The court emphasized that an externment order must be based on valid and relevant material as required by the law, and the absence of such material renders the order illegal.

JUDGMENT

Sunil B. Shukre, J. - Heard. Rule. Rule made returnable forthwith.

2. Heard finally by consent of the learned counsel appearing for the parties.

3. The petitioner has questioned the legality and correctness of the order dated 14.10.2010, passed by respondent No.2 thereby externing the petitioner from the limits of Amravati district for a period of two years. This order has been passed in exercise of the power conferred upon respondent No.2 under Section 56(1)(b) of the Maharashtra Police Act. Learned counsel for the petitioner submits that this order not just infringes on the fundamental freedom of movement guaranteed to the petitioner but, does it so in an arbitrary manner without there being available any sufficient material warranting such externment of the petitioner. This is the reason why he submits that the petitioner is justified in directly approaching this Court by invoking Article 226 jurisdiction, instead of filing statutory appeal before the Divisional Commissioner.

4. Ms Jaipurkar, learned A.P.P. submits that the petitioner ought to have approached to the Divisional Commissioner and even otherwise, the order can be considered to be properly passed, as there is at least a criminal history created against the petitioner which would show that his activities are dangerous and are required to be brought under control by passing an externment order.

5. As regards the failure of the petitioner to avail of the alternate remedy, the learned counsel for the petitioner has relied upon a view taken by Division Bench of this Court in the case of Umar Mohamed Malbari Vs. K. P. Gaikwad, Dy. Commissioner of Police & Anr., (1988) MhLJ 1034. Learned A.P.P. submits that although the Division Bench has taken a view that in spite of failure to avail of alternate remedy, a writ Court can entertain such a grievance under Article 226 of the Constitution of India it has to be understood in the context of the facts and circumstances of each case. She further submits that generally, there is affected fundamental freedom of movement whenever an order of externment is passed but, it is not the case that every time this happens, the externee must not avail of the alternate remedy and may come directly before the High Court by invoking its jurisdiction under Article 226 of the Constitution of India. After all, she further submits that it is in the discretion of the High Court as to in which cases such an exercise be permitted and in which cases it be refused. According to her, this is a fit case wherein such an exercise must not be permitted.

6. In case of Umar Mohamed Malbari (Supra), it has been held that the rule about the failure to exercise an alternate remedy when one is an existence is basically a rule which relates to the discretion of the Court and therefore, such rule would never barr the jurisdiction of the High Court to entertain and grant the petition filed under Article 226 of the Constitution of India. The relevant observations as they appear in paragraph No.9 are reproduced thus :-

"In our judgment, there is no merit in this contention inasmuch as the Rule about the failure to exercise an alternative remedy when one is in existence is a Rule relating to the discretion of the Court and that Rule does not act as a bar to the jurisdiction of the Court to entertain and grant petition. Therefore, the fact that the petitioner has not exhausted all his remedies does not bar the jurisdiction of the Court to entertain and dispose of the petition but, is a factor to be taken into account for the purpose of considering whether the discretion should or should not be exercised in favour of the petitioner. The rule that the High Court will not issue a prerogative writ when an alternative remedy is available does not apply when a petitioner comes to the Court with an allegation that his fundamental rights have been infringed. When an order of externment is passed against the petitioner, he can undoubtedly come to this Court with a writ pet