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2018 DIGILAW 840 (GUJ)

Narendra Sureshchandra Vyas v. State of Gujarat

2018-07-09

A.J.SHASTRI

body2018
JUDGMENT A.J. Shastri, J. The present petition under Article 226 of the Constitution of India is filed by the applicant for the purpose of seeking following relief’s: "(A) To quash and set aside the externment order dated 1.8.2017 in externment case No.64 of 2017 passed by the respondent No.2 and the appellate order dated 9.2.2018 passed by the respondent No.1 and further direct the respondents to allow the petitioner to enter the limits of Ahmedabad city, Ahmedabad Rural, Gandhinagar, Mehsana and Kheda. (B) During the pendency and final disposal of this petition, the impugned orders dated 1.8.2017 and 9.2.2018 may be stayed qua Ahmedabad Rural, Gandhinagar, Mehsana and Kheda. (C) To grant such other and further relief as may be though fit." 2. The case of the applicant is that applicant is in receipt of a notice dated 16.03.2017 from respondent No.2 under Section 59 of the Gujarat Police Act for seeking externment of the applicant from the areas which are mentioned in the notice. Upon receipt of the notice, a reply was submitted on 01.04.2017 explaining the circumstances in detail as to why action should not be taken of externment against the applicant. 3. After considering reply, the respondent No.2 - authority has passed an order of externment on 01.08.2017. As a result of this, the applicant was constrained to prefer the appeal before respondent No.1 which came to be dismissed by judgment and order dated 09.02.2018 and it is against these two concurrent decisions, the present applicant has invoked extraordinary jurisdiction of this Court. 4. This petition was entertained by the Court by issuing Rule vide order dated 28.02.2018 and thereafter, it has come up for consideration before this Court in which the applicant is represented by Mr. S.B. Gohil, learned advocate. 5. Mr. Gohil, learned advocate, has contended that simply because FIRs have been lodged, the same cannot be the ground for externing the applicant from the area. S.B. Gohil, learned advocate. 5. Mr. Gohil, learned advocate, has contended that simply because FIRs have been lodged, the same cannot be the ground for externing the applicant from the area. In fact, the authority has travelled beyond the scope of jurisdiction inasmuch as two criminal cases have been registered are in the vicinity of Bapunagar Police Station, Ahmedabad city, whereas the externment order is passed with respect to four districts, namely, Kheda, Mehsana, Gandhinagar and Ahmedabad Rural, as well and, therefore, in the absence of any material against the applicant in those districts, there is hardly any cogent reason available with the authority to extern the applicant from these areas and, therefore, relying upon decision delivered by this Court in case of Jayesh @ Khana Jethabhai Parmar v. State of Gujarat and Others., in Special Criminal Application No.798 of 2010, the contention is raised that it is not open for the respondent authority to extern the applicant from other areas, as well. 6. Mr. Gohil, learned advocate, has further contended that statements of ten witnesses have been relied upon by the authorities while passing the order of externment but, a reference can be made in Para.4 of the externment order that these ten witnesses have given their secret statements and their identity has not been disclosed and additionally, this very relevant circumstance has not been spelt out in notice before taking any action against the applicant and, therefore, material information having not been put to the applicant in notice, that has adversely affected the right of making effective representation. Hence, the order in question is in flagrant violation of principles of nature of justice. 7. To substantiate this contention that notice also must disclose every material which is sought to be relied upon before passing an order and the said decision is delivered by this Court in SCR.A No.391 of 2002, decided on 21.2.013 and keeping this judgment in mind, a submission is made by learned advocate to set aside the impugned order passed by the authorities below. 8. Yet another contention which have been generated during the course of hearing that there is the gross delay in passing an order of externment and that has also prejudiced the applicant's right to effectively defend. In fact, the notice has been issued on 16.03.2017, reply has also been submitted in the month of April, 2017. 8. Yet another contention which have been generated during the course of hearing that there is the gross delay in passing an order of externment and that has also prejudiced the applicant's right to effectively defend. In fact, the notice has been issued on 16.03.2017, reply has also been submitted in the month of April, 2017. However, after almost a period of more than four months and originally, after 7 months, an order is passed which unexplained delay would vitiate the very exercise of jurisdiction. Hence, relying upon a decision delivered by this Court in SCR.A No.2474 of 2014, decided on 5.11.2014, a contention is raised not to allow this order as well as appellate order to be sustained in the eye of law. 9. Mr. Gohil, learned advocate, has further contended that applicant was asked to produce his witnesses who can depose in his favour and as a result of this, five witnesses' statements have been recorded by the authority and those five witnesses have very much given statements in favour of applicant but, this favourable material is not considered or dealt with by the authority which has prejudicially affected the right of the applicant and non-consideration of material evidence in favour of the applicant would vitiate the very exercise of jurisdiction and, therefore, on this count also, the order of externment is devoid on merit. 