magistrate

2008-08-20

C.L.PANGARKAR

body2008
PANGARKAR C.L., J.: - Rule. Returnable forthwith. Heard finally with consent of parties. 2. This is a writ petition under Articles 226 and 227 of the Constitution of India, challenging the order of externment passed against the present petitioner by respondent No.1. 3. The petitioner is a citizen of India and resident of Kanhan. He is a taxi driver and lives with his wife, mother and children. The petitioner, it is alleged, was involved in commission of certain crimes. It is alleged further that he has become source of nuisance to the society and therefore it has become necessary to extern him. 4. The petitioner challenges the externment order on two grounds namely; that no show cause notice was served on him and secondly; on the ground that the order of externment is excessive, in as much as even though the activities are allegedly restricted to District of Nagpur, he has been externment from. Gondia, Bhandara and Chandrapur. 5. I have heard the learned Counsel for the petitioner and the respondents. 6. The externment order clearly goes to show that the activities of the present petitioner are restricted only to Nagpur district. Inspite of the fact that the activities are restricted to Nagpur district alone, an order externment the petitioner from Gondia, Bhandara and Chandrapur has also been passed. This Court has repeatedly held that where the order is excessive, it has to be set aside as a whole and not in part. The leaned Counsel has relied on a leading decision of this Court reported in 1988(2) Bom.C.R. 724 : 1988 Mh.L.J. 1032 (Umar Mohamed Malbari Vs. K.P. Gaikwad, Dy. Commissioner of Police and anr.)1, wherein following observations are made- Where the activities indulged in by the petitioner were restricted within the Talum of Bhiwandi within the Thane Commissionerate, the order externment the petitioner out of the Raigad and Nasik Districts which has within them Taluka places at a distance of more than 100 miles is an excessive order and the excessive order had necessarily to be struck down because no greater restraint on personal liberty can be permitted than J is reasonable in the circumstances of the case. It cannot be said that the entire order of externment was not liable to be struck down merely because it covered areas that were excessive than what was justified and appropriate areas of externment can be substituted with the areas contemplated in the impugned order C of externment. The High Court, when it is sues the high prerogative writ of certiorari, it directs the Judicial Tribunal against which is acting to transmit its record to the (Court and if necessary to quash the order which the Tribunal has passed. In issuing the writ the High Court is not to act as a Court of Appeal. It is only concerned with E the question as to whether the Tribunal 1 exercising judicial or quasi judicial function 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 the High Court is to quash I 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 c an excessive order passed by the Author- 5 it concerned, In view of the law as laid down by the n Division Bench of this Court, the orders 1i suffer from illegality and therefore, needs n to be quashed. Hence, the order the order of externment as passed to against the present petitioner is set aside and quashed. Order quashed.