'Orders Passed To Facilitate Private Commercial Activity': Gujarat High Court Raps Authorities, Sets Aside Father-Son Externment Orders

The Bench of Justice Paresh Upadhyay was hearing the pleas filed by the son and his father, challenging identical externment orders passed by the Sub-Divisional Magistrate, Navsari dated 04^th February 2020.

Observations of the Court

The Court noted that Father-son duo are office bearers of a co-operative housing society in which they are residing and that there was a dispute, which was essentially between the society where the petitioners are residing and the adjoining society, where constructions work was going on.

The Court further observed that the Externing Authority asked the father-son duo to settle the dispute with the contractor and since that settlement did not materialise, the externment order was passed.

"These facts are borne out from the contents of the order passed by the Appellate Authority, more particularly the stand of the SDM, as reflected therein," noted the Court.

Further, the Court said,

"These statements would go to show that the SDM was holding the brief for the contractor, and since the petitioners did not settle with the contractor, they - the father and son both are externed for a period of one year."

The Court further found that the powers under Sections 56(b) of the Gujarat Police Act, could not have been exercised by the Externing Authority to facilitate the commercial activity of a private individual.

Apart from this, the Court was of the view that even the Appellate Authority casually dealt with the appeals. However, since the externment period is about to be over, the Court didn't find it appropriate to take up further inquiry in this regard.

The Court also observed that the impugned externment orders couldn't be said to have been passed in good faith, and therefore, while setting aside the impugned orders, the Court kept open the aspect of compensation to the petitioners.

Significantly, the Court said,

"The glaring aspect of the matter is that, for the entire year, the father and son - both the male members of the family, in this CORONA lock down period were asked to stay away from their home, leaving lady family members and children alone at home. All these aspects would be relevant to weigh, what amount of compensation should be granted, in appropriate proceedings."

Lastly, the Court said,

"The question of awarding cost/compensation to the petitioners is kept open. The said aspects may be gone into by appropriate forum, in appropriate proceedings as may be taken up by the petitioners."

Case title - Digesh Harishchandra Solanki & Harishchandra Motilal Solanki v. State of Gujarat and Ors. [Special Criminal Application No. 6430 of 2020 along with Special Criminal Application No. 6111 of 2020]

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