10. It is settled position of law, as contended by the learned advocate, that show cause notice must be explicit, must be in detail, disclosing every material and here is a case in which, a bare perusal of the show cause notice would clearly indicate that notice is not only vague but, is not reflecting any circumstances material enough to exercise the jurisdiction and on the basis of such vague show cause notice, since the action is initiated, the very exercise reflects clear non-application of mind. Learned advocate has submitted that no doubt, the powers are always available with the authority but, powers are always coupled with a conscious duty not to act arbitrarily or at whims and since this is a reflection of such exercise, the order in question is required to be corrected by quashing and setting aside the same. No other submissions have been made. 11. To meet with the stand taken by learned advocate for the applicant, Ms. No other submissions have been made. 11. To meet with the stand taken by learned advocate for the applicant, Ms. Monali Bhatt, learned AGP for the State, has vehemently contended that here is a case in which the authority has scrupulously kept in mind the principles of natural justice. Learned AGP has further contended that fullest opportunity was given to meet with the case, so much so personal hearing has also been made available and there is a subjective satisfaction arrived at in which there reflects a clear application of mind while exercising the jurisdiction. 12. A detailed order has been passed by the appellate authority explaining every circumstance including the evidence of application. Hence, such finding of fact since concurrently held by the both the authorities, there is no justifiable reason which would warrant interference by this Court in extraordinary jurisdiction. Looking to the conduct of the applicant, looking to the position of the applicant in the society and looking to the allegations which are levelled, the applicant has definitely misused the position in the society and thereby, committed an act which has rightly been dealt with by the authority. As a result of this, no interference is warranted. Learned AGP has further submitted that the witnesses have chosen not to disclose their identity but, the very facts which are narrated in the material, are taken into consideration by authority and only thereafter, the reasoned order is passed which does not call for any interference. However, learned APP has candidly submitted that so far as other districts are concerned, there seem to be no much material and, therefore, has requested that looking to the conduct, looking to the surrounding area, the appropriate order be passed keeping in view the interest of the society as well and accordingly, has candidly accepted that with respect to other districts i.e. Kheda and Mehsana, in the absence of any material, appropriate order be passed in the interest of justice. No other submissions have been made. 13. Having heard learned advocates appearing for the parties to the proceedings and having gone through material on record, this court is of the opinion that the present petition is submitted against concurrent decision and the conclusion of both the authorities below. However, following circumstances are not possible to be unnoticed by this Court in respect of other areas from which present applicant is externed. However, following circumstances are not possible to be unnoticed by this Court in respect of other areas from which present applicant is externed. (1) First of all, there seem to be valid exercise of jurisdiction by the authorities below in passing an order of externment with respect to particular areas in which complaints have been lodged. Ten statements which have been relied upon and contents of the complaint and relevant statements prima facie indicate that except the area of Ahmedabad and surrounding area, with respect to Kheda and Mehsana, there seem to be no material or apprehension serious enough which fact is not in a position to be disputed even by the authorities. (2) Yet another circumstance which is stinkingly reflecting that two complaints which have been relied upon are of May,2016 as well as October,2016. If the sequence of events and dates of these complaints are to be looked into then, the case which has been put in defense by the applicant that w.e.f. 28.12.2016 to 31.01.2017, the applicant was in central prison in Ahmedabad. There was no justifiable material which can permit the authority to pass an order of externment. Whereas, in fact, the reply of applicant is sufficient enough to indicate that not only two but, three offenses are registered against the applicant and so far as these complaints are concerned, the same are not of the period during which the applicant was in custody and, therefore, on the basis of undisputed position also, it is not correct to accept that activity which has been relied upon is of the tenure during which the applicant was in custody and, therefore, whatever material which has been relied upon by the authority cannot be said to be unjust and arbitrary in any manner. On the contrary, looking to the time gap also, it cannot be said that any illogical satisfaction is arrived at by the authority while exercising jurisdiction. (3) Further, looking to other areas from which the applicant has been externed, such contiguous places are Kheda, Mehsana, Ahmedabad Rural, Gandhinagar and Ahmedabad city. But from the bare reading, so far as the Kheda and Mehsana districts are concerned, there is no material sufficient enough to exercise the jurisdiction for externment and, therefore, this Court is unable to accept the stand taken of authority that with respect to these two districts. But from the bare reading, so far as the Kheda and Mehsana districts are concerned, there is no material sufficient enough to exercise the jurisdiction for externment and, therefore, this Court is unable to accept the stand taken of authority that with respect to these two districts. In fact, since Ahmedabad and Gandhinagar rural and city areas are contiguous, the authority is justified in taking a decision but, so far as the other districts, namely, Kheda and Mehsana are concerned, in the absence of any concrete material sufficient enough, this Court is not in a position to digest the action against the applicant. Accordingly, the present petition deserves to be partly allowed. 14. While coming to this conclusion, the Court has taken into consideration one of the decisions delivered by this Court reported in 2010 (0) AIGELHC 223701 in which also, the externment order of two years was passed with respect to five districts and this Court found that admittedly, no cases were registered in Kheda and Mehsana districts and, therefore, to that extent the order of externment was set side. Here, in the background of these facts, undisputedly, in Kheda and Mehsana districts, there are no other offences registered, as conveyed by the authority and, therefore, the case is squarely covered by the decision referred to above and accordingly, the order of externment requires to be set aside. 15. Yet another circumstance which has been relied upon is with respect to a decision delivered by this Court reported in 2003 (0) AIGEL-HC 204599, in which also a case was put up that there was no reference originally in the show cause notice about the statement of witnesses, whereas in the final order, such statements have been relied upon and, therefore, the order of externment was set aside. But here is a case in which the show cause notice has clearly indicated that some of the witnesses are not inclined to disclose their identity. As a result of this, by referring to that, the show cause notice has not disclosed the names of the witnesses and, therefore, it is not absolutely a case that there was no reference made at all in the show cause notice. As a result of this, by referring to that, the show cause notice has not disclosed the names of the witnesses and, therefore, it is not absolutely a case that there was no reference made at all in the show cause notice. Even while passing an order against the applicant, full opportunity was given to meet with the circumstance and without any much resistance, a defence has been raised by the applicant and, therefore, now, at this juncture, it is not possible to contend by the applicant that those statements were not put to his notice. On the contrary, right from day one, the applicant was aware about the fact that some of the witnesses are considered but, since they were not inclined to disclose their identity, their names were not referred to and, therefore, it is not the case that no reference was at all made and thereafter, the order is passed. Hence, in considered opinion of this Court, the ratio laid down by this Court in the decision referred above applies as a straight jacket formula. 16. Yet another decision which has been pressed into service is a decision on the issue of delay and that there was a considerable delay between issuance of show cause notice and passing of an order. Said decision which has been relied upon is reported in 2014 (0) AIGEL-HC 231878, where the background of facts in such are different than present case on hand and, therefore, the Court is unable to exercise the jurisdiction. In the facts of that case, FIR which was relied upon is I-C.R.No.64 of 2013 and the show cause notice was issued in June,2013 and thereafter, the order was passed in the month of February,2014 and, therefore, there was a considerable delay of more than 8 months in passing of order, whereas here is a case in which show cause notice was issued in the month of March,2017, the reply was submitted in April,20167 and the order came to be passed in August,2017 itself and therefore, there is no gross delay in exercise the jurisdiction. As a result of this, the Court is of the opinion that no case is made out with respect to Kheda and Mehsana districts at least by the authority against the applicant. Hence, the present petition deserves to be allowed in part. 17. As a result of this, the Court is of the opinion that no case is made out with respect to Kheda and Mehsana districts at least by the authority against the applicant. Hence, the present petition deserves to be allowed in part. 17. With respect to three districts in which the Court is not inclined to exercise the jurisdiction in favour of applicant is on a situation that applicant is claiming to be a head strong person. The applicant was facing the serious allegation. The instances which are narrated and the material which is relied upon is also not so simple which would even remotely indicate that the applicant was innocent person. In fact, looking to serious allegations which have been specifically noticed by both the authorities below and thereafter, arrived at a particular conclusion, this subjective satisfaction is not to be substituted in the absence of any perversity. In fact, this subjective satisfaction while passing an order of externment should be that of appropriate competent authority and, therefore, when competent authority has concurrently held against the applicant by considering every material on record and thereafter, came to a conclusion, it cannot be said that findings arrived at are perverse except two districts as referred above. Of course, so far as two districts, as referred to above, are concerned, there may not be any justifiable reason. 18. This being a petition under Article 226 of the Constitution of India, looking to the settled position of law, unless and until there is any perversity or any apparent illegality, normally extraordinary jurisdiction cannot be exercised and the statutory authority must be allowed to act freely within the four corners of law. Even this issue related to law and order situation and affecting the society at large, the satisfaction normally must be that of competent authority to be treated as predominance and this very intent and the object is reflecting from the statutory provision contained under Section 61 of the Gujarat Police Act which reads as under : "61. Even this issue related to law and order situation and affecting the society at large, the satisfaction normally must be that of competent authority to be treated as predominance and this very intent and the object is reflecting from the statutory provision contained under Section 61 of the Gujarat Police Act which reads as under : "61. Any order passed under Section 55, 56 or 57 or by the State Government under Section 60 shall not be called in question in any Court except on the ground that the authority making the order or any office authorized by it had not followed the procedure laid down in sub-section (1) of section 59 or that there was no material before the authority concerned upon which it could have based its order or on the ground that the said authority was not of opinion that witnesses were unwilling to come forward to give evidence in public against the person in respect of whom an order was made under section 36." 18.1 Therefore, looking to this object of the Act and peripheral limits of extraordinary jurisdiction, this Court is of the view that so far as other two districts are concerned, the authority is not justified in view of the material on record. Hence, qua that the Court is unable to accept the decision of the authority. But so far as the satisfaction which has been arrived at with respect to Ahmedabad city and immediate contiguous area - Ahmedabad Rural and Gandhinagar, is not to be disturbed by this Court in extraordinary jurisdiction. 19. In view of the above, the petition is partly allowed by confirming the order passed by the authorities below against the applicant, except in respect of Kheda and Mehsana districts. Rule is made absolutely to the aforesaid extent.