(1.) THIS is an application on behalf of one Khudi Prosad Bhakat alias Teli, under Article 226 of the Constitution, for the issue of a writ in the nature of mandamus or certiorari upon the District Magistrate of Birbhum directing him to withdraw the order of externment dated 22 -5 -1950, passed on the applicant and for such other order as to the Court seem fit and proper. On this application, a Rule was issued on the District Magistrate to show cause why such a writ should not be issued upon him and why such further or other order should not be made as the Court thinks fit and proper.
(2.) BEFORE I deal with the merits of the application I must refer to the procedure adopted by the respondents for showing cause. What has been done is that the District Magistrate Birbhum has addressed a letter to the Assistant Registrar of the High Court in its Appellate Side, in which he has stated certain facts and has further asked that the order of externment being of administrative importance, the Legal Remembrancer should be requested to have the State represented in the proceedings on the relevant date fixed for the hearing of the Rule. A11 have before me is this letter, which does not even purport to be addressed to the Court nor does it deal with the petition in proper sequence and, needless to say, is not on oath. And the most objectionable part of it is that the other side has not got a copy of it and at the hearing of the Rule knows nothing about it or the contents thereof. At the hearing of the Rule the respondents have been represented by the Senior Government Pleader and I have had his able assistance. It is however not enough to appear at the trial through a lawyer. It is not at all satisfactory that the respondents in these matters should be allowed to show cause by writing such letters, and, strictly speaking, I should say that the respondents have shown no cause whatsoever. The facts stated in the petition with regard to the mala fides of the respondents give rise to every serious questions of fact. Also, the facts stated in the letter constitute serious charges against the applicant. It would be impossible to deal with such issues of facts unless there are pleadings of some sort containing statements for which someone must take the full responsibility.
(3.) THE learned Government Pleader has stated that one of the reasons why the Government is reluctant to use an affidavit is that it might have to disclose confidential police documents which might be prejudicial to the State. I do not think that this is a reason for proceeding in such an informal manner as has been sought to be done. The application is under Article 226 of the Indian Constitution which, as we all know, concerns very important matters including the liberty of the citizen and the protection of his fundamental rights guaranteed by the Constitution. Such applications are to be taken seriously and in this respect the Government is by no means, a favoured litigant and must comply with the normal procedure to be adopted in all legal proceedings. If in showing cause, the Government is of the opinion that disclosure of any fact or document will be injurious to the State, it is its duty to allege so, and it will be for the Court to decide the point. I am informed that at the moment there are no specific rules as to what procedure should be followed in such cases but until special rules are framed, I think that the ordinary rules should be followed and the allegations in the petition should be answered by an affidavit in opposition filed by the respondent copy whereof should be furnished to the applicant in good time before the date fixed for hearing and the applicant will be at liberty to use a reply, also furnishing copies to the respondent.