HARI SINGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this Writ Petition the order of externment passed by the Sub- Divisional Magistrate, Degloor, dated 18-9- t986 under section 56 of the Bombay Police Act is challenged on various grounds. It appears that against this order an appeal was filed by the externee, which came to be dismissed by the State Government by an order dated 24th December 1986. Therefore, this appellate order is also challenged in this Writ Petition. It is contended by Mr. Pathak, the learned Counsel appearing for the Petitioner, that the action has been taken by the Respondents is mala fide exercise of the power. In the Petition specific allegations are made against Respondent No. 3 Premchand Mahajan, the Circle Inspector of Police, Ahmednagar. None of the Respondents has chosen to file any reply and Respondent No. 3 has not denied any of the legations made. Therefore, obviously, they are deemed to be admitted. He then contended that the Respondent-Police Officers had defend to anyhow harass the Petitioner for his political activities. This harassment Is writ large. Every now and then either the shaptor cases are instituted against him or he is falsely involved in other criminal cases in which either he is acquitted or ultimately the Police is required to file A summary. When this harassment was not successful, recourse was taken to the Bombay Police Act. Initially, notice under section 56 of the Act was issued which was received by the externee on 22nd November 1985 cataloguing certain cases. In the form used for issuing the notice at several places the blank is maintained. The notice is based on convictions when in face the petitioner was either acquitted or A summary was filed. For the reasons best known to the authorities the said notice was not pursued and a second notice under section 56(1) (a) and (b) was issued which is dated 22nd August 1986. In this notice also there are several mistakes. It is based on the activities of the extreme for the period from 1970 to 1985, though in subsequent paragraphs it is restricted to the period from 19O to 1984. In spite of this, in the order of externment, again it was mechanically reproduced. Then in paragraph 2 of the externment order it is stated that the extreme creates communal tension among Hindu and Muslim communities by one way or the other which jeopardises the peaceful life of the public in general. This was not the case in the show cause notice. Therefore, in substance it is also contended by Mr. Pathak that the order is also vitiated by total non-application of mind.

(2.) We find much substance in these contentions. For the reasons best known to the Respondents, they have not chosen to file any reply to the averments made in the Petition. Very serious allegations were made by the Petitioner against Respondent No. 3 Premchand Mahajan. He too has not denied the allegations. Therefore, by taking recourse to the law of pleadings, it could safely be held that the allegations of mala fides made in the Petition are deemed to be admitted. But instead of resting our order on that basis, we will prefer to deal with the contentions raised by Mr. Pathak on merit and not decide the question of mala fides. So far as the merits or the controversy arc concerned, is more Shan clear that the externment order is based on an additional ground that the externee creates communal tension among the Hindu and Muslim communities. This was not the allegation made in the show cause notice. Therefore, while passing the externment order, the detaining authority has relied upon an additional material, which was not the subject matter of the show cause notice. The Petitioner had no opportunity to show cause qua the said allegation. Thus, in substance, the order of externment is based on extraneous material not disclosed in the show cause notice. Since the order of externment is based on a subjective satisfaction of the externing authority, it is difficult to speculate as to whether the impugned order could have been passed if this extraneous material is excluded from consideration. In these circumstances, we have no other alternative but to hold that the order of externment passed by the Sub-Divisional Magistrate, Degloor, dated 18-9-1986 was wholly-illegal. For the same reasons, therefore, the order passed by the State Government in appeal must also fail.

(3.) In the result, therefore, the rule is made absolute and the order of externment passed by the Sub-Divisional Magistrate, Degloor, is set aside.