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2022 DIGILAW 1215 (BOM)

Ateeq Ahmed Kamal Ahmed v. State of Maharashtra

2022-04-26

N.J.JAMADAR

body2022
JUDGMENT 1. As the challenge in both the petitions is of identical nature, the petitions are taken up for hearing together. 2. Rule. Rule made returnable forthwith and with the consent of the learned counsels for the parties, heard fnally at the stage of admission. 3. The petitioner in Writ Petition No. 632 of 2022 is a Municipal Councilor of Malegaon Municipal Corporation. A dispute arose over the change of user of the land bearing City Survey Nos.1049 and 1051 situated at Malegaon. The petitioner objected to the proposal of Public Works Department to construct a jogging track running alongwith the periphery of the said land. Instead of dealing with the objections of the petitioner in an objective manner, the respondent No.2 passed an order on 17/2/2022 externing the petitioner from the city of Malegaon for a period of one month, in fagrant violation of the principles of natural justice, purportedly invoking the provisions of sec. 144 of the Code of Criminal Procedure, 1973 ('the Code'), which were wholly inapplicable. Hence, this petition. 4. The petitioner in Writ Petition No. 633 of 2022 is also a Municipal Councilor of Malegaon Municipal Corporation. The petitioner had also objected to the proposed development at City Survey Nos.1049 and 1051, as it would render the open space inadequate for use as "Idgaah". To blunt out his objection, the petitioner was served impugned order, directing him to extern himself from the limits of Malegaon City and Taluka, by unjustifably invoking the provisions contained in sec. 144 of the Code. Hence, this petition. 5. Though, the period of one month has expired, Mr.Bubna, the learned counsel for the petitioner urged that the legality, propriety and correctness of the impugned orders passed by respondent No.2 are required to be examined as they entail civil consequences, and expose the petitioner to further actions and disqualifcations. 6. Mr.Bubna urged that the petitions are required to be allowed on the sole ground that the provisions contained in sec. 144 of the Code do not empower the District Magistrate to extern a person from a place where he ordinarily resides. Sec. 144 of the Code does not vest the District Magistrate with the authority to extern a person, as the object of sec. 144 is to empower the Magistrate to arrest urgent cases of nuisance or apprehended danger. 7. 144 of the Code do not empower the District Magistrate to extern a person from a place where he ordinarily resides. Sec. 144 of the Code does not vest the District Magistrate with the authority to extern a person, as the object of sec. 144 is to empower the Magistrate to arrest urgent cases of nuisance or apprehended danger. 7. Mr.Bubna further submitted that a Division Bench of this Court, in the cases of Narendra Parshuram Patil & Anr. Vs. The State of Maharashtra & Ors.,Cri.Writ Petition (Aurangabad Bench) No.1575 of 2018 dt. 24/7/2019. has explicitly ruled that a person cannot be externed from his native place by invoking the provisions of sec. 144 of the Code. Reliance was also placed on a judgment of Division Bench of this Court in the case of Nilesh Dnyaneshwar Desale Vs. The State of Maharashtra, Cri.Writ Petition (Aurangabad Bench) No.71-2021 with Cri. Writ Petition No.1744-2019 dt.20/1/2021. wherein an identical action was set aside. 8. The aforesaid submission of Mr.Bubna appears well founded. On a plain reading of sec. 144 of the Code, it becomes abundantly clear that the District Magistrate is specially empowered to direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray. The condition precedent for exercise of this power is the subjective satisfaction of the District Magistrate that such action is necessary for immediate prevention of a nuisance or apprehended danger or speedy remedy of such a situation. The power to direct "any person to abstain from a certain act" cannot be construed as the authority to direct a person to remove himself from the place where he ordinarily resides. 9. Such an interference with the personal liberty and fundamental freedoms guaranteed under the Constitution must rest on surer foundations. There are, therefore, legislative measures in the form of sec. 151(3) of the Code of Criminal Procedure, 1973, preventive detention laws and the Maharashtra Police Act, 1951 to address a situation which arises on account of threat to public order. However, recourse to sec. There are, therefore, legislative measures in the form of sec. 151(3) of the Code of Criminal Procedure, 1973, preventive detention laws and the Maharashtra Police Act, 1951 to address a situation which arises on account of threat to public order. However, recourse to sec. 144 to extern a person on the ground that there is an apprehended danger to public tranquility is not legally sustainable. 10. The observations of the Division Bench in the case of Narendra Parshuram Patil & Anr. (Supra) regarding scope of sec. 144 of the Code read as under : "8 The aforesaid provision shows that a person can be prevented from entering a particular area under the aforesaid provision but the provision does not provide for asking a person living in particular area and particularly at his native place to leave that place for a particular period. Though preventive measures can be taken of the nature mentioned in the provision, under this provision a person cannot be externed from his native place. There are provisions under the Maharashtra Police Act like Sec. 56 to 59 providing for externment proceeding..............." 11. The impugned orders are, thus, in excess of the authority vested in respondent No.2 and clearly trampled upon the cherished personal liberty and fundamental freedoms of the petitioners. A declaration that the orders are illegal and void, in the given situation, may be no solace to the petitioners. But such a declaration is imminently warranted so as to ensure that rule of law prevails and the petitioners do not suffer the consequences thereof in any form whatsoever. 12. Hence, the following order : ORDER (i) The Petitions stand allowed. (ii) The impugned orders, dtd. 17/2/2022 passed by respondent No.2 stand quashed and set aside. (iii) Mr.Ateeq Ahmed Kamal Ahmed, the petitioner in Writ Petition No.632 of 2022, and Mr.Salim Ahmed Abdul Rauf, the petitioner in Writ Petition No.633 of 2022, shall not be visited with any consequences of whatsoever nature on the basis of the impugned orders, which are declared void ab initio. 13. Rule is made absolute in the aforesaid terms.