Judgment:
S.D. Shah, J
1. These two petitions filed under Article 226 of cretary, Home Department (Special) dated 21st May, 1993 in Spl. Criminal Application No. 1311 of 1993 and dated 30th July, 1993 in Spl. Criminal Application No. 1473 of 1993. The orders are passed by one Mr. J.M. Parmar, Deputy Secretary, Home Department as appellate authority under Section 60 of the Bombay Police Act, 1951, hereinafter referred to as the said Act and since an identical question of law is raised in both these petitions by Learned Counsel appearing for the petitioners, these petitions are heard together and are being disposed of by this common judgment and order.
2. In Spl. Criminal Application No. 1311 of 1993, notice dated 15th June, 1992 was issued by Sub-Divisional Magistrate, Dholka, to the present petitioner under Section 59 of the said Act, informing the petitioner in writing of the general nature of material allegations against him and giving him a reasonable opportunity of tendering an explanation regarding such allegations. Thereafter, after following the procedures stipulated by Section 59 of the said Act, the Sub-Divisional Magistrate, Dholka respondent No. 2 passed the impugned Order dated 8th December, 1992 under Section 56(b) of the said Act externing the petitioner from the area of City of Ahmedabad, Ahmedabad (Rural), Bhavnagar, Surendranagar, Mehsana, Gandhinagar, Sabarkantha and Kheda for a period of two years, the other districts being contiguous to the area of operation of the petitioner. By the said order, the petitioner was directed to remove himself outside the aforesaid areas for a period of two years. Being aggrieved by the aforesaid order passed by the second respondent externing him from the aforesaid areas for a period of two years, the petitioner preferred Appeal to the Slate Government under Section 60 of the said Act and by order and communication dated 21st May, 1993, the Deputy Secretary, Home Department (Special), acting as appellate authority, has passed the impugned order. In this order he has recorded a finding that on going through oral submission made by learned Advocate appearing for the externee and on considering the evidence and materials which were produced before him and after taking into consideration the entire case file, he was satisfied that there were no proper and sufficient reasons for confirming the order of externment. However, he has, in exercise of powers conferred upon him by Section 60(3) of the said Act, issued certain directions and imposed certain conditions so as to regulate the conduct of the externee, which in his opinion, were necessary in order to prevent violence and alarm. He has in this connection, imposed the conditions calling upon the externee to furnish bond of the amount of Rs. 10,000/-, out of which he was directed to deposit an amount of Rs. 5,000/- in cash and he was further directed to mark his presence at the nearest police station at the interval of every fortnight for a period of two years. On his fulfilling such conditions, the appeal is ordered to be allowed and the order of externment passed against him by Sub-Divisional Magistrate is ordered to be set aside. It is this order, which is challenged by the petitioner in this petition.
3. In Special Criminal Application No. 1473 of 1993, notice dated 5th November, 1992 was issued by Sub-Divisional Magistrate, Valsad, to the present petitioner under Section 59 of the Act, calling upon the petitioner as to why he should not be externed for a period of two years from the area of Valsad District, Surat District and Bharuch District. After affording an opportunity contemplated by Section 59 of the said Act, ultimately the Sub-Divisional Magistrate, Valsad, passed the impugned order dated 14th June, 1993, thereby externing the present petitioner from the aforesaid three districts for a period of one year. The said order of externment passed under Section 56 by Sub-Divisional Magistrate, Valsad was challenged by the petitioner by preferring Appeal under Section 60 of the said Act to the State Government and the very officer, namely, Mr. J.M. Parmar, who heard the appeal, has after taking into consideration the oral as well as written submissions made by the Learned Counsel appearing for the petitioner and the evidence that was produced before the Sub-Divisional Magistrate and all other papers in the file, passed the impugned order dated 30th July, 1993. In the said order, the appellate authority has recorded the satisfaction that there were no proper and sufficient reasons for passing the order of externment and that the order of externment passed by Sub-Divisional Magistrate, Valsad, was not required to be confirmed, but at the same time he has proceeded to pass order under Section 60(3) of the said Act calling upon the present petitioner to furnish bond of the amount of Rs. 10.000/- and on such condition being satisfied, the order of externment is ordered to be set aside and appeal is ordered to be allowed. It is this order which is challenged by the petitioner in this petition.
4. From the aforesaid factual matrix, Mr. J.A. Dave and Mr. Anil S. Dave, Learned Counsels appearing for the petitioners, made following two submissions for our consideration:
(i) Section 60(3) of the Bombay Police Act, 1951 does not confer any power on the appellate authority while setting aside an order of externment to impose any condition of furnishing of bond or to impose any condition to direct the externee to conduct himself in a manner to be directed by the appellate authority, and therefore, the order passed by the Appellate Authority is beyond his power and jurisdiction.
