JUDGMENT - A.D. MANE, J.:---In this writ petition, which is filed under Article 226 of the Constitution of India there involves a short but important question regarding procedure prescribed under section 59 of the Bombay Police Act, 1951 (hereinafter referred to as the Act). By this order dated December 1, 1989 the Sub-Divisional Magistrate, Aurangabad, who is respondent No. 2 herein, has passed the order of externment under section 56(1)(a) of the Act, against the petitioner, requiring him to remove himself outside the district of Aurangabad, for a period of two years. The petitioner has filed his appeal under section 60 of the Act to the State Government-respondent No. 1, but his appeal has been dismissed on March 23, 1990. The petitioner is challenging these orders in this writ petition.

2. The petitioner is a permanent resident of Bidkin, Tahsil Paithan, District Aurangabad. The petitioner has stated that he is a active social worker and also political worker of Congress (1). He is a member of Panchayat Samiti Paithan (Bidkin circle) and also a member of Gram Panchayat, Bidkin for many years.

3. It may be stated that the respondent No. 2 is the Sub-Divisional Magistrate, Aurangabad who is the externing authority under section 56 of the Act. The respondent No. 3 is the Sub-Divisional Police Officer (Rural) Aurangabad. The respondent No. 3 has issued a show-cause notice on August 15, 1989 under section 59 of the Act, calling upon the petitioner to show cause why be should not be externed from districts of Aurangabad, Ahmednagar and Jalna for a period of two years.

4. The petitioner submitted his written statements along with certain documents on September 18, 1989 to show cause to the respondent No. 3 inter alia denying the material allegations levelled against him in the show cause notice.

5. It appears that the respondent No. 3 acting under the direction of the respondent No. 2 has held enquiry and sent the entire record to respondent No. 2, who ultimately passed the externment order after considering the entire material so sent to him.

6. Now, in the petition the petitioner has averred that the respondent No. 2 has not given him any opportunity of being heard, although he has shown cause to the show cause notice issued by the respondent No. 3. This statement of fact as appearing in the petition has not been in any way controverted by the respondent by filing any affidavit in reply. The learned Additional Public Prosecutor, has however, fairly conceded that no personal hearing was offered to the petitioner, by respondent No. 2, before passing the ultimate order of externment under section 56(1)(a) of the Act.

7. Mrs. Chincholkar, learned Advocate appearing for the petitioner, therefore, argued that the order of externment must get vitiated because there has been violation of section 59 of the Act. According to the learned Advocate for the petitioner, it is incumbent on respondent No. 2 to give personal hearing before the impugned order was passed, even though respondent No. 3 has given him the opportunity to show cause.

8. Mr. Bhapkar, learned Additional Public Prosecutor, on the hand, submitted that since the petitioner has been given opportunity of being heard by respondent No. 3, there was no necessity for respondent No. 2 to give him further opportunity of being heard, because the impugned order was passed in view of the provisions contained in section 59 of the Act.

9. In the facts and circumstances of the case important question which requires consideration is whether it is obligatory on the part of the externing authority to hear the proposed externee either in person or through his lawyer under section 59 of the Act before ultimate order of externment under section 56 of the Act is passed, irrespective of the fact that the proposed externee has been given such an opportunity of being heard by the officer subordinate of the externing authority. In order to appreciate this question, we may set out relevant part of se

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