P.C.

Heard Counsel for the petitioner and APP for the State.

2. The petitioner is challenging order of externment dated 19th September, 2009.

3. It is submitted that the order of externment is excessive inasmuch as though the Show Cause Notice states that the applicant should be externed from four districts, the final order of externment states that he shall be externed from five districts and in the said final order, the two districts which are mentioned in the Show Cause Notice have been deleted and three new districts have been mentioned in the said order. It is, therefore, submitted that there is gross violation of Article 19 of the Constitution of India and on that ground, the said order itself is liable to be set aside. It is submitted that by passing the said impugned order, the externing authority has passed an order of extraneous consideration since the Show Cause Notice does not mention that the petitioner had carried on any pre-judicial activity in the districts which are mentioned in the final order.

4. In my view, there is some substance in the submission made by the petitioner.

5. The learned APP has raised a preliminary objection regarding the maintainability of this petition on the ground that the petitioner has not availed of the alternate remedy which was available to the petitioner by filing an appeal against the said order of externment. In my view, the said objection cannot be accepted since it is a settled position in law that if there is a violation of fundamental right, the petitioner can directly approach this court under Articles 226 and 277 of the Constitution of India without first approaching the appellate authority. In the present case, the petitioner has alleged violation of Article 19 of the Constitution of India and that being the position, the petitioner is entitled to directly approach this court.

6. Secondly, perusal of the Show Cause Notice and the final order which is passed by the externing authority clearly discloses that there is non-application of mind on the part of the externing authority since the externing authority has passed order of externment in respect of five districts though these districts are not mentioned in the Show Cause Notice. The said order, therefore, is not only excessive also suffers from the vice of non-application of the mind. While exercising power under Articles 226 and 227 of the Constitution of India, this Court does not have the power to correct the order passed by the externing authority. As such the entire order, therefore, will have to be set aside.

7. The petition, therefore, is allowed. The order externing the petitioner from the districts of Thane, Greater Mumbai, Mumbai Suburbs, Navi Mumbai and Raigad dated 19th September, 2009 is quashed and set aside.

8. The petition, accordingly, is allowed and made absolute in the aforesaid terms.