(ii) In the alternative, it is submitted that assuming that the appellate authority has power 'to vary', which would include 'to alter or modify' an order of externment passed by the competent authority, such power could not have been exercised in the facts and circumstances of these cases in view of the fact that positive finding was reached by the appellate authority that order of externment passed against the externee in each case was not required to be confirmed and that appeal was required to be allowed. In view of such finding, further order imposing any condition as regards the manner in which the externee should conduct himself could not have been passed without recording reasons and without affording an opportunity to the externee.
5. Before we proceed to examine the soundness of the aforesaid two submissions, it would be necessary to make reference to some of the statutory provisions and the language employed therein by the legislature.
6. The Bombay Police Act, 1951 is an Act enacted to consolidate and amend the law for the regulation of the Police Force in the State of Bombay. Chapter V of the said Act deals with 'Special measures for maintenance of public order and safety of State'. Part I of Chapter V deals with 'Employment of additional police, recovery of cost thereof and of riot compensation'. Part II of Chapter V deals with 'Dispersal of gangs and removal of persons convicted of certain offences'. Section 56 of the said Act deals with removal of persons about to commit offence. Section 57 deals with removal of persons convicted of certain offences. Section 59 of the said Act prescribes procedure which is required to be followed before order under Sections 55, 56 or 57 is passed. It would, therefore, be appropriate first to refer to the language employed in Section 59 as that prescribes the procedure for passing an order both under Section 56 as well as under Section 57 of the said Act. Section 59 reads as under:
59. (1) Before an order under Sections 55, 56 or 57 is passed against any person the officer acting under any of the said sections or any officer above the rank of an Inspector authorised by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendeiing an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such application; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witnesses produced by him.
(2) The authority or officer proceeding under Sub-section (1) may, for the purpose of securing the attendance of any person against whom any order is proposed to be made under Secs 55, 56 or 57, require such person to appear before him and to pass a security bond with or without sureties for such attendance during the inquiry. If the person fails to pass the security bond as required or fails to appear before the officer or authority during the inquiry, it shall be lawful to the officer or authority to proceed with the inquiry and thereupon such order as was proposed to be passed against him may be passed.
7. The aforesaid section prescribes the procedure which is required to be followed by the competent authority before making an order of externment or imposing any other condition under Sections 55, 56 or 57 of the said Act. It prescribes the elaborate procedure of giving the notice to the proposed externee by a responsible officer, informing the person in writing of the general nature of the material allegations against him and to give such person a reasonable opportunity of tendering an explanation regarding such allegations. The procedure is more elaborate inasmuch as such person is given an opportunity of making an application for the examination of any witness produced by him and the authority is expected to grant such application and is expected to examine such witness, unless for reasons to be recorded in writing, the authority finds such application to be vexatious. After following the said procedure and after taking into consideration the explanation that may be given by the proposed externee and after examining the witnesses which may be produced before the authority, the authority is expected to pass the order. Section 56 deals with the power of the authority to pass an order of externment against those persons who are about to commit offence while Section 57 deals with situation where an order of externment could be passed against a person who is convicted of certain offences. Since in the facts of the case before us we are concerned only with exercise of power under Section 56, it would be relevant to refer to Section 56. Section 56 is reproduced hereunder:
56. Whenever it shall appear in areas for which a Commissioner has been appointed under Section 7 to the Commissioner and in other area or areas to which State Government may. by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf, (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the Commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not to willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction (or such area and any district or districts, or any part thereof, contiguous thereto) by such route and within such time as the said officer may prescribe and not to enter or return to the said area (or the area and such contiguous districts, or part thereof as the case may be), from which he was directed to remove himself.
8. From the language of Section 56 it would become at once clear that very high ranking responsible officer is entrusted with a very drastic power to pass an order of externment on being satisfied (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant. On his reaching the requisite satisfaction under any of the aforesaid three clauses, the authority is empowered to pass, two types of order - (1) He may by an order in writing duly served upon the person, direct such person to conduct himself as shall seem necessary in order to prevent violence and alarm. (2) He may by an order in writing served upon the person to remove himself outside the area within the local limits of jurisdiction or such area and any district or districts or any part thereof, contiguous thereto. The authority who is satisfied about any of the aforesaid three situations, may, therefore, pass any one of the aforesaid two orders.
9. The order passed by such authority is not made final but a right of appeal is conferred under Section 60 upon the persons aggrieved by an order under Section 56 and Section 60, which provides for such appeal being relevant for the purposes of these petitions, is reproduced hereunder:
60. (1) Any person aggrieved by an order made under Sees. 55, 56 or 57 may appeal to the State Government within thirty days from the date of such order.
(2) An appeal under this section shall be preferred in duplicate in the form of a memorandum, setting forth concisely the grounds of objection to the order appealed against, and shall be accompanied by that order or a certified copy thereof.
