Suraj S/O Balbhim Shelke vs The State Of Maharashtra & Ors
2016 Latest Caselaw 5261 Bom

                                             {1}
                                                                    CR.wp 630.15.odt
                 IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                            BENCH AT AURANGABAD




                                                                             
                    CRIMINAL WRIT PETITION NO.630 OF 2015




                                                     
     Suraj S/o Balbhim Shelke,
     Age: 24 years, occu: business,
     R/o Manik Nagar, Plot No.14,
     Tq. & Dist. Ahmednagar                                              Petitioner




                                                    
              Versus


     1        The State of Maharashtra,
              Through Principal Secretary,




                                        
              Home Department,
              Mantralaya, Mumbai - 32

     2
                             
              The Divisional Commissioner,
              Nashik Division, Nashik
                            
     3        The Sub Divisional Magistrate,
              Nagar division, Ahmednagar

     4        The Sub Divisional Police Officer,
              Nagar Town, Ahmednagar,
      

              Dist. Ahmednagar                                          Respondents
   



     Mr. N.V. Gaware h/f Mr. A.H. Mahajan advocate for the petitioner
     Mr. A.R. Borulkar, Assistant Govt. Pleader for Respondent State
                                  _______________

                                      CORAM :      R.M. BORDE &





                                                    A.I.S. CHEEMA, JJ

                                                   Reserved on : 4.12.2015.
                                                   Pronounced on: 15.9.2016.





     JUDGMENT

(Per: R.M. Borde, J)

1. The question that is referred for our consideration is, as to

"whether the order passed by the State Government, in exercise

of powers conferred under section 60 of the Maharashtra Police

{2} CR.wp 630.15.odt Act, 1951, confirming the order passed by the externing authority

under section 56 and 57 of the Maharashtra Police Act, 1951 can

be construed as an 'order' within the contemplation of explanation

to Rule 18 of chapter XVII of the Bombay High Court Appellate

Side Rules, 1960".

2 In view of explanation to Rule 18 of The Bombay High Court

Appellate Side Rules, the expression 'order', appearing in clauses

1 to 41 means an order passed by any judicial or quasi-judicial

authority empowered to adjudicate under the above mentioned

statute. Thus, it is essentially required to examine as to whether

the order passed in an appeal by the State Government under

section 60 of the Maharashtra Police Act, 1951 is an order passed

under quasi-judicial authority or whether it shall be construed as

an administrative order.

3 An order directing externment out of Ahemadnagar district

is issued by the Sub-Divisional Magistrate, Ahmednagar, directing

removal of petitioner from Ahemadnagatr district for a period of

one year, in exercise of powers conferred under section 56(1)(A)

(B) and subsection (2) of the Maharashtra Police Act, 1951 on

21.7.2014. An appeal preferred by the petitioner to the State

Government under section 60 of the Act has been dismissed on

9.4.2015. The petitioner raised challenge to aforesaid adverse

orders in the instant petition. When the petition was placed before

learned Vacation Judge for consideration, the office raised an

{3} CR.wp 630.15.odt objection in respect of failure of the petitioner to file second set,

since according to the Office, in view of the decision of the

Division Bench in Criminal Writ Petition No.2265 of 2007 (reported

in 2008 All M.R. Cr.2701) and also considering the observations

made by the learned single Judge in Criminal Writ Petition

No.560/2015, the criminal Writ petition is entertainable by the

Division Bench. Learned Vacation Judge did not agree with the

view expressed by the learned single Judge dealing with Cr. Writ

Petition No.560/2015 and by order dated 6.5.2015 directed the

Registry to place the matter before the Senior Most Judge at the

bench, for issuance of proper directions. According to the learned

Vacation Judge, the challenge in the matter of Manjeet Singh V/s

State of Maharashtra (reported in 2008 All M.R. pager 2701)

raised before the division bench in Criminal Writ Petition No.

2265/07 was in respect of an order passed by the externing

authority, in exercise of powers conferred under section 57(1)(A)

of the Maharashtra Police Act, 1951, directing externment of the

petitioner therein. The petitioner, in the above referred matter,

did not avail of the remedy of appeal to the State Government

and the Writ petition was entertained by the Division Bench, in

exercise of powers under articles 226 and 227 of the Constitution

of India. According to the learned single Judge, in the instant

matter, since the order under challenge is the one passed under

section 60 of Maharashtra Police Act, 1951 by the Appellate

Authority i.e. State Government, in view of sub-clause 22 of Rule

{4} CR.wp 630.15.odt 18(1) of Chapter XVII of the Bombay High Court Appellate Side

Rules, the single Judge is empowered to finally dispose of the

application under articles 226 and 227 of the Constitution of India.

Sub-clause 22 refers to order passed under the Maharashtra

Police Act, 1951. Learned single Judge therefore is of the view

that, the decision rendered by the State Government, in exercise

of powers conferred under section 60 of the Maharashtra Police

Act, 1951, being a quasi-judicial order, i.e. an 'order' within the

meaning of explanation to rule 18 (2) of Chapter XVII of the

Bombay High Court Appellate Side Rules, the single Judge is

invested with the powers to deal with the petition.

4 The learned single Judge of co-ordinate bench, in identical

circumstances, dealing with Cr. Writ Petition No.560/2015 by

order dated 30.4.2015, referring to the Judgment of the Division

Bench in the matter of Manjeetsing (supra) had recorded that, the

petition is entertainable by the Division Bench. The papers of

instant petition were placed before the Honourable Acting Chief

Justice, who directed constitution of the Division Bench to deal

with the issue raised by the learned single Judge by order dated

6.5.2015.

5 In the matter of Manjeet Sing, the challenge was raised to

an order passed by the externing authority in exercise of powers

conferred under sections 56 and 57 of the Maharashtra Police Act,

1951 before the High Court directly, without availing the remedy

{5} CR.wp 630.15.odt of an appeal under section 60 of the Act. A preliminary objection

as such, was raised on behalf of the State that, the order

impugned therein having been passed in the quasi judicial

proceedings, in terms of rule 18(23) of Chapter XVII of the

Bombay High Court Appellate Side Rules, 1960, the matter will

have to be heard and decided by the learned single Judge. The

Division Bench took a view that, the order impugned neither

discloses adjudication of any dispute, nor it discloses any

pronouncement of decision on any right of the concerned party. It

is merely a prohibitory action by the externing authority for

maintenance of law and order, within the jurisdiction of the

concerned authority. Undoubtedly, the proceedings require the

authority to comply with the rule of fair play and offering an

opportunity to the concerned party to put forth his say in the

matter, before the person is externed from any area. Undoubtedly

the action results in affecting the civil rights of the party.

However, the action nowhere includes any decision on any right of

the party by the concerned authority, nor any adjudication

thereof, besides that the order is based on subjective satisfaction

of the concerned authority.

6 The Division Bench, in the matter of Manjeetsingh dealing

with the issue as to whether the decision of the authority can be

said to be judicial or purely administrative, referred to the

observations in the Judgment of the Supreme Court in case of

{6} CR.wp 630.15.odt Jasvant Sugar Mills Limited (AIR 1963 SC 677) as below:-

" .. A judicial decision is not always the act of a judge or a tribunal invested with power to determine

questions of law or fact; it must however be the act

of a body or authority invested by law with authority to determine questions of disputes affecting the rights of citizens and under a duty to act judicially. A

judicial decision always postulates the existence of a duty laid upon the authority to act judicially. Administrative authorities are often invested with

authority or power to determine questions, which affect the right of citizens. The authority may have

to invite objections to the course of action proposed by him, he may be under a duty to hear the

objectors, and his decision may seriously affect the rights of citizens but unless in arriving at his decision he is required to act judicially, his decision will be

executive or administrative. "

The Division Bench referred to the Judgment in the matter

of Province of Bombay versus Kausldas S. Advani & others (1950)

SCN 222 , wherein, it has been observed in para No.13 as under

" . . . . In the performance of an executive act, the authority has certainly to apply his mind to the

materials before him; but the opinion he forms is a purely subjective matter which depends entirely upon his state of mind. It is of course necessary that he must act in good faith, and if it is established that he was not influenced by any extraneous consideration, there is nothing further to be said about it. In a judicial proceeding, on the other had, the process of

{7} CR.wp 630.15.odt method of application is different. "

7 In the matter of Sandhi Mamad Kala Versus. State of

Gujrath (1973) (14 GLR 384), the full bench of the Gujrath High

Court has concluded that, the order passed under section 56 and

the preventive action taken by taking recourse to provisions of the

Maharashtra Police Act, 1951 under the relevant part of

Maharashtra Police Act, 1951 is in exercise of administrative

powers by the authority, as it is observed, where an

administrative power is exercised by the statutory authority and

exercise of such power involves civil consequences to a person,

the statutory authority must disclose the ground on which the

exercise of powers is based.

8 When one speaks of ground, in this context, one means, the

grounds as distinguished from the reasons in support of the

grounds. Therefore, in case of externment orders, it would be

sufficient to indicate the general nature of material allegations on

which the externing authority has come to a conclusion that, the

case fulfills particular part of section 56 and preventive action

under that part should be taken by it.

9 Considering provisions of section 60 of Maharashtra Police

Act, 1951, the State Government, dealing with an appeal is

mandated to give a reasonable opportunity to the appellant to

hear either personally or by a pleader, advocate, attorney and

{8} CR.wp 630.15.odt after such further enquiry, if any, as it may deem necessary,

confirm, vary, cancel or set aside the order appealed against and

make its order accordingly. The provisions providing for an appeal

do not mandate the appellate authority to record the reasons in

support of the final conclusion although the recording of reasons

is desirable. What is required on the part of the State Government

is to extend a reasonable opportunity to the appellant to hear

either personally or by a pleader or by an Advocate or attorney

and secondly the appellate authority shall, after such further

enquiry, if any, as deemed necessary, may either confirm or vary

or cancel the order, since the order passed by the externing

authority is under challenge before the appellate forum i.e. the

State Government, the material relied upon by the externing

authority for issuance of the order is available with the State

Government i.e. the appellate authority and it would be obligatory

on the part of the appellate authority to pass an appropriate order

on perusal of the record and after extending an opportunity of

hearing to the appellant.

10 Merely because the appellate authority is required to

determine the question affecting the civil rights of the appellant,

that itself does not make the determination judicial. It is the duty

to act judicially, which invests it with that character. What

distinguishes an act judicial from administrative is therefore the

duty imposed upon the authority to act judicially.

{9} CR.wp 630.15.odt

11 The decision of the Supreme Court in the matter of Board of

Higher Secondary School and Intermediate Education, U.P.

Alahabad versus G.Gupta reported in AIR 1962 SCC 1110 is

relevant for consideration. Respondents in the aforesaid matter,

objecting to the order passed by the appellant directed

cancellation of the results and debarred them from appearing at

the examinations. The High Court ruled in their favour. As such,

the matter was carried by the Board of Higher Secondary and

Intermediate Education to the Supreme Court. The question that

was raised before the Apex Court was, as to whether there was

any duty cast on the appellate committee, under the Act and the

Regulations to act judicially and whether it is a quasi judicial

body. What constitutes a quasi judicial act, is discussed in the

matter of Province of Bombay V/s Kusaldas S. Advani referred

supra, wherein, two tests are laid down :

(I) That if a statute empowers an authority not being a

Court in the ordinary sense, to decide the dispute

arising out of a claim made by one party under the

Statute which claim is opposed by another party and

to determine the respective rights of the contesting

parties who are opposed to each other, there is a lis

and prima facie, in absence of anything in the statute

to the contrary, it is the duty of the authority to act

judicially and the decision of the authority is quasi

{10} CR.wp 630.15.odt judicial act.

(II) That if a statutory authority has power to do any act

which will prejudicially affect the subject, then

although there are no two parties apart from authority

and the contest is between the authority proposing to

do the act and the subject opposing it, the final

determination of the authority will yet be quasi

judicial act provided the authority is required by the

statute to act judicially. In other words, while the

presence of two parties besides the deciding authority

will prima facie and in the absence of any other factor

impose upon the authority the duty to act judicially,

the absence of two such parties is not decisive in

taking the act of the authority out of the category of

quasi judicial act if the authority is nevertheless

required by the statute to act judicially.

