21 April 2022 2:00 PM GMT
A full bench of the Bombay High Court on Thursday held that the Divisional Commissioner's orders on externment under the Maharashtra Police Act, 1951 are not administrative orders but are quasi-judicial in nature and the officer is duty-bound to give reasons for the same. Consequently, the matters challenging the order passed under Section 60 of the Maharashtra Police Act, 1951 would...
(i) The power under Section 60 of the Act of 1951 is quasi judicial in nature and the orders passed under that Section are quasi judicial orders.
(ii) There is a duty to give reasons, at least in brief, while disposing the appeals under Section 60 of the Act of 1951.
The Bench comprising of Justices SS Shinde, Prakash D. Naik and Sarang V. Kotwal was hearing a reference made by a Division Bench (of Justices Nitin Jamdar and Sarang V. Kotwal), which did not agree with the view of another Division Bench in the case of Suraj Balbhim Shelke Vs. State of Maharashtra & others, that held that an externment appeal was an administrative order and it did not warrant any reasons.
In Suraj's case the bench held that, the duty to act judicially would be clearly excluded. It was further observed that there was no obligation to record reasons. This obligation can not be imported in Section 60 of the Act of 1951 regarding the appellate power exercisable by the State Government while disposing off the appeal.
Suraj's case is based mainly on the judgment of a Full Bench of Gujarat High Court in the case of Sandhi Mamad Kala Vs. State of Gujarat, 1973 GLR 384 (FB).
The full bench noted that "the Division Bench in Suraj's case missed the crucial amendment made in 1995 giving power to the appellate authority to remand the case for disposal."
The bench said,
"we differ from the observations made in Sandhi Kala's case regarding nature of power under Section 60 of the Act of 1951… We make it clear that we are not deciding whether the order passed by the externing authority is administrative or quasi judicial. The point of reference is restricted to the order passed under Section 60 of the Act of 1951 which is an appellate order. According to us, the Appellate Authority is required to act independently. The Authority is not empowered to pass the order at the first instance. The externment order can be confirmed, set aside, modified or the matter can be remanded back. But, these are independent functions."
The bench noted that the observation of the Supreme Court in the case of Indian National Congress (I) Vs. Institute of Social Welfare and others, (2002) 5 SCC 685 that "where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the authority a quasi judicial authority", is squarely applicable to the procedure which is required to be followed by the Appellate Authority under Section 60 of the Act of 1951.
The Appellate Authority is even empowered to carry out such further enquiry as deemed necessary apart from the requirement of giving reasonable opportunity to the Appellant to be heard personally or by a pleader.
In light of these, the full bench was of the opinion that the power under Section 60 of the Act of 1951 is quasi judicial in nature and the orders passed under that Section are quasi judicial orders.
To answer the next question, the bench referred to the judgement in Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra, AIR 1973 SC 630, wherein the Supreme Court had observed that neither the externing authority nor the State Government in appeal can be asked to write reasoned order in the nature of a judgment. The full bench noted that the key words are "a reasoned order in the nature of a judgment". The State Government in appeal was not expected to write reasoned order in the nature of a judgment, but, that did not mean that no reasons whatsoever were required to be given.
Also Read: Authority Under Maharashtra Police Act Can Extern Gang Members From Area Larger Than Where Criminal Activities Are Committed: Bombay High Court
Case Title: Mayur Vasant Sonawane v. State of Maharashtra & Anr.
Citation:2022 LiveLaw (Bom) 152
Click Here To Download Judgment
(Inputs by Sharmeen Hakim)