(3) On receipt of such appeal, the State Government may, after giving a reasonable opportunity to the appellant to be heard either personally or by a pleader, advocate or attorney and after such further inquiry, if any, as it may deem necessary, confirm, vary or cancel or set aside the order appealed against, and make its order accordingly:
Provided that the order appealed against shall remain in force pending the disposal of the appeal, unless the State Government otherwise directs.
(4) In calculating the period of thirty days provided for an appeal under this section, the time taken for granting a certified copy of the order appealed against shall be excluded.
10. Since it will be necessary in the course of this judgment to examine the nature and effect of the order that may be passed by the appellate authority and to examine as to whether any finality attaches to such an order, it is necessary at this stage to make reference to Section 61 of the said Act, which is reproduced hereunder:
61. Any order passed under Sections 55, 56 or 57 or by the State Government under Section 60 shall not be called in question in any Court except on the ground that the authority making the order or any officer authorised by it had not followed the procedure laid down in Sub-section (2) of Section 59 or that there was no material before the authority concerned upon which it could have based its order or on the ground that the said authority was not of opinion that witnesses were unwilling to come forward to give evidence in public against the person in respect of whom an order was made under Section 56.
11. Having reproduced the relevant statutory provisions, we shall now proceed to decide the aforesaid submissions in the order in which they are made.
12. Re-submission No. 1: Mr. Jayesh A. Dave and Anil S. Dave, Learned Counsels, appearing for the petitioners have taken us through the impugned orders passed by the appellate authority and have very strenuously urged before this Court that having once reached the satisfaction that the order of externment was not liable to be confirmed and that the appellate authority was satisfied both after considering the submissions as well as from the record and material before it that the order of externment directing the removal of the petitioner from the districts was not required to be confirmed, the only option open to the appellate authority was that of allowing the appeal and that of cancelling and setting aside the order of externment. They have very strenuously urged before this Court that the appellate authority under Section 60(3) has power to confirm, vary or cancel and set aside the order appealed against. In the present cases, the appellate authority has reached the satisfaction that the order of 'externment passed against each externee was not required to be confirmed and therefore, in their submissions the appellate authority was simply required to set aside such order but it could not have passed the further order of calling upon the externee to furnish bond of Rs. 10,000/- and/or Rs. 5,000/- and further to report at the police station at every fortnight for a period of two years. In their submission, such power is totally absent. In the alternative, they have submitted that if such power is to be found in the power of the appellate authority 'to vary' the order appealed against, the externee ought to have been heard and the orders should have recorded such satisfaction of the appellate authority in clear terms and such variation should not have been imposed as a matter of condition to set aside an order of externment.
13. In order to make good the aforesaid submissions both Learned Counsels have relied upon the decision of the Division Bench of this Court in the case of Ashokbhai Zinabhai Rana v. State of Gujarat, reported in 1987 (2) GLR 719. The Division Bench of this Court in the aforesaid case was called upon to decide the question as to whether the word 'vary' occurring in Section 60(3) of the said Act would include 'the power to remand'. In the case before the Division Bench, the appellate authority while setting aside the order of externment, remanded the matters to the externing authority for issuing fresh notices after incorporating in such notice the period and/ or the place through which the acts have taken place. It was such order passed by the appellate authority which was under challenge before the Division Bench of this Court and His Lordship the Chief Justice P.R. Gokulakrishnan speaking for the Division Bench held that the word 'vary' in the context of the present enactment may mean 'alter or embellish preserving identity'. The Division Bench held that the original order has to stand and it is open to the appellate authority either to alter its original order, embellish it or preserve it by keeping its identity intact.
14. Based on the aforesaid meaning given to the word 'vary' occurring in Section 60(3) of the said Act, Learned Counsel have very strenuously urged before this Court that it was not open to the appellate authority to pass the order it has ultimately proceeded to pass, i.e., of imposing condition of furnishing bond of Rs. 10,000/~ and of reporting presence every fortnight in the nearest police station as the appellate authority has already reached the satisfaction that the order of externment was required to be set aside and was not required to be confirmed. In their submission, once the appellate authority sets aside the order of externment, the identity of the original order is lost and a new order is ultimately passed by the appellate authority and this would not amount to 'varying the order'.
15. From the nature of power which is conferred upon the competent authority under Section 56 of the said Act, it becomes clear that he has first to be satisfied as to under which of the three clauses the prejudicial activities of the proposed externee would fall. If he is satisfied that the prejudicial activities of the proposed externee would fall under any of the aforesaid three clauses, the second stage of exercise of power is reached. The first stage is that of reaching the requisite satisfaction about prejudicial activities of the proposed externee. At the second stage, the authority has two options:
(1) To direct such person to conduct himself as shall seem necessary in order to prevent violence and alarm. This power is very widely worded. This power would irciude power to issue reasonable direction to the proposed externee to conduct himself in such manner as would be necessary in order to prevent violence and alarm. Such power would include power to give bond of the requisite amount for proper conduct. Such power would include power to mark presence at the nearest Police Station at reasonable interval. It is not seriously disputed before us that such directions can be given by the competent authority under this first power.
