IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.CHANDRA KUMAR WRIT PETITION NO. 245 of 2009 Between: Mohd. Awaiz Ahmed @ MA Waheed S/o. MA Qayyum R/o. House No. 4-2-57, Hathaigally, Nizamabad, Nizamabad District. ..... PETITIONER AND 1 The Government of Andhra Pradesh Rep. by its Secretary, Home Department, Secretariat, Hyderabad. 2 The District Collector & District Magistrate, Nizamabad District, Nizamabad. 3 The District Police Officer Nizamabad District, Nizamabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ or order/s more particularly one in the nature of writ of Certiorari calling for the records from the Nizamabad II Town Police Station and se aside the Order dt.30-12-2008 in Proceedings No. C2/480/2008-M passed by the second Respondent, as being illegal, arbitrary and violation of Articles 14 and 21 of the Constitution of India and be pleased to pass such other order. Counsel for the Petitioner: MR.B.VIJAYSEN REDDY Counsel for the Respondents: GP FOR HOME The Court made the following: Oral Order: (Per Hon’ble Sri Justice A.Gopal Reddy) Petitioner obtained a Rule from this Court calling upon the respondents to show cause why a writ in the nature of Certiorari shall not be issued under Article 226 of the Constitution, calling for the records in Proceedings No.C2/480/2008-M dated 30-12-2008 issued by the 2nd respondent—District Collector and to quash the same as violative of Articles 14 and 21 of the Constitution. By the impugned order the Collector and District Magistrate, Nizamabad in exercise of powers conferred under clause (a) of sub- Section (3) Section 3 of the Andhra Pradesh Prevention of Anti-Social and Hazardous Activities Act, 1980 (for short “the Act”) externmented the petitioner from Nizamabad District for a period of six months from 31-12-2008 for his involving in the cases shown in the order, which reads thus: 1. Cr.No.12/2000 under Sections 147, 148, 367, 307 r/w 149 IPC Section 27 of Indian Arms Act of II Town Police Station, Nizamabad. 2. Cr.No.13/2000 under Sections 353, 506 of I town Police Station, Nizamabad. 3. Crl.No.89/2000 under Sections 353, 506 of I Town Police Station, Nizamabad. 4. Cr.No.185/2007 under Sections 290, 323, 324, 506 r/w 34 IPC of II Town Police Station, Nizamabad. 5. Cr.No.131/2008 under section 107 IPC of II Town Police Station, Nizamabad. 6. Cr.No.155/2008 under Sections 290, 323, 506 r/w 34 IPC of II Town Police Station, Nizamabad. 7. Cr.No.173/2008 under Sections 143, 147, 148, 307 r/w 149 IPC Section of Criminal Amendment Act, 2006 and Section 27 of Arms Act, 1959 of II Town Police Station, Nizamabad. Before passing the impugned order a show cause notice dated 01-12-2008 was issued calling upon the explanation of the petitioner to explain why he should not be removed to outside of Nizamabad District and desist from entering into Nizamabad for a period of six months from the date of order as specified under the Act. The petitioner submitted a detailed explanation dated 11-12-2008 stating that first two cases referred in the show cause notice dated 01-12-2008 are already ended in acquittal and the remaining cases are pending trial and they are registered due to political and personal disputes with false implication. It is alleged that the 2nd respondent without examining the explanation submitted by the petitioner passed the impugned order directing the petitioner to remove himself outside from the Nizamabad District for a period of six months failing which he should be arrested and shifted outside the District as per Section 11 of the Act. The 3rd respondent was directed to see that the petitioner did not re-enter in Nizamabad district during externment period and keep a close watch on his movements and in case the petitioner re-enters Nizamabad within six months period, he may be sent to police custody outside Nizamabad District. Petitioner assails that the impugned order is illegal, arbitrary and violative of Articles 14 and 21 of the Constitution and suffers from non-application of mind. Out of seven criminal cases, referred in the impugned order; in cases 1 and 2 he was already acquitted and in the third case he was acquitted as the matter was compounded on 12-10-2001 in C.C.No.826 of 2003; all the three cases are old cases registered more than 8 years back. The fourth case referred in the impugned order is Cr.No.185/2007 of Nizamabad II Town Police Station registered for the offences under Sections, 290, 323, 324 506 r/w 34 IPC where charge sheet was filed and trial is pending. The fifth case is registered as Cr.No.131/2008 under Section 107 Cr.P.C. where he was bound over before the RDO for good behaviour. The sixth case is in Cr.No.155/2008 registered for the offence under Sections 290, 323, 448, 506 r/w 34 IPC pending investigation and no charge sheet is filed. Similarly the seventh case is Cr.No.173/2008 registered for the offence under Sections 143, 147, 148, 307 r/w 149 IPC, Section 7 of the Criminal Law Amendment Act, 2006 and under Section 27 of the Indian Arms Act, 1959 which is pending investigation. Out of the 4 recent cases, the only triable cases are referred in Sl.No.4, 6 and 7. In all the cases, complainants are members of one group who are politically enimical to the petitioner. Therefore, the impugned order passed by the District Collector is total non-application of mind. Further, unless the District Magistrate satisfies that the petitioner falls under the definition of “Goonda” as defined under Section 2(e) of the Act and he is habitually commits or attempts to commit or abets the commission of offence under Section 294 Chapter XVI, Chapter XVII, or Chapter XXII of the Indian Penal code, 1860 the order of externment cannot be passed and the same is liable to be set aside. The 2nd respondent filed counter affidavit reiterating the grounds for externment and asserting that the petitioner falls under the definition of “Goonda” as defined under Section 2(e) (i) of the Act as he habitually committed the offences effecting the human body. To curtail the unlawful activities of the petitioner in Nizamabad District, a detailed report was submitted by the Superintendent of Police, Nizamabad, recommending to remove the petitioner from the district and desist him from entering into Nizamabad district and requested to pass the order for externment under the provisions of the Act in order to control and prevent him from acting in any manner prejudicial to the maintenance of peace and public order and accordingly show cause notice was issued and after receiving the explanation submitted a detailed order was passed, which do not suffer from any jurisdictional error warranting interference. Sri B.Vijaysen Reddy, learned counsel for the petitioner contends that Section 13 of the Act bars jurisdiction of the Court to question externment order except by way of appeal to the Tribunal constituted under Section 6 of the Act within 15 days from the date of service of order in the manner prescribed. Since no Tribunal has been constituted, the petitioner will not have any remedy against the impugned order passed by the Collector and this Court in VELPULA PULLAIAH v. GOVT. OF A.P.[1] issued a Mandamus directing the authorities created under the Act not to pass any orders under the Act in future till a Tribunal in terms of Section 6 of the Act is constituted. Though this Court passed the order in the year 1999, till date no such Tribunal has been constituted. Therefore, the impugned order is liable to be set aside, as it violates Articles 14 and 21 of the Constitution. Learned Government Pleader for Home fairly conceded that so far no such Tribunal has been constituted under Section 6 of the Act. In view of the same, there is force in the contention raised by the learned counsel for the petitioner that the impugned order can be set-aside only on the ground of non-constitution of Tribunal making the statutory right of appeal nugatory. Since the impugned order passed by the 2nd respondent— Collector is in violation of Mandamus issued by this Court in the case referred to above, which also deprives the right of the petitioner to file appeal conferred under the Act, it cannot be sustainable and is accordingly set aside. The writ petition is accordingly allowed. No costs. _______________ A.GOPAL REDDY, J. __________________ B.CHANDRA KUMAR,J 16-02-2009 Murthy ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. The Secretary, Home Department, Government of Andhra Pradesh, Secretariat, Hyderabad. 2 The District Collector & District Magistrate, Nizamabad District, Nizamabad. 3 The District Police Officer Nizamabad District, Nizamabad. 4 Two CD copies. [1] 2000 (1) ALT (Crl.) 182 (AP)