12 In the matter of Subhash Kool V/s Daund Taluka Sahakari

Dudh Utpadak Sangh (2006(4)) Bom. Cases Reporter 607, the

matter in issue was, as to whether the order passed in exercise of

powers under section 4 of the Maharashtra Cooperative Societies

Act, 1960 can be construed as a quasi judicial order. The Division

Bench referred to various Judgments in paragraph Nos.6 to 14

which are quoted as below:-

{11} CR.wp 630.15.odt

"6. The contention of the appellant is that the order dated 14.10.2005 was not passed under any of the

provisions of the said Act but merely in furtherance of the Government policy revealed from the said

Government Resolution, Referring to clause Nos.10 t 13 r/w clause 6 of the said Government Resolution, it was argued that the act of opening of the bank

account and the collection of milk in the specified areas are in terms of the Government policy comprised under the said Government Resolution and

have nothing to do with the statutory provisions comprised under the said Act. The provisions of the

above referred clauses apparently disclose the policy of the Government in relation to registration of the

milk producers society. Besides the Clause 10 of the said Government Resolution specifically refers to the permission to be in consonance with the policy of the

Government and not on the basis of the objective

appreciation of the materials placed before such authority. Besides, at times there could be only one applicant before the authority and there may not be a

contest in the form of lis between two parties for the purpose of registration of the milk producers society. Therefore, by no stretch of imagination it can be said that the order passed in such proceedings would be

said to be a quasi judicial order.

7. In (R. v. Manchester Legal Aid Committee) 1, reported in 1952 (1) All England Reports 480, it was held that when the decision of an administrative body is actuated in whole or in part by questions of policy, the duty to act judicially may arise in the course of arriving at such decision. Thus, if, in order to arrive at

{12} CR.wp 630.15.odt a decision, though the authority can entertain proposals and objections, but has to consider evidence, then there is a duty to act judicially in the

course of such inquiry. It was specifically observed in the said decision that an administrative body in

ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of and are not in accordance

with the practice of a Court of law. At the same time, it was also observed that, if an administrative body in arriving at its decision at no stage has before, it any

form of lis and throughout has to consider the

question from the point of view of policy and expediency, it cannot be said that it is under a duty at

any stage to act judicially.

8. In the (Advani Province of Bombay v. K.S. Advani), reported in A.I.R. 1950 S.C. 222, it was held

that the procedure for investigation of facts or for reception of evidence may vary according to the

requirements of a particular case. There need not be any hard and fast rule in such matters, but the decision which the authority arrives at, must not be

his subjective, personal or private opinion. It must be something which conforms to an objective standard or criterion laid down or recognized by law, and the

soundness or otherwise of the determination must be capable of being tested by the same external standard. This is the essence of a judicial function which differentiates it from an administrative function; and whether an authority is required to exercise one kind of function or the other depends entirely upon the provisions of the particular enactment.

{13} CR.wp 630.15.odt

9. In (Radeshyam Khare and another v. The State of Madhya Pradesh and others) 3, reported in A.I.R.1959 S.C. 107, it was held that three requisites

are to be satisfied in order to classify an act of a body to be a judicial act and they are: the body must have

legal authority, it must be to determine the questions affecting the rights of the parties and it must have the duty to act judicially. The Apex Court clearly ruled

that the determining test to ascertain whether an act authorized by statute is a quasi-judicial act or an administrative act is whether the statute has

expressly or impliedly imposed upon the statutory

body the duty to act judicially. The question whether or not there is a duty to act judicially must be decided

in each case with reference to the facts and circumstances of that particular case and the construction of the particular statute with the

assistance of the general principles laid down in judicial decisions.

10. I (Board of High School & Intermediate Education, others U.P. Allahabad v. Ghanshyam Das

Gupta and others) 4, reported in A.I.R. 1962 S.C. 1110, it is held that though there is no express provision in the U.P. Intermediate Education Act or

the Regulations framed thereunder casting a duty on the Examination Committee to act judicially, the manner of the disposal, which requires it to be on the basis of the material placed before it, and considering the serious effects of the decision of the Examination Committee on the examinee concerned, it leads to the conclusion that a duty is cast on the Examination Committee to act judicially, particularly as it has to

{14} CR.wp 630.15.odt decide objectively certain facts which may seriously affect the rights and careers of the examinees, and therefore, though there are no two parties, apart from

the authority and the contest is between the authority proposing to do the act and the subject opposing it,

the final determination of the authority would yet be a quasi judicial act.

11. In (Jaswant Sugar Mills Ltd., Meerut v. Lakshmi Chand and others), reported in A.I.R. 1963 S.C. 677, it was held that:

The authority may have to invite objections to the course of action proposed by him, he may be under a

duty to hear the objectors, and his decision may seriously affect the rights of the citizens but unless in

arriving at his decision he is required to act judicially, his decision will be executive or administrative. Legal authority to determine questions affecting the rights

of citizens, does not make the determination judicial;

it is the duty to act judicially which invests it with that character. What distinguishes an act judicial from administrative is therefore the duty imposed upon

the authority to act judicially.

12. In (Dwarka nath v. Income-tax Officer, Special another Circle, D-ward Kanpur and another), reported

in A.I.R. 1966 S.C. 81, it was held that: The provisions of a statute may enjoin on an administrative authority to act administratively or judicially. If the statute expressly imposes a duty on the administrative body to act judicially, it is a clear case of a judicial act. But the duty to act judicially may not be expressly conferred but may inferred from

{15} CR.wp 630.15.odt the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the

objective criterion to be adopted, the phraseology used, the nature of the power conferred, of the duty

imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not

possible or advisable to lay down a herd and fast rule or an inflexible rule of guidance.

13. In (State of Gujrat and another v. M/s Krishna

others Cinema and others), reported in A.I.R. 1971 S.C. 1650, the power to issue, revoke or suspend a

license conferred upon the District Magistrate under the Bombay Cinemas (Regulation) Act, 1953 and the Rule of 1954 made thereunder was held to be

exercisable on satisfaction of the concerned officer of certain objective conditions and being plainly quasi

judicial in nature.

14. In (Indian National Congress (I) v. Institute of

Social Welfare and others), reported in (2002) 5 S.C.C. 685while dealing with the question as to whether the Election Commission, in exercise of

powers under section 29-A of the Representation of the People Act, 1951, acts administratively or quasi judicially, after taking stock of the decisions in (R. v. Dublin Corporation) 9, (1878) 2 Ir. R. 371, (R. v. Electricity Commrs.) 10, (1924), 1 KB 1: 1923 All ER Rep 150 (Province of Bombay v. Khushaldas S. Advani) 11, A.I.R. 1950 S.C. 222 held that the legal principles, laying down when an act of a statutory

{16} CR.wp 630.15.odt authority would be a quasi judicial act, which emerge from the aforesaid decisions are that (a) a statutory authority empowered under a statute to do any act,

(b) which would prejudicially affect the subject, (c) although there is no lis or two contending parties and

the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said

authority is quasi judicial. "

13 The Supreme Court in the matter of State of NCT of Delhi

and another V/s Sanjeev alias Bitoo AIR 2005 SC 2080 has

proceeded to construe the order passed under the Delhi Police

Act, directing externment of the respondent therein as an

administrative order. The order passed by the externing authority

was a matter of challenge before the Appellate Forum, which was

confirmed and the learned single Judge of Delhi High Court

quashed the order passed by the Lieutenant Governor of the Delhi

passed under section 51 of the Act. The Supreme Court proceeded

on the footing that, the order of externment is administrative

action. The observations of the Supreme Court in paras Nos.16,

18, 21 and 28 are relevant for consideration which are quoted as

below:-

" 16. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troupes, entering into international treaties, etc.

{17} CR.wp 630.15.odt The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinize the factual basis upon which

discretionary powers have been exercised. One can conveniently classify under three heads the ground on

which administrative action is subject to control by judicial review. The first ground is 'illegality', the second 'irrationality' and the third 'procedural

impropriety'. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Services (1984) (3) Al. ER.935)

(commonly known as CCSU case). If the power has

been exercised on a non-consideration or non- application of mind to relevant factors, the exercise of

power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and

which are patently erroneous, such exercise of power will stand vitiated. (See Commissioner of Income-tax

v. Mahindra and Mahindra Ltd (AIR 1984 SC 1182). The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous

and John Alder in their book "Applications for Judicial Review, Law & Practice", thus:

"There is a general presumption against ousting

the jurisdiction of the Courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however certain areas of governmental activity, national security being the paradigm, which the Courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government's claim is bona fide. In

{18} CR.wp 630.15.odt this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative

are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions v.

Minister for the Civil Services this is doubtful. Lords Diplock, Scaman and Roskili appeared to agree that there is no general distinction between powers, based

upon whether their source is statutory or prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national

security. Many prerogative powers are in fact

concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in

principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney

General's prerogative to decide whether to institute legal proceedings on behalf of the public interest. "

17.. .....

18. The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural

impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.

19. .....

20. ....

{19} CR.wp 630.15.odt

21. The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in CCSU case as illegality,

procedural impropriety and irrationality. He said more grounds could in future become available, including

the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that

case as follows:

" . . .. Judicial review has I think, developed to a

stage today when, without reiterating any analysis of the steps by which the development has come about,

one can conveniently classify under three heads the grounds on which administrative action is subject to

control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that

further development on a case-by-case basis may not

in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the

administrative law of several of our fellow members of the European Economic Community. "

Lord Diplock explained 'irrationality' as follows:

"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

{20} CR.wp 630.15.odt

22. ....

23. . . . .

                      24           ....
                      25.          ....




                                                    
                      26.          .....
                      27.          .....




                                                   

28. In the case as noted above, all the relevant aspects were considered and High Court was not justified in holding to the contrary. The Appeal was

heard primarily to clarify certain doubtful areas. In view of some divergent views expressed by different

Benches of the High Court, though the period of externment was over. "

14 In order to determine whether a power is an administrative

power or a quasi judicial power, one must look to the nature of

the power conferred, the persons on whom it is conferred, the

framework of the law conferring that power, the consequences

ensuing from the exercise of that power and the manner in which

that power is expected to be exercised. (A.K. Kraipak versus

Union of India (1970) 1 SCR 457). In the matter of Board of High

School & Intermediate Education, U.P. versus Ghanshyam Das

Gupta (AIR 1962 SC 1110), it is observed, "where the statute in

question is silent as to the manner in which the power conferred

should be exercised by the authority acting under it, the exercise

of power will depend on the express provisions of the statute read

along with the nature of rights affected, the manner of disposal

{21} CR.wp 630.15.odt provided, the objective criteria, if any, to be adopted, the effect of

the decision on the persons affected and other indicia afforded by

the statute." It would, therefore, be seen that, where a statutory

authority is given power to make decision or perform an act which

affects rights of individuals or imposes obligation on them, the

duty to act judicially need not be expressly super imposed on the

statutory authority. It may be inferred from the nature of the

power conferred, its impact on the right of the citizen and such

other relevant circumstances. While examining the character of

the order as judicial or administrative, one has to consider as to

whether a decision is based solely or exclusively on the application

of objective standards to ascertain facts but if it is founded on

subjective satisfaction of the statutory authority, the duty to act

judicially would be clearly excluded and the decision would be an

administrative decision as opposed to quasi judicial decision. The

basic test, therefore, for distinguishing between an administrative

decision and a quasi judicial decision is, whether the decision of

the statutory authority is based solely and exclusively on the

application of legal principles of objective standards to the facts

found on the material placed before it, without any extraneous

considerations or it is guided by consideration of policy or

expediency and is based on the subjective satisfaction of the

statutory authority.

15 The Honourable Supreme Court considered the scheme of

{22} CR.wp 630.15.odt sections 56 to 61 of the Bombay Police Act, (now The Maharashtra

Police Act) in the matter of Hari Gavali versus Deputy

Commissioner of Police (1956 Cri LJ 1104) and Bhagubai

Dullabhabhai Bhandari Versus The District Magistrate, Thane. In

Hari Gawali's matter, the Honourable Supreme Court quoted with

approval observations of the Chief Justice Patanjali Shastri in the

matter of The State of Madras versus V.G. Row (1952 Cri LJ 966),

wherein, it has been observed that, the externment of individuals,

like preventing detention, is largely precautionary and based on

suspicion. The Supreme Court has emphasized the fact that,

under the relevant provisions, the question has to depend upon

the subjective satisfaction of the officer or authority concerned,

either in the first instance or in the appeal. It is clear that,

sections 56 and 57 under which externment orders could be

passed in different sets of circumstances mentioned therein, in

terms provided that, the officer passing the order has to form his

own opinion and has to satisfy himself about the existence of

circumstances that warrant issuance of order in case of given

individual, while the tenor of section 60 suggests that, the State

Government as the appellate authority has to consider the mater

subjectively. Subsection 3 of section 60 empowers the State

Government to make such further enquiry as it deems fit before

confirming, varying or setting aside the order passed by invoking

sections 56 and 57.

{23} CR.wp 630.15.odt 16 The learned single Judge, while considering the nature of

the proceedings under sections 56 and 57 of the Bombay Police

act, in the matter of Nabukhan Mohammed Hussain Khan versus

S. Ramamurthi (1971 Mh. L.J. 633), in paragraph No.9 of the

Judgment, on consideration of the Judgments of the Honourable

Supreme Court referred to above, observed as below:-

". . . . ... . such disclosure of the process of reasoning would, in my view, defeat the very object with which proceedings under the said special provisions are

undertaken. Secondly, under the relevant provisions

of the Act, nor merely the officer passing the order but also the appellate authority acting under section

60 of the Act has to decide the question on his or its subjective satisfaction. If, therefore, the officer concerned has to decide the matter subjectively and

has to form his subjective opinion as to whether on the material placed before him the proposed

externment order should be passed or not, it would be incongruous to require the said officer to disclose his reasons or process of reasoning by which he has

satisfied himself about the veracity or otherwise of the allegations contained in notice under section 59. The appellate authority also, it is clear from the

observations of the Supreme Court in Hari Gawali's case, has to decide the matter in appeal subjectively by applying its own mind to all the materials that would be placed before it. . . . . .. . . . . . ."

17 The necessity of recording reasons by the externing

authority or by appellate authority while passing the order, has

{24} CR.wp 630.15.odt also been considered in various Judgments. The Supreme Court

has considered the peculiar nature of the proceedings, which are

necessarily as preventive measure and looking to provisions of

section 59 of the Act, has overruled the objections as regards

necessity of recoding reasons. The provision of section 59 itself

imposes limited obligations on the authority to explain to the

proposed externee of the general nature of material allegations

against him. Considering the nature of proceedings, the complete

disclosure of the material gathered by the law enforcement

authority need not be disclosed to the proposed externee. The

Supreme Court in the matter of Pandharinath Shridhar Rangnekar

V/s. Dy. Commissioner of Police, State of Maharashtra (AIR 1973

SC 630) has observed in paragraph No.9 of the Judgment, as

quoted below:-

" 9. These provisions show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances. An

order of externment can be passed under cl.(a) or (b) of Section 56, if, and only if, the authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the

proposed externee by reason of apprehension on their part as regards the safety of their person or property. A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceedings. If the s how- cause-notice were to furnish to the proposed externee concrete data like specific dates of incidents or the

{25} CR.wp 630.15.odt names of persons involved in those incidents, it would be easy enough to fix the identity of those who out of fear of injury to their person or property are unwilling

to depose in public. There is a brand of lawless element in society which it is impossible to bring to

book by established methods of judicial trial because in such trials, there can be no conviction without legal evidence. And legal evidence is impossible to obtain,

because out of fear of reprisals witnesses are unwilling to depose in public. That explains why Section 59 of the Act imposes but a limited obligation

on the authorities to inform the proposed externee "

of the general nature of the material allegations against him." That obligation fixes the limits of the

correlative right of the proposed externee. He is entitled, before an order of externment is passed under Section 56, to know the material allegations

against him and the general nature of those allegations. He is not entitled to be informed of

specific particulars relating to the material allegations."

18 In para No.14 of the Judgment, the Supreme Court has

considered the issue of recording reasons by the appellate

authority i.e. State Government. It is observed thus:-

"14. The third and fourth points have the same answer as the second point just dealt with by us. Precisely for the reasons for which the proposed externee is only entitled to be informed of the general nature of the material allegations, neither the externing authority nor the State Government in

{26} CR.wp 630.15.odt appeal can be asked to write reasoned order in the nature of a Judgment. If those authorities were to discuss the evidence in the case, it would be easy to

fix the identity of witnesses who were unwilling to depose in public against the proposed externee. A

reasoned order containing a discussion of the evidence led against the externee would probably spark off another round of tyranny and harassment. "

19 It is thus clear that, the scheme of the Act does not insist

the externing authority to make disclosure of the material

collected against the externee, on which reliance is to be placed,

except general nature, that too, of material allegations, while

taking preventing measures. Apart from this, there is also no

obligation on the externing authority or the appellate authority to

record the reasons. The order of externment is founded on the

subjective satisfaction of the statutory authority and as such, the

duty to act judicially would be clearly excluded and the decision

would be an administrative decision as opposed to quasi judicial

decision.

20 The issues, as to whether the authority while passing an

order of externment under section 56 of the Maharashtra Police

Act, 1951 is bound to give reasons in support of the order and as

to whether the State Government exercising powers in appeal

against the order of externment under section 60 of the Act is

bound to disclose reasons in support of its order, has been

considered by the full bench of the Gujrath High Court in the

{27} CR.wp 630.15.odt matter of Sandhi Mamad Kala versus State of Gujrath (1973 (14)

GLR 384). To the issue as to whether the order of externment can

be construed as an administrative or quasi judicial, the full bench

of the Gujrath High Court has recorded the finding that functions

discharged by the externing authority clearly suggest that, it is an

administrative and not a quasi judicial function. In paragraph Nos.

9, 10 and 11 of the Judgment, the full bench has observed thus:-

" 9. It is clear on a plain reading of Section 56, in

the context of the provisions in which it occurs, that it is a preventive measure. It undoubtedly involves

restraint or hardship on individuals who are subjected to its drastic rigour but it does not partake

in any way of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. The sect ion is, as pointed out by the

Supreme Court in Hari Gawali v. Deputy

Commissioner of Police MANU/SC/0010/1956: 1956 CriLJ1104, "based on the principle that it is desirable i the larger interests of society that the freedom of

movement and residence of a comparatively fewer number of people should be restrained so that the majority of the community may move and live in peace and harmony and carry on their peaceful

avocations untrammeled by any fear or threat of violence to their person or property". The measure contemplated by the section is not punitive but preventive and since every preventive measure is based on the principle that a person should be restrained from doing something which, if left free and unfettered, it is reasonably probable he would

{28} CR.wp 630.15.odt do, it must necessarily proceeded in all cases, to some extent, on suspicion or anticipation as distinct from p roof. Patanjali Shastri C.J., pointed cut in the

State of Madras v. V.G. Row MANU/SC/0013/1952: 1952Cr.LJ 966, "externment of individuals, like

preventive detention, is largely precautionary and based on suspicion" and to these observations may be added the following words uttered by the learned

Chief Justice in that case with reference to the observations of Lord Finlay in Rex v. Halliday (1917) A.C. 260, namely, that "the Court is the least

appropriate tribunal to investigate into circumstances

be largely

of suspicion on which such anticipatory action must based". This being the nature of

proceeding, it is impossible to conceive how, it could ever be regarded as quasi judicial. The circumstances to be inquired into by the externing

authority would be, if not wholly, at least to some expert, circumstances of suspicion and the question

to be considered by the coexisting authority would be whether these circumstances are such as require taking of anticipatory action. These are not matters

which are amenable to judicial approach. They cannot be assessed by any objective standards.

10. We must then proceed to consider the nature

of the function discharged by the externing authority under section 56. No so far as the portion of that section relevant for our purpose is concerned, it is clear on a plain grammatical construction of its language, that in order to attract its applicability, two conditions must be satisfied. First, the externing authority must be satisfied that the movements or

{29} CR.wp 630.15.odt act of any person are causing or calculated to cause alarm, danger or harm to person or property or that there are reasonable grounds for believing that such

person is engaged or is about to be engaged in the commission of an offence involving force or violence

or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code or in the abetment of any such offence and secondly, in the opinion of the

externing authority, witnesses would not be willing to come forward to give evidence in public against such person by reason of apprehension on their part as

regards the safety of their person or property. Now

these matters in respect of which the externing authority is required to be satisfied before an order

of externment can be passed by it, are not all matters susceptible of objective determination. The determination of these matters is deliberately left by

the Legislature to the subjective satisfaction of the externing authority. The externing authority may be

the Commissioner or the District Magistrate or the Sub-Divisional Magistrate, specially authorised in this behalf by the State Government. Each of these

officers is charged with the duty of maintaining law and order and preventing commission of offences and for this reason, the power conferred under

Section 56 which is a power in aid of th is function, is advisedly entrusted to these officers. These officers acting as externing authority would also, by reason of their long experience and special expertise, be best fitted to decide whether the movements or acts of any person are calculated to cause alarm, danger or harm to person or property or there are reasonable grounds for believing that such person is

{30} CR.wp 630.15.odt about to be engaged in the commission of offence. Moreover, even after the externing authority is satisfied about these matters, it would still have to

consider whether any preventive action should be taken against the person concerned under the

section. The externing authority would have to take into account various considerations such as the nature of the activities of the person concerned, the

degree of probability of continuance of such activities, the gravity of the apprehended harm, the need for public security or maintenance of law and

order and the requirement of public interest. The

externing authority would also have to consider what preventive action should be adopted against the

person concerned, or, in other words, what is the extent to which his freedom should be curtailed. Section 56 places two alternatives before the

externing authority so far as the nature of the action to be taken by it is concerned. The externing

authority may direct such person so to conduct himself as shall seem necessary in order to prevent violence and alarm or extern him from the areas

within the limits of his jurisdiction or such area and any distinct or district or any part thereof contiguous to it. The externing authority would have to choose

between these two alternatives and decide what in the circumstances of the case is the better course to adopt in order to mitigate the evil. These are all matters which must necessarily be decided by the externing authority in its subjective satisfaction. They are by their very nature not amenable to objective determination and could not be intended to be judged by objective standards. They are

{31} CR.wp 630.15.odt essentially matters which have to be administratively determined for the purpose of taking preventive action. To hold that these matters must be judicially

determined would be to introduced an element which would lob the power of externment of much of its

efficacy as a preventive measure. Moreover, it is difficult to imagine that the Legislature could have ever intended that the decision of the externing

authority on these matters should be liable to be subjected to judicial scrutiny, which it would necessarily be, if it were held to be a quasi judicial

decision. Such a decision in exercise of a power of

this kind could hardly be a fit subject matter for judicial reviewability. The analysis of the function to

be discharged by the externing authority also, therefore, clearly suggests that it is an administrative and not a quasi judicial function.

11. This conclusion becomes almost irrefutable

when we turn to the procedure prescribed in Section 59 for making an order of externment under Section

56. Section 56 requires that the externing authority

or any officer above the rank of an inspector authorised by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable

opportunity of tendering an explanation regarding them and if such person wants to examine any witnesses on his behalf, he is given a right to do so, provided, of course, this right is not abused by an attempt to examine witnesses only for the purpose of vexation or delay. The person concerned is also given a right to appear before the officer holding the

{32} CR.wp 630.15.odt inquiry by an advocate or attorney for the purpose of tendering his explanation and examining the witnesses produced by him. But here the right of

audi alteram partem given to him ends. He is not entitled to know the particulars of the material

allegations against him nor is he entitled to be told what are the witnesses who have given statements against him or what are the contents of those

statements. He is also not entitled to have those witnesses produced before the inquiry officer for the purpose of cross-examination. He is completely left

in the dark so far as these matters are concerned

and the only thing which is furnished to him is " the general nature of the material allegations against

him". This is, of course, necessary, because, otherwise, if the names of the witnesses were to be disclosed and they were to be produced for cross-

examination, the object and purpose of Section 56 would be wholly frustrated. It is because witnesses

are not prepared to depose in public against the proposed externee and on that account it is not possible t take action against him under the ordinary

law of the land, that preventive action is sought to be taken against him under Section 56. The disclosure of the names of the witnesses and their

statements or furnishing of particulars of the material allegations against the proposed externee is, therefore, in the very nature of things, impossible. This was pointed out by the Supreme court in Hari Gawali v. Deputy Commissioner of Police (supra) where it was said:-

The grounds available to an externee had necessarily to be very limited in their scope, because

{33} CR.wp 630.15.odt if evidence were available which could be adduced in public, such a person could be dealt with under the preventive sections of the Code of Criminal

Procedure, for example, under Section 107 or Section 110. But the special provisions now under

examination proceed on the basis that the person dealt with under any of the sections 55, 56 or 57 is of such a character as not to permit the ordinary

laws of the land being put in motion in the ordinary way, namely, for examining witnesses in open court who should be cross-examined by the party against

whom they were deposing. The provisions we are

now examining are plainly intended to be use din special cases requiring special treatment, that is,

cases which cannot be dealt with under the preventive sections of the Code of Criminal procedure.

If this is the procedure to be followed by the externing authority before making an order of

externment, does it not clearly indicate that the function of the externing authority is an administrative function ? It is impossible to conceive

of any quasi judicial process in which the basic right to correct or controvert any statement prejudicial to his view is denied to the person against whom the

process is adopted. The right to correct or controvert any relevant statement brought forward to the prejudice of a person is an essential procedure attribute of a quasi judicial function and where this is lacking, the function cannot possibly be regarded as quasi judicial. The argument of the petitioners was that merely because a certain area out of the principles of natural justice is taken out by the

{34} CR.wp 630.15.odt procedure prescribed section 59, it does not follow that the function of the externing authority is an administrative function. There are many instances,

said the petitioner, where even in cases of exercise of admittedly quasi judicial function, some one or

more of the rules of natural justice may be found to be excluded by the statute or statutory rules. What is the extent to which the rules of natural justice

apply to exercise of a quasi judicial power would always depend on the statute which confers such power on the statutory authority or on the rules

made under that statute. Therefore, merely because

some are out of the rules of natural justice is excluded by the procedure prescribed in Section 59,

it should not necessarily lead to the inference that the function of the externing authority is an administrative function. Now it is undoubtedly true

that the rules of natural justice are not such as can be reduced to any formula, exclusive or inclusive,

which can have universal application to every kind of inquiry. What particular rules of natural justice should apply in a given case must depend to a great

extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the statutory authority

appointed for that purpose. Vide Gondalal v. State (1963) 4 G.L.R.326 and A.K. Kraipak v. Union of India MANU/SC/0427/1969: (1970)1 SCR 457. If, therefore, an Inroad is made into the rules of natural justice by a statutory provision or rules made under a statute, that would not affect the character of the function, if otherwise, it is a quasi judicial function. But the question would always be, what is the extent

{35} CR.wp 630.15.odt of the inroad made by the statutory provision or rules. If the inroad is slight, it might leave the essential character of the function unscathed. But

the position would be different if the inroad is large. Where the inroad is such that it destroys the basic

and essential procedural attribute of a quasi judicial function, it would not be possible to characterise the function as quasi judicial. The question in these

cases is always one of degree. The nature of function has to be determined on a conspectus of all the considerations and there, the absence of a

procedural attribute which is basic and essential to a

quasi judicial function would be a very important determinative factor. Here in the present case, there

is practically no opportunity afforded to the proposed externee to correct or controvert any statements which might have been made prejudicial to him.

What we may call the other side of the case is completely shut out to him. That, in our opinion, is

the very negation of a quasi judicial process. It is indeed difficult to imagine a quasi judicial process where a whole record is excluded from the scan and

scrutiny of a party to the inquiry. If the function of the externing authority were quasi judicial function, the order of externment would be a quasi judicial

order amenable to judicial review and this Court would be entitled to call for the record of the case in order to examine the validity of the order of externment. But how would this Court exercise its power of judicial review, if a substantial part of the record is withheld from it ? It is obvious that the statements of the witnesses who have deposed against the proposed externee cannot be disclosed to

{36} CR.wp 630.15.odt this Court because, if the Court were to look at them, they would also have to be given to the proposed externee and that would expose the

witnesses and defeat the object and purpose of adopting preventive action under Section 56. It

would not, therefore, be open to this Court to require the externing authority to disclose the statements of the witnesses and that would clearly indicate that

the order of externment was not intended to be amenable to the power of judicial review. We have, in the circumstances, no doubt that the function

discharged by the externing authority under Section

56 is an administrative function as opposed to a quasi judicial function. This would appear to be clear

on principle but, even apart from principle, there are observations of the Supreme Court in Hari Gawali v. Deputy Commissioner of Police (Supra) which clearly

support this conclusion. The Supreme Court, after referring to various matter which may have to be

considered by the externing authority while making an order of externment, pointed out in Hari Gawali v. Deputy Commissioner of Police "These are all

matters which cannot be examined by this Court in an objective way, when the legislature has provided for the subjective satisfaction of the authorities or

officer who have been entrusted with the duty of enforcing those special provisions of the Act". If these matters are left to the subjective satisfaction of the externing authority, then obviously, as pointed out above, the function discharged by the externing authority must be held to be an administrative function. If that be so, the necessity of giving reasons cannot be imported in an order of

{37} CR.wp 630.15.odt externment on the basis that it is a quasi judicial order. "

21 The argument that, while exercising appellate powers, the

nature of proceedings in the appeal are necessarily a quasi judicial

proceedings and the State Government is under duty to act

judicially in disposing of the appeal, has also been considered by

the full bench of the Gujrath High Court. The State Government is

bound to deal with the appeal in the same manner, as the

externing authority and shall have to take into account the

material available before the externing authority in support of its

order and has to satisfy itself. Legislature has itself left the matter

to the subjective satisfaction of the authority, which surely include

the State Government. In paragraph Nos.18 and 19 of the

Judgment, the full bench of Gujrath High Court has observed

thus:-

" 18. That takes us to the next question whether an appeal against an order of externment is a quasi

judicial proceeding and the State Government is under a duty to act judicially indisposing f the appeal. Now all the reasons which have weighed with us in

taking the view that the power exercised by the externing authority in making an order of externment is administrative and not quasi judicial are wholly applicable to the determination of the question whether the power exercised by the State Government in disposing of the appeal is quasi judicial. The State Government as the appellate authority is bound to examine the question before it

{38} CR.wp 630.15.odt in the same manner as the externing authority by taking into account various consideration of policy or expediency which are not matter of objective

assessment but which rest on the subjective satisfaction of the deciding authority. The nature of

the power and the manner of its exercise do not change when the proceeding goes higher from the externing authority to the State Government. Then

again the State Government can look at the part of the record consisting of the statements of the witnesses, without disclosing it to the proposed

externee and decide the appeal on the basis of such record. The ig same objection as regard reviewability by reason of a part of the record being judicial

withheld from the proposed externee would arise also in the case of an appeal as in the case of the proceedings before the externing authority and the

same impracticability of giving reasons without disclosing a part of the record to the proposed

externee which affects the exercise of power by the externing authority, would also affect the disposal of appeal by the State Government. We are unable to

see how the State Government could be regarded as exercising quasi judicial power while disposing f the appeal. In fact, as pointed out by the Supreme Court

in the passage quoted by us from the Judgment in Hari Gawali v. Dy. Commissioner of Police (supra), the determination of various matters necessary for the purpose of deciding whether, and if so, what preventive action should be taken, is left by the Legislature to the subjective satisfaction of the authorities which include the State Government.

{39} CR.wp 630.15.odt

19. The petitioner, however, relied on the decision of the Supreme Court in Nagendra Nath v. Commissioner of Hills Division, to which we have

already referred in another connection. We have set out the contention which was urged on behalf of the

Commissioner before the Supreme Court in that case and we need not reiterate it once again. The Supreme Court while dealing with this contention

made the following observations which are strongly relied upon on behalf of the petitioner:-

Where there is a right vested in an authority

created by statute, be it administrative or quasi

judicial, to hear appeals and revisions it becomes its duty to her judicially, that is to say, in an objective

manner, impartially and after giving reasonable opportunity to the parties concerned in the dispute, to place their respective cases before it.

The Supreme Court also quoted with approval two

passages, one of Lord Haldane and the other of Lord Moulton in Local Government Board v. Arlidge (1915) A.C. 120 in support of their observations. N

ow prima facie these observations might seem to suggest that wherever an appeal is provided against an order, the appellate authority, whether it be administrative or quasi judicial, is under a duty to act

judicially in disposing of the appeal. But if we look at the judgment of the Supreme Court a little more closely, it will be clear that the Supreme Court never intended to lay down any such absolute proposition. The Supreme Court, as a matter of fact, pointed out in an earlier part of the judgment that if, "the matter had rested only with the provisions of the Act, apart

{40} CR.wp 630.15.odt from the rules made under Section 36 of the Act, much could have been said in support of "the contention that the several authorities concerned

with the settlement of excise shops which included the appellate authorities were merely administrative

bodies, and, therefore not amenable to the writ jurisdiction of the High Court. But, according to the Supreme Court, the rules made under Section 36 of

the Act made a vital difference by approximating the procedure to be followed "by the Appellate Authorities, to the regular procedure observed by

courts of justice in entertaining appeals" and the

function exercised by the appellate authorities was, therefore, regarded as a quasi judicial function. It will

thus be seen that the Supreme Court relied considerably on procedural attributes for the purpose of coming to the conclusion that the appellate

authorities were exercising quasi judicial powers. It cannot, therefore, be laid down as an absolute

proposition that whenever there is a right of appeal given against an order made by a statutory authority, the appellate authority would be under a duty to act

judicially in disposing of the appeal. The question whether the State Government is exercising a quasi judicial power or an administrative power in

disposing of the appeal would depend on various considerations to which we have already adverted. This decision of the Supreme Court does not compel us to reach a conclusion different from the one we are otherwise inclined to take. We accordingly hold that the State Government disposing of an appeal against an order of externment is not under a duty to act judicially and does not exercise a quasi judicial

{41} CR.wp 630.15.odt power. No obligation to give reasons can, therefore, be imported in the exercise of the power of the State Government in disposing of the appeal. "

22 Thus from the analogy derived from the Judgments of the

Honourable Supreme Court as well as the decision of the full

bench of Gujrath High Court, it is clear that, the authority dealing

with externment proceedings i.e. the Sub-Divisional Magistrate or

the Deputy Commissioner, as the case may be or the State

Government, dealing with the appeal against the order of

externment, are expected to pass the order, which shall be

founded on the subjective satisfaction of the statutory authorities

and that, the duty to act judicially would be clearly excluded and

that the decision would be an administrative decision, as opposed

to quasi judicial decision. As has been observed by the Supreme

Court in the Judgments referred to above, there is no obligation to

record reasons, which can not therefore be imported in section 60

of the Bombay Police Act, the appellate power exercisable by the

State Government while disposing appeal or by the externing

authority, while passing the initial order.

23 So far as the first question as regards the nature of the

order passed under section 60 of the Maharashtra Police Act by

the State Government is concerned, it shall have to be construed

as an administrative order and not quasi judicial one.

{42} CR.wp 630.15.odt

24 The question as to whether the said order would be "an

order" within meaning of explanation to Rule 18 of Chapter XVII

of the Bombay High Court Appellate Side Rules, is answered in the

negative. The necessary consequence thereof is that, the writ

petition challenging the order passed by the State Government

under section 60 of the Maharashtra Police Act does not fall within

the prescription of 'order' under explanation to Rule 18 of Chapter

XVII of the Bombay High Court Appellate Side Rules and as such

is not covered by clause 23 of Chapter XVII Rule 18.

25 In the instant matter, since the period prescribed under the

impugned order, directing externment of the petitioner has come

to an end, the petition is rendered infructuous and as such the

criminal writ petition stands disposed of having been rendered

infructuous.

                 (A.I.S. CHEEMA, J)               (R.M.BORDE, J)





     vbd