(2) To direct such person to remove himself outside the area within local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto. The exercise of the second option results into an order of externment, a more drastic and severe action compared to the first option.
16. It is thus clear that after the procedure prescribed by Section 59 of the said Act is followed and when the competent authority undertakes the exercise of power under Section 56 firstly, it records the satisfaction as regards need to take action and consistent with its satisfaction, secondly, it decides as to which of the two alternatives should be selected. Even after the externing authority is satisfied about the nature of prejudicial activities of the proposed externee and its deleterious effect, it would still have to consider whether and if yes, what preventive action should be taken against the person concerned under Section 56. The externing authority would have to take into account various considerations such as the nature of the activities of the person concerned, the degree of probability of continuance of such activity, the gravity of the apprehended harm, the need for public security or- maintenance of law and order and the requirement of public interest. The externing authority would also have to consider what preventive action should be adopted against the person concerned, or in other words what is the extent to which his freedom should be curtailed. Section 56, therefore, places aforesaid two alternatives before the externing authority. As stated hereinabove, the externing authority may direct such person so to conduct himself as shall seem necessary the order to prevent violence and alarm or extern him from the areas within the limits of his jurisdiction or such area of any district or districts or any part thereof contiguous to it. The externing authority would have to choose between these two alternatives and decide what in the circumstances of the case is a better course to adopt in order to mitigate the evil. These are all matters which must necessarily be decided by the externing authority in its subjective satisfaction. They are by their very nature not amenable to objective determination.
17. It is thus clear that when the appellate authority holds that the order of externment is not required to be confirmed, it is in fact setting aside the second part of the order, viz., that part of the order which is referable to choosing of one of the alternatives. It is not necessarily setting aside the satisfaction recorded by the externing authority as regards necessity to take concerned action under Section 56. In fact, that is the reason why the appellate authority has the both the orders before this Court, having decided not to confirm the order of externment, in the very next breath decided to issue direction which in the opinion and satisfaction of the appellate authority would suffice for the purpose of regulating the conduct of the externee. The appellate authority has in fact thereby not set aside the entire order of externment which was passed by the externing authority. It has left that part of satisfaction of externing authority intact by which it decided that it was necessary to take some preventive action under Section 56 but it only substituted one alternative for the other out of the two alternatives which are available to an externing authority. We are, therefore, of the opinion that it cannot be said that the appellate authority has while varying the order disturbed the identity of the order of externment. In our opinion, since the satisfaction about need to take action under Section 56 is confirmed, the identity is preserved and such an order by the appellate authority is permissible and would fall within the meaning of word 'vary' as understood and defined by the Division Bench of this Court in the aforesaid case of Ashokbhai Zinabhai Rana (supra). Mr. M.R. Raval and Mr. K.P. Raval, learned Additional Public Prosecutors have very vehemently urged before this Court that the meaning given to the word 'vary' occurring under Section 60(3) of the said Act by the Division Bench is too narrow and is not the only meaning which the word may carry. Mr. Jayesh A. Dave, Learned Counsel appearing for the petitioner in one of the matters has also invited the attention of the Court to the various meanings of the word 'vary'. We may at this stage refer to the various meanings which the word 'vary' may carry. Mr. Jayesh A. Dave has invited attention of the Court to the meaning of the word 'vary' as given in Corpus Juris Secundum at page 804, which reads as under:
Vary. To change to something else. It has been held to be synonymous with 'alter' see, 3 C.J.S. 898 Note 89, and 'amend' see. 3 C.J.S. 1039 Note 35.
18. From the aforesaid meaning it becomes clear that the word 'vary' is regarded as synonymous with the word 'alter', which would necessitate reference to the said word in Corpus Juris Secundum, Vol. 3 page 898. The word 'alter' as a verb, is defined as under:
To add to or diminish; to cause to be different in some respect; to change; to change in some respect, either partially or wholly; to change or modify the form or character of a thing, without changing its identity; to make different without destroying its identity; to make otherwise; to modify; to vary in some degree without making the entire change.
From the aforesaid meaning of the word 'alter' as a verb which is said to be synonymous to the word 'vary' it becomes clear that the word 'vary' means to change or to modify the form or character of a thing, to vary in some degree without making the entire change,
19. At this stage reference may also be made to various meanings of word 'vary' as given by the Oxford English Dictionary, Volume XII at page 57. On said page as many as ten meanings of the words 'vary' are given, but for the purpose of present discussion and context, in our opinion, following three meanings would serve the purpose. At item No. 2 the word 'vary' is stated to mean to differ, to exhibit or present divergