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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
R.M. BORDE & A.I.S. CHEEMA, JJ.
Suraj S/o Balbhim Shelke - Petitioner
Versus
The State of Maharashtra, Through Principal Secretary, Home Department, Mantralaya and Ors. – Respondents
CRIMINAL WRIT PETITION NO. 630 OF 2015
Decided On : 15-9-2016
CRIMINAL WRIT PETITION - BOMBAY POLICE ACT, 1951 - SECTIONS 56, 57, 60 - MAHARASHTRA POLICE ACT, 1951 - BOMBAY HIGH COURT APPELLATE SIDE RULES, 1960 - RULE 18(2) - EXPLANATION - ORDER - QUASI-JUDICIAL AUTHORITY - ADMINISTRATIVE ORDER - JUDICIAL REVIEW - SCOPE - SUBJECTIVE SATISFACTION - DUTY TO ACT JUDICIALLY - PROCEDURE - REASONS - DISCLOSURE - EXTERNMENT PROCEEDINGS - PREVENTIVE MEASURE - PUBLIC INTEREST - PUBLIC ORDER - NATIONAL SECURITY - FUNDAMENTAL RIGHTS - RIGHT TO PERSONAL LIBERTY - RIGHT TO FREEDOM OF MOVEMENT - RIGHT TO RESIDE AND SETTLE - REASONABLE RESTRICTIONS - PUBLIC SAFETY - MAINTENANCE OF LAW AND ORDER - PUBLIC MORALITY - DECENCY OR HEALTH - GROUNDS - ALARM, DANGER OR HARM TO PERSON OR PROPERTY - REASONABLE BELIEF OF ENGAGEMENT IN OFFENCE INVOLVING FORCE OR VIOLENCE OR OFFENCE PUNISHABLE UNDER INDIAN PENAL CODE, CHAPTERS XII, XVI OR XVII - ABETMENT OF SUCH OFFENCE - WITNESSES UNWILLING TO TESTIFY IN PUBLIC DUE TO APPREHENSION OF SAFETY OF PERSON OR PROPERTY - PROCEDURE FOR MAKING ORDER OF EXTERNMENT - GENERAL NATURE OF MATERIAL ALLEGATIONS - OPPORTUNITY TO TENDER EXPLANATION - EXAMINATION OF WITNESSES - RIGHT TO COUNSEL - SCOPE OF JUDICIAL REVIEW - INABILITY TO EXAMINE WITNESSES OR REVIEW STATEMENTS - ADMINISTRATIVE FUNCTION - APPELLATE AUTHORITY - STATE GOVERNMENT - SUBJECTIVE SATISFACTION - NO DUTY TO ACT JUDICIALLY - NO OBLIGATION TO GIVE REASONS - WRIT PETITION - MAHARASHTRA POLICE ACT, 1951 - SECTION 60 - APPELLATE ORDER - ADMINISTRATIVE ORDER - NOT AN 'ORDER' UNDER EXPLANATION TO RULE 18 OF CHAPTER XVII OF BOMBAY HIGH COURT APPELLATE SIDE RULES - WRIT PETITION NOT MAINTAINABLE - PETITION RENDERED INFRUCTUOUS.
Fact of the Case:
The petitioner challenged the order passed by the Sub-Divisional Magistrate directing his externment from Ahmednagar district for a period of one year under sections 56(1)(A) (B) and sub-section (2) of the Maharashtra Police Act, 1951, and the order passed by the State Government dismissing his appeal under section 60 of the Act. The issue arose whether the order passed by the State Government under section 60 of the Maharashtra Police Act, 1951, confirming the order passed by the externing authority under sections 56 and 57 of the Act, can be construed as an 'order' within the contemplation of explanation to Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960.
Finding of the Court:
The Court held that the order passed by the State Government under section 60 of the Maharashtra Police Act, 1951, confirming the order passed by the externing authority under sections 56 and 57 of the Act, is an administrative order and not a quasi-judicial order. Therefore, it is not an 'order' within the meaning of explanation to Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, and the writ petition challenging the order is not maintainable.
Issues: 1. Whether the order passed by the State Government under section 60 of the Maharashtra Police Act, 1951, confirming the order passed by the externing authority under sections 56 and 57 of the Act, can be construed as an 'order' within the contemplation of explanation to Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960? 2. Whether the order passed by the State Government under section 60 of the Maharashtra Police Act, 1951, is an administrative order or a quasi-judicial order?
