1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.599 OF 2010 Manohar @ Manya Budhaji Patil ...Petitioner Vs. The Principal Secretary of Home Department Mantralaya and Another ...Respondents WITH CRIMINAL WRIT PETITION NO.607 OF 2010 Haresh Ramdas Joshi ...Petitioner Vs. The Principal Secretary of Home Department Mantralaya and Another ...Respondents ----- Mr.Rahul Kadam for Petitioner Mr.S.R. Shinde- APP for State ----- CORAM: V.M. KANADE J. DATED: 30TH MARCH, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioners and the Learned APP for the State. 2. In both the petitions, the learned Counsel appearing on behalf of the Petitioners is challenging the order of externment dated 18.6.2009, which was 2 served on them on 9th September, 2009. 3. The learned Counsel appearing on behalf of the Petitioners submitted that the show cause notice which was issued to both the Petitioners does not refer to pre-judicial activities committed by them in the City of Bhiwandi. However, while passing the order of externment, the Externment Authority has held that he was satisfied with the material on record that the Petitioners had carried on prejudicial activities in the city of Bhiwandi. It is submitted by the learned Counsel appearing on behalf of the Petitioners that the order passed by the Externment Authority , therefore, based on extraneous consideration and no opportunity was given to the Petitioners to make a proper representation since no reference is made in the show cause notice about the alleged pre-judicial activities carried out by both of them in the City of Bhiwandi. The learned Counsel appearing on behalf of the Petitioners secondly submitted that both the Petitioners have been externed from five districts viz. Thane, City of Mumbai, Mumbai Suburban, Navi Mumbai and Raigad District. It is submitted that the order of externment is, therefore, excessive since in the show cause notice no reference has been made of their prejudicial activities carried out by the Petitioners in the area of Bhiwandi City. The 3 learned Counsel for the Petitioners submitted that since there is no material on record to indicate that they had carried on the prejudicial activities in other four districts from which they have been externed, the said order is, therefore, excessive and, therefore, is clearly violative of Article 19 of the Constitution of India. It was further submitted that since this Court cannot correct the excessive order while exercising its writ jurisdiction, the only option which was left, therefore, on this ground to quash the said order. In support of both these submissions, the learned Counsel appearing on behalf of the Petitioners has relied on a judgment of the Gujarat High Court in the case of Harji Hira vs. E.N. Renison Dy. Comm. of Police and Another reported in Gujarat Law Reporter, Vol. 1 page 283 He also relied on three judgments of the Bombay High Court in the cases firstly, in the case of Kishor Rajaram Durge vs. The Deputy Commissioner of Police and Ors. reported in 2003 All MR (Cri) 2023 and the judgment in the case of Ganpat @ Ganesh Tanaji Katare vs. Assistant Commissioner of Police and Others reported in 2006 (1) Mh.L.J. page 510 and another judgment in the case of Sujit Madhukar Patil vs. The Principal Secretary of Home Department, Mantralaya Mumbai in Criminal Writ Petition No. 2039 of 2009. He also relied on the Division Bench Judgment in the case of Umar Mohamed 4 Malbari vs. K.P. Gaikwad, Dy. Commissioner of Police and Another reported in 1988 Mh.L.J. 5 page 1034. 4. I have perused the show cause notice and impugned order of Externment Authority. There is no manner of doubt that the impugned order which is passed by the Authority is beyond the scope of the show cause notice which has been issued. In the show cause notice , no reference has been made of prejudicial activities of the Petitioners in Bhiwandi City. Though it was sought to be contended that the offence which is registered at Narpoli, is an offence committed within the City of Bhiwandi, no affidavit to that effect has been filed. On the other hand, the learned Counsel for the Petitioners submits that Narpoli is situated in a village outside Bhiwandi City. The fact remains that in the entire show cause notice, no reference is made of the Bhiwandi City and, therefore, the impugned order which refers to prejudicial activities of the Petitioners in the City of Bhiwandi is beyond the scope of show cause notice. No opportunity has been given to the Petitioners to show cause against any allegations relating to the Bhiwandi City and yet the externment order has been passed on the basis of that the Petitioners were engaged in the commission of certain types of acts in the City of Bhiwandi. The externment order, therefore, on this ground is liable 5 to be quashed and set aside. Apart from that, by the said order, the Petitioners have been externed from five districts. In the show cause notice, no reference is made about any of the prejudicial activities of the Petitioners in the said districts. 5. Under these circumstances, therefore, in my view, though the activities indulged in by the Petitioners were restricted within the Taluka of Bhiwandi, the order externing the Petitioners out of City of Mumbai, Mumbai Suburban, Navi Mumbai and Raigad District is clearly excessive and the said order is, therefore, also liable to be quashed on that ground. The ratio of the judgment of which reliance is placed by the learned Counsel is squarely applicable to the facts of the present case. Both the Petitions are allowed. 6. Rule. Rule is made absolute in terms of prayer clause (a) in both the petitions. (V.M. KANADE J.)