Nilesh Prabhakar Chondalkar v. State of Maharashtra
2012-08-02
A.M.KHANWILKAR, R.G.KETKAR
body2012
DigiLaw.ai
Judgment : 1. Heard Counsel for the parties. 2. Rule. Learned A.P.P waives service for Respondent-State. Rule made returnable forthwith, by consent and heard finally. 3. This Petition under Article 226 of the Constitution of India challenges the externment order passed on 8.2.2012 by the Appropriate Authority and also the order passed by the Appellate Authority dated 21.3.2012 confirming the same. 4. For the nature of order that we propose to pass, it may not be necessary to advert to the factual matrix of the case. We shall straightway advert to the principal ground urged before us. The externment order directs the petitioner to remove himself from the specified area for a period of six months. The proceedings were initiated by Sponsoring Authority on 18.2.2011 by issuance of show cause notice on 23.3.2011. However, there was complete lull between 23.3.2011 till 26.5.2011. No explanation is offered in the order as to why the show cause notice could not be taken forward during this period. The first hearing took place before Appropriate Authority only on 26.5.2011, which can be discerned from the third page of the order at running page 59 of the paper book, wherein it is mentioned that hearing before the Appropriate Authority was fixed on 26.5.2011 and continued till 4.2.2012. The Appropriate Authority has also noted several dates on which matter was adjourned either at the instance of the petitioner or for administrative reasons. The fact remains that there is no explanation whatsoever for the inaction between 23.3.2011 till 26.5.2011. 5. The order of externment is obviously a preventive action and not a punitive action. Besides, it has to be resorted to when it is imminent to direct removal of the person from the specified area. The fact that the Appropriate Authority took almost one year to record subjective satisfaction in this behalf, casts serious doubt about the necessity of immediate removal of the petitioner from the specified area. 6. The explanation offered by the learned A.P.P is that the matter was delayed from 26.5.2011 mainly on account of the request for adjournments made by the petitioner and the petitioner cannot take advantage of his own wrong. As aforesaid, no explanation has been offered for the inaction between 23.3.2011 till 26.5.2011 by the Appropriate Authority at all.
6. The explanation offered by the learned A.P.P is that the matter was delayed from 26.5.2011 mainly on account of the request for adjournments made by the petitioner and the petitioner cannot take advantage of his own wrong. As aforesaid, no explanation has been offered for the inaction between 23.3.2011 till 26.5.2011 by the Appropriate Authority at all. Moreover, the fact that the petitioner's request for adjournment does not extricate the Appropriate Authority from its duty to decide externment proceedings with utmost despatch, which are intended for immediate removal of the person from the specified area as preventive action. If any authority is required on this proposition, we may usefully refer to the decision the Division Bench of this Court in the case of DilipLaxman Kokare Vs. S.M.Ambedkar and Anr, 1991 Mh.L.J., 833. In other words, we have no hesitation in taking the view that the subjective satisfaction recorded by the Appropriate Authority about the necessity to extern the petitioner from the specified area, that too, only for a period of six months after taking almost one year for conclusion of the externment proceedings, is vitiated. 7. Petition succeeds in terms of prayer clause (b). 8. Rule made absolute. Petition is disposed of accordingly.