The Bombay High Court has reaffirmed that the power to extern individuals under the Maharashtra Police Act cannot be exercised without affording a meaningful opportunity of hearing. This judgment underscores that procedural fairness is not a formality but a constitutional imperative, especially when fundamental rights under Article 19 are at stake.
Background & Facts
The Dispute
The petitioners, five individuals from Aurangabad, were issued an externment order under Section 55(1) of the Maharashtra Police Act, directing them to leave Ahilyanagar District for one year. The order was passed on 21 August 2025 by the Superintendent of Police, Ahilyanagar, on grounds of alleged involvement in criminal activities and potential threat to public order.
Procedural History
- 18 August 2025: A notice under Section 59 of the Act was issued, requiring petitioners to appear before the Superintendent of Police at 11:00 a.m.
- Only two petitioners appeared on this date; they requested time to file a written reply, which was granted until 21 August 2025.
- The remaining three petitioners were not present and were issued fresh notices for 21 August 2025.
- 21 August 2025: All petitioners appeared, submitted a Vakalatnama for their advocate Mr. M. A. Sayyed, and filed a written application seeking adjournment to file their reply due to unavailability of documents.
- Despite the adjournment request, the Superintendent passed the externment order on the same day without addressing the application or granting a hearing.
Relief Sought
The petitioners sought quashing of the externment order on the ground of violation of natural justice, and alternatively, requested that the matter be remanded for fresh adjudication with proper opportunity to be heard.
The Legal Issue
The central question was whether Section 55(1) of the Maharashtra Police Act permits an externment order to be passed without providing the affected person an opportunity to file a reply and be heard, and whether such a failure constitutes a violation of the principles of natural justice.
Arguments Presented
For the Petitioner
Learned counsel argued that the denial of opportunity to file a reply and present arguments violated the foundational principle of audi alteram partem. He relied on the Roznama records showing the adjournment request was filed but ignored, and emphasized that the Vakalatnama was filed only on the day of the order, making it impossible for the advocate to have been heard earlier. He contended that the alternative remedy under Section 60 is rendered illusory when the initial proceeding is fundamentally flawed.
For the Respondent
The Additional Public Prosecutor contended that the impugned order recorded that the petitioners were heard through their advocate, Mr. A. A. Sayyed. He argued that the petitioners had an efficacious alternative remedy under Section 60 to appeal the order, and therefore, the writ petition was maintainable only if that remedy was exhausted.
The Court's Analysis
The Court conducted a meticulous review of the record, particularly the Roznama entries and the timing of the Vakalatnama filing. It found a clear discrepancy between the order’s assertion that the petitioners were heard and the documentary evidence showing that the advocate’s authority was filed on the same day the order was passed, and that an adjournment application was pending.
"Significantly, there is nothing on record to indicate what order was passed by respondent No.2 on the said application for adjournment. On the contrary, it appears that respondent No.2, without passing any order on the said application, proceeded to pass the impugned order on the very same day."
The Court held that the mere assertion in the order that a hearing occurred cannot substitute for actual procedural compliance. The right to be heard is not a technicality but a substantive safeguard against arbitrary state action. The Court distinguished the Respondent’s reliance on Section 60 as an alternative remedy by citing its own coordinate bench’s decision in Narayan Sitaram Pawar v. Superintendent of Police, which held that when fundamental rights under Article 19 are infringed, the doctrine of alternative remedy does not bar writ jurisdiction under Article 226.
The Court emphasized that procedural fairness is non-negotiable in externment proceedings, as such orders severely restrict personal liberty and movement. The failure to consider the adjournment application and to grant a hearing rendered the order void ab initio.
The Verdict
The petitioners succeeded. The Court quashed the externment order dated 21 August 2025, holding that the principles of natural justice were violated by denying the petitioners an opportunity to file a reply and be heard. The matter was remanded for fresh adjudication with a strict timeline for compliance.
What This Means For Similar Cases
Hearing Cannot Be Presumed
- Practitioners must challenge externment orders where the record shows no actual hearing, even if the order claims one was held.
- Roznama entries, Vakalatnama filing dates, and adjournment applications are critical evidence to prove denial of hearing.
- Courts will not accept self-serving assertions in orders without corroborating documentation.
Alternative Remedy Does Not Bar Writ Jurisdiction
- When externment orders infringe Article 19 rights, writ petitions under Article 226 remain maintainable regardless of Section 60 appeals.
- The Bombay High Court has now explicitly aligned with the principle that procedural illegality defeats the doctrine of alternative remedy.
- Practitioners should not be deterred from approaching High Courts directly in cases of manifest natural justice violations.
Time-Bound Adjudication Is Mandatory
- Courts will impose strict timelines for fresh proceedings to prevent further delay.
- In this case, the Court mandated filing of replies within 15 days and final decision within one week of arguments.
- Practitioners should seek similar time-bound directions in remand orders to prevent indefinite pendency.