Ratio Decidendi: 1. An order passed by an authority exercising subjective satisfaction, without any duty to act judicially, is an administrative order and not a quasi-judicial order. 2. The order passed by the State Government under section 60 of the Maharashtra Police Act, 1951, confirming the order passed by the externing authority under sections 56 and 57 of the Act, is an administrative order and not a quasi-judicial order, as it is based on the subjective satisfaction of the authority and there is no duty to act judicially. 3. The explanation to Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, applies only to orders passed by judicial or quasi-judicial authorities, and not to administrative orders.
Final Decision: The Court held that the order passed by the State Government under section 60 of the Maharashtra Police Act, 1951, confirming the order passed by the externing authority under sections 56 and 57 of the Act, is an administrative order and not a quasi-judicial order. Therefore, it is not an 'order' within the meaning of explanation to Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, and the writ petition challenging the order is not maintainable. The petition was rendered infructuous as the period prescribed under the impugned order had come to an end.
R.M. Borde, J.
1. The question that is referred for our consideration is, as to “whether the order passed by the State Government, in exercise of powers conferred under section 60 of the Maharashtra Police Act, 1951, confirming the order passed by the externing authority under section 56 and 57 of the Maharashtra Police Act, 1951 can be construed as an ‘order’ within the contemplation of explanation to Rule 18 of chapter XVII of the Bombay High Court Appellate Side Rules, 1960”.
2. In view of explanation to Rule 18 of The Bombay High Court Appellate Side Rules, the expression ‘order’, appearing in clauses 1 to 41 means an order passed by any judicial or quasi-judicial authority empowered to adjudicate under the above mentioned statute. Thus, it is essentially required to examine as to whether the order passed in an appeal by the State Government under section 60 of the Maharashtra Police Act, 1951 is an order passed under quasi-judicial authority or whether it shall be construed as an administrative order.
3. An order directing externment out of Ahemadnagar district is issued by the Sub-Divisional Magistrate, Ahmednagar, directing removal of petitioner from Ahemadnagatr district for a period of one year, in exercise of powers conferred under section 56(1)(A) (B) and sub-section (2) of the Maharashtra Police Act, 1951 on 21.7.2014. An appeal preferred by the petitioner to the State Government under section 60 of the Act has been dismissed on 9.4.2015. The petitioner raised challenge to aforesaid adverse orders in the instant petition. When the petition was placed before learned Vacation Judge for consideration, the office raised an objection in respect of failure of the petitioner to file second set, since according to the Office, in view of the decision of the Division Bench in Criminal Writ Petition No. 2265 of 2007 (reported in 2008 All M.R. Cr.2701) and also considering the observations made by the learned single Judge in Criminal Writ Petition No. 560/2015, the criminal Writ petition is entertain-able by the Division Bench. Learned Vacation Judge did not agree with the view expressed by the learned single Judge dealing with Cr. Writ Petition No. 560/2015 and by order dated 6.5.2015 directed the Registry to place the matter before the Senior Most Judge at the bench, for issuance of proper directions. According to the learned Vacation Judge, the challenge in the matter of Manjeet Singh V/s State of Maharashtra (reported in 2008 All M.R. pager 2701) raised before the division bench in Criminal Writ Petition No. 2265/07 was in respect of an order passed by the externing authority, in exercise of powers conferred under section 57(1)(A) of the Maharashtra Police Act, 1951, directing externment of the petitioner therein. The petitioner, in the above referred matter, did not avail of the remedy of appeal to the State Government and the Writ petition was entertained by the Division Bench, in exercise of powers under articles 226 and 227 of the Constitution of India. According to the learned single Judge, in the instant matter, since the order under challenge is the one passed under section 60 of Maharashtra Police Act, 1951 by the Appellate Authority i.e. State Government, in view of sub-clause 22 of Rule 18(1) of Chapter XVII of the Bombay High Court Appellate Side Rules, the single Judge is empowered to finally dispose of the application under articles 226 and 227 of the Constitution of India. Sub-clause 22 refers to order passed under the Maharashtra Police Act, 1951. Learned single Judge therefore is of the view that, the decision rendered by the State Government, in exercise of powers conferred under section 60 of the Maharashtra Police Act, 1951, being a quasi-judicial order, i.e. an ‘order’ within the meaning of explanation to rule 18 (2) of Chapter XVII of the Bombay High Court Appellate Side Rules, the single Judge is invested with the powers to deal with the petition.
4. The learned single Judge of co-ordinate bench
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