Case Note & Summary
The case arose from a Criminal Writ Petition filed by the petitioner challenging an externment order and the subsequent appellate order confirming the externment. The petitioner had been externed from Ahmednagar district for one year by the Sub-Divisional Magistrate under Sections 56 and 57 of the Maharashtra Police Act, 1951, on 21 July 2014. His appeal to the State Government under Section 60 of the Act was dismissed on 9 April 2015. When the writ petition was filed in the Bombay High Court, the Registry raised an objection regarding the requirement of a second set, pointing out conflicting views on whether such a petition should be heard by a Single Judge or a Division Bench. A Vacation Judge opined that the appellate order under Section 60 was a quasi-judicial order and thus fell within Rule 18(1)(22) of the Bombay High Court Appellate Side Rules, 1960, making it amenable to disposal by a Single Judge. However, another Single Judge in a similar matter had held that such petitions were entertainable by a Division Bench. In view of this conflict, the matter was referred to a Division Bench by the Hon'ble Acting Chief Justice. The core legal issue was whether the order under Section 60 is a quasi-judicial or an administrative order. The Division Bench examined the nature of externment proceedings and the test for quasi-judicial acts. It was argued that since the order affects civil rights and the appellate authority is required to give a hearing, it is a quasi-judicial order. The Division Bench, relying on Supreme Court decisions, distinguished between administrative and quasi-judicial acts. It held that for an act to be quasi-judicial, there must be a lis between contending parties and a duty to act judicially. Under Section 60, the State Government only needs to give an opportunity of hearing and may confirm, vary, or cancel the order based on subjective satisfaction, without an obligation to adjudicate a dispute or record reasons. The order is a preventive administrative action, not a judicial or quasi-judicial determination. Thus, the appellate order is not an 'order' within the meaning of the explanation to Rule 18 of Chapter XVII of the Appellate Side Rules. Consequently, the Division Bench answered the reference by holding that the petition challenging such an order must be placed before a Division Bench, and the Registry was directed to take appropriate steps.
Headnote
A) Maharashtra Police Act, 1951 – Externment Proceedings – Nature of Order – Administrative vs. Quasi-Judicial – Sections 56, 57, 60 – The proceeding under Sections 56 and 57 involves a prohibitory action by the externing authority for maintenance of law and order based on subjective satisfaction, not adjudication of rights. Held, the order is not a quasi-judicial order but an administrative one. (Paras 5-8)
B) Bombay High Court Appellate Side Rules, 1960 – Rule 18 of Chapter XVII – Interpretation of 'Order' – The expression 'order' under the explanation means an order passed by any judicial or quasi-judicial authority. Since the appellate order under Section 60 is not passed by a quasi-judicial authority, it does not fall within the meaning of 'order' under Rule 18, and the petition is to be heard by a Division Bench. (Paras 1, 2, 9-11)
C) Administrative Law – Quasi-Judicial Act Test – A quasi-judicial act requires a duty to act judicially, which is absent when the authority is merely required to afford a hearing and make a decision on subjective satisfaction without adjudicating a lis between parties. Held, the State Government acting under Section 60 does not act judicially, thus its order is administrative. (Paras 6, 10, 11)
Issue of Consideration
Whether the order passed by the State Government under Section 60 of the Maharashtra Police Act, 1951 confirming an externment order under Sections 56 and 57 is an 'order' within the contemplation of explanation to Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, and consequently whether the writ petition challenging such order should be heard by a Single Judge or a Division Bench.
Final Decision
The Division Bench held that the order passed by the State Government under Section 60 of the Maharashtra Police Act, 1951, confirming the externment order, is an administrative order, not a quasi-judicial order. Consequently, the petition challenging such order must be placed before the Division Bench. The Registry was directed to take appropriate steps.
Law Points
- Distinction between administrative and quasi-judicial acts
- Nature of order under Section 60 of Maharashtra Police Act
- 1951
- Interpretation of Rule 18 of Bombay High Court Appellate Side Rules
- 1960
- Right to hearing does not make order judicial
- Externment order is preventive and administrative
Case Details
2016 LawText (BOM) (09) 1
Criminal Writ Petition No. 630 of 2015
R.M. Borde, A.I.S. Cheema
Mr. N.V. Gaware for Mr. A.H. Mahajan (petitioner), Mr. A.R. Borulkar, Assistant Govt. Pleader (respondent State)
State of Maharashtra (Through Principal Secretary, Home Department), Divisional Commissioner Nashik, Sub Divisional Magistrate Ahmednagar, Sub Divisional Police Officer Ahmednagar
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Nature of Litigation
Criminal writ petition challenging externment order and subsequent appellate order confirming the externment.
Remedy Sought
Petitioner sought quashing of the externment order dated 21.7.2014 passed by Sub-Divisional Magistrate, Ahmednagar under Sections 56 and 57 of Maharashtra Police Act, 1951, and the appellate order dated 9.4.2015 passed by the State Government under Section 60 confirming the externment.
Filing Reason
The petitioner was externed from Ahmednagar district for one year; his appeal to the State Government was dismissed; he challenged both orders in the High Court.
Previous Decisions
The matter was referred to the Division Bench due to conflicting views of Single Judges. Vacation Judge opined that order under Section 60 is quasi-judicial and within Single Judge's jurisdiction; another Single Judge in Cr. WP No. 560/2015 held petition entertainable by Division Bench. Matter placed before Hon'ble Acting Chief Justice, who directed constitution of Division Bench.
Issues
Whether the appellate order under Section 60 of Maharashtra Police Act, 1951 is a quasi-judicial order or an administrative order, and consequently whether the petition challenging such order should be heard by a Single Judge or a Division Bench of the High Court.
Submissions/Arguments
The Vacation Judge opined that the appellate order under Section 60 is a quasi-judicial order and falls within sub-clause 22 of Rule 18(1) of Chapter XVII, empowering a Single Judge to dispose of the petition.
The contrary view, as per a co-ordinate bench in Cr. WP No. 560/2015, relying on Manjeet Singh, held that such petition is entertainable by the Division Bench.
The Division Bench examined whether the order involves a lis, adjudication of rights, and a duty to act judicially.
Ratio Decidendi
An order passed by the State Government under Section 60 of the Maharashtra Police Act, 1951, on appeal against an externment order, is an administrative order because it does not involve adjudication of a lis, a decision on rights, or a duty to act judicially; it is based on subjective satisfaction and is a preventive action for maintenance of law and order. Therefore, such an order is not an 'order' within the meaning of the explanation to Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, and a writ petition challenging it is to be heard by a Division Bench, not a Single Judge.
Judgment Excerpts
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 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”.
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.
...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...
Procedural History
The Sub-Divisional Magistrate, Ahmednagar passed an externment order against the petitioner on 21.7.2014 under Sections 56 and 57 of Maharashtra Police Act. The petitioner appealed to the State Government under Section 60, which dismissed the appeal on 9.4.2015. The petitioner then filed Criminal Writ Petition No. 630 of 2015 in the High Court. The office raised an objection, and the matter came before the Vacation Judge, who by order dated 6.5.2015 directed placement before the Senior Most Judge due to conflict with a Single Judge's order in Cr. WP No. 560/2015. The Hon'ble Acting Chief Justice constituted a Division Bench to resolve the issue. The Division Bench reserved judgment on 4.12.2015 and pronounced on 15.9.2016.
Acts & Sections
- Maharashtra Police Act, 1951: 56, 57, 60, 56(1)(A), 56(1)(B), 56(2), 57(1)(A)
- Bombay High Court Appellate Side Rules, 1960: Rule 18 of Chapter XVII
- Constitution of India: Articles 226, 227
