SANDHI MAMAD KALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This reference raises a question of considerable importance in the field of administrative law. The question is whether an authority passing an order of externment under sec. 56 of the Bombay Police Act 1951 (hereinafter referred to as the Act) and the State Government disposing of an appeal against an externment order under sec. 60 of the Act are bound to give reasons in support of the orders respectively made by them or in other words whether there is any obligation on them to make speaking orders. The facts giving rise to the petition are a little material to the determination of the controversy between the parties and they may be briefly stated as follows. The SubDivisional Magistrate Rajkot Sub-Division issued a show cause notice dated 15th October 1970 under sec. 59 of the Act stating that the following allegations were made against the petitioner namely:-

(2.) The petition originally came up for hearing before a Division Bench of this court consisting of A. D. Desai and S. N. Patel JJ. Though several grounds were taken in the petition for challenging the validity of the impugned orders only one ground was pressed on behalf of the petitioner at the hearing of the petition and the rest were given up. The ground that was urged on behalf of the petitioner was that both the Sub-Divisional Magistrate passing the order of externment as also the State Government disposing of the appeal against the order of externment were bound to give reasons in support of the respective orders passed by them and in the absence of reasons the orders made by them were invalid and were liable to be set aside. Now there were two decisions of this Court one reported in Vrajlal Mohanlal v. District Magistrate Rajkot (1962) 3 G.L.R. 807 and the other yet unreported given on 29th January 1971 in Special Civil Application No. 1 of 1971 Mohad Adam Patel v. State of Gujarat where the view had been taken that neither the Sub-Divisional Magistrate passing an order of externment nor the State Government disposing of an appeal against the order of externment is bound to give reasons in support of the order made by it. Each of these two decisions was a decision of a Division Bench of this Court and decisions were therefore binding on A. D. Desai and S. N. Patel JJ. But the learned Judges felt that these two decisions did not lay down the correct law on the point and they found themselves unable to agree with the reasoning of these two decesions. Hence they made the present reference and referred the following three questions for determination by a Full Bench :-

(3.) There were two main grounds on which the petitioner contended that the Sub-Divisional Magistrate was bound to give reasons in support of the order of externment made by him. The first ground was that the power of externment conferred on the Sub-Divisional Magistrate under Section 56 was a quasi-judicial power and since it is a concomitant of every quasi-judicial order that it must disclose ex facie reasons in support of it the Sub-Divisional Magistrate was bound to make a speaking order or in other words give reasons in support of the order of externment made by him. The other ground urged on behalf of the petitioner was that even if the power of externment exercisable by the Sub-Divisional Magistrate was an administrative power Sec. 60 conferred a right of appeal against the order of externment and unless reasons were required to be furnished by the Sub-Divisional Magistrate while passing the order of externment it would not be possible for the externee to effectively exercise the right of appeal conferred upon him and the right of appeal would for all practical purposes be rendered illusory. It was also contended on behalf of the petitioner that in any event even if the order of externment was an administrative order and the conferment of a right of appeal agaist it could not be construed as importing the necessity of giving reasons in support of it the Sub-Divisional Magistrate was yet bound to give reasons in support of the order made by him. The petitioner also urged that irrespective of what may be the character of the order of externment whether it be quasi-judicial or administrative an appeal against it was clearly a quasi-judicial proceeding and the State Government was under a duty to act judicially in disposing of the appeal. The power of the State Government in disposing of the appeal was a quasi-judicial power and the State Government was therefore like any other statutory authority exercising quasi-judicial functions bound to give reasons in support of the order made by it disposing of the appeal. These were broadly the contentions urged on behalf of the petitioner and we shall now proceed to examine them.