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2021 DIGILAW 635 (BOM)

Deepak Vasant Gahane v. Divisional Commissioner

2021-03-18

AMIT B BORKAR, Z.A.HAQ

body2021
JUDGMENT Amit B. Borkar, J. - Heard. 2. Rule. Rule made returnable forthwith. 3. The petitioner has invoked writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India by challenging the order dated 23.02.2021 passed by the respondent no. 1 confirming the order dated 11.01.2021 passed by the respondent no. 2 externing the petitioner from District Gondia for a period of six months. 4. The facts, which are relevant to adjudicate issue involved in the petition are as follows :- The Police Inspector, Duggipar, Tah. Sadak Arjuni, District Gondia initiated proposal under Section 56(a) and 56(b) of the Maharashtra Police Act, 1951 (for short "the Act of 1951") bearing No. 1704/2020, dated 03.07.2020 proposing externment of the petitioner. On 30.07.2020, the respondent no. 2 called report from the Sub Divisional Police Officer (SDPO), Dewari, who submitted the report stating that there are four offences registered against the petitioner which are in respect of illegal theft of sand and attack on government employee. It is also stated that the petitioner was engaged in illegal transportation of sand causing danger and harm to person and property. 5. On 10.08.2020 a show-cause notice was issued to the petitioner seeking his explanation on the proposal for externment. The petitioner appeared before the respondent no. 2 on 29.10.2020, 09.11.2020, 26.11.2020 and 11.01.2021 alongwith his Advocate. The Advocate for the petitioner made oral submissions. After hearing the Advocate for the petitioner, on 11.01.2021 the respondent no. 2 passed the order of externment against the petitioner from District Gondia for a period of six months. 6. The petitioner challenged the order of externment dated 11.01.2021 passed by the respondent no. 2 by filing Appeal No. 4/2021. The respondent no. 1 after giving opportunity of hearing to the petitioner dismissed Appeal No.4/2021 confirming the order dated 11.01.2021 passed by the respondent no. 2 externing the petitioner for a period of six months. The petitioner has therefore approached this Court by way of the present petition. This Court on 10.03.2021 issued notice to the respondents. 7. We have heard Shri U. K. Bisen, learned Advocate for the petitioner and Shri T. A. Mirza, learned A.P.P. for the respondents/State. 8. In the show-cause notice as well as in the order externing the petitioner, all four cases registered against the petitioner are referred. This Court on 10.03.2021 issued notice to the respondents. 7. We have heard Shri U. K. Bisen, learned Advocate for the petitioner and Shri T. A. Mirza, learned A.P.P. for the respondents/State. 8. In the show-cause notice as well as in the order externing the petitioner, all four cases registered against the petitioner are referred. In all the four cases referred, the offence alleged against the petitioner is in respect of illegal transportation and theft of sand. In one case the offence has been registered against the petitioner for assaulting the government employee while performing government duty. Though, the first offence registered against the petitioner is of the year 2017, the last case under Section 379 read with 34 of the Indian Penal Code and Section 48(7) of the Maharashtra Land Revenue Code, 1966 has been registered on 09.06.2020. It is pertinent to note that all the cases registered against the petitioner involves illegal transportation and theft of sand. 9. This Court cannot be unmindful of the fact that there is need to have increasing awareness to restore ecological balance and to stop damage being caused to the nature. This Court cannot lose sight of the fact that destructive environmental impact of sand mining has been issue of concern raised by Hon'ble Apex Court in several matters. Illegal sand mining on the river-bed in India has led to severe damage to rivers causing change in river-bed itself over the years. Rivers in India have been affected by alarming rate of unrestricted sand mining, which is damaging the eco-system of the rivers. If this illegal sand mining activities are not stopped by the State and Police Authorities of the State, it will cause serious repercussion on the ecology of the country. 10. In the above backdrop, we have carefully considered the show-cause notice issued by the respondent no. 2; reply filed by the petitioner; order passed by the respondent no. 2 dated 11.01.2021 and the impugned order passed by the respondent no. 1 dated 23.02.2021. The order of externment refers to the allegations of illegal transportation and theft of sand, which are taken into consideration by the externing authority while issuing the order of externment. In the externment order, satisfaction is recorded by the externing authority that due to acts of the petitioner, environment of terror is created in the said village and nearby area. The order of externment refers to the allegations of illegal transportation and theft of sand, which are taken into consideration by the externing authority while issuing the order of externment. In the externment order, satisfaction is recorded by the externing authority that due to acts of the petitioner, environment of terror is created in the said village and nearby area. There is also satisfaction recorded that inspite of execution of bond there is no improvement in conduct of the petitioner as offence under Section 379 read with 34 of the Indian Penal Code and Section 48(7) of the Maharashtra Land Revenue Code has been registered against the petitioner. From the tenor of the order of externment, it is apparent that the externing authority has applied its mind while issuing the externment order. There was sufficient material available with the externing authority to substantiate conclusion that acts of the petitioner are causing harm and danger to the persons and property as per Section 56 of the said Act of 1951. 11. The Apex Court in the case of State of N.C.T. of Delhi Vs. Sanjeev @ Bittoo, (2005) SCC(Cri) 1025 had occasion to consider the scope and ambit of Section 47 of the Delhi Police Act. The said provision is pari materia with Section 56 of the Act of 1951. In the said decision it is observed that it is the existence of material and not the sufficiency of material which can be questioned as the satisfaction is primarily subjective somewhat similar to one required to be arrived at by the detaining authority under the preventive detention laws. The scope of judicial review of administrative orders is rather limited. The consideration is limited to the legality of decision-making process and not legality of the order per se. Mere possibility of another view cannot be ground for interference. It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary the order directing externment should show existence of some material warranting an order of externment. While dealing with the question mere repetition of the provision would not be sufficient. Reference is to be made to some material on record and if that is done, the requirements of law are met. It is not the sufficiency of material but the existence of material which is sine qua non. 12. While dealing with the question mere repetition of the provision would not be sufficient. Reference is to be made to some material on record and if that is done, the requirements of law are met. It is not the sufficiency of material but the existence of material which is sine qua non. 12. On 09.06.2020 the last offence was registered against the petitioner. The order of externment has been passed on 11.01.2021 on the basis of show-cause notice dated 10.08.2020. Therefore, there is live link between the order of externment and the offence registered against the petitioner. 13. It is submitted on behalf of the petitioner that offences alleged against the petitioner are not the offences against human body and therefore action of externment is ultra vires. Perusal of sub-Section 1(b) of Section 56 of the Act of 1951 shows that it enables the externing authority to pass the order in relation to offences under Chapter XVII of the Indian Penal Code.The offences reflected in the externment order are under Section 379 of the Indian Penal Code, which are offences under Chapter XVII of the Indian Penal Code. Therefore, action of externment can be taken against a person on allegation of registration of offence under Chapter XVII of the Indian Penal Code. 14. For the aforesaid reasons, we are satisfied that externing authority has exercised its powers within the parameters of Section 56 of the Act of 1951. Therefore, no interference is called for in the present petition. 15. The Writ Petition is therefore dismissed. Rule is discharged.