ASHRAFMIYA SAIDUMIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution praying for a writ of mandamus or in the nature of mandamus or a writ of certiorari or any other appropriate writ order or direction restraining the first and the second respondents from interfering with the right of the petitioner Ashrafmiya Saidumiya to stay at Mahuva or to move in the districts of Bhavnagar and Amreli by quashing and setting aside the order of the first respondent dated 15th April 1961 and the order of the second respondent dated 19th August 1961.

(2.) The petitioner is a citizen of India and was a resident of Mahuva District Bhavnagar. Respondent No. 1 is the Sub-Divisional Magistrate Mahuva Sub-Division of the district of Bhavnagar. Respondent No. 1 issued a notice under sec. 56 clauses (a) and (b) of the Bombay Police Act 1951 (hereafter called the Act) calling upon him why he should not be externed from the districts of Bhavnagar Amreli Surendranagar Rajkot and Junagadh. In response to this notice the petitioner appeared before respondent No. 1 and filed a written-statement on 29th of November 1960 and a certain document. Respondent No. 1 held an enquiry into the matter in which petitioner examined 23 witnesses. Ultimately on 15th April 1961 respondent No. 1 passed the impugned order by which he externed the petitioner only from the districts of Bhavnagar and Amreli. Aggrieved by this order the petitioner preferred an appeal to the second respondent the State of Gujarat. The appeal was heard in July 1961 and it was dismissed on 19th August 1961. Thereafter the petitioner presented the present petition to this Court.

(3.) Mr. Thakker raised six points in support of this petition. Three of the points however had not been taken up in the petition and they were new points altogether. These three points were (1) that the allegations in the notice issued under sec. 56(a) and (b) of the Act were vague and did not afford a reasonable opportunity to the petitioner to tender an explanation in regard to them; (2) that the respondent No. 1 in passing the impugned order had relied on circumstances of which no notice was given to the petitioner before the order was passed; and (3) that the respondent No. 1 had not arrived at any positive finding as to whether he was satisfied that the case against the petitioner fell within the purview of clause (a) or clause (b) of sec. 56 of the Act. We did not however permit Mr. Thakker to raise these three points. We felt that if these three points were permitted to be raised at this stage it would spring a surprise on the respondents. As these points had not been mentioned in the petition it is quite clear that the two respondents did not have a chance of having their say in respect of these three points. Under the circumstances these three points need not be considered by us. The other three points which were raised and argued before us were (1) that the notice and the order were without jurisdiction inasmuch as the respondent No. 1 had not been invested with the necessary power to extern the petitioner from an area which was not comprised in the district of Bhavnagar; (2) that both the respondents had failed to apply their mind to the points of dispute between the parties before passing the impugned orders; and (3) that in any case the two respondents did not give any ground nor are there any materials on the record from which it can be found as to why the petitioner was being externed not only from the district of Bhavnagar but from the contiguous district of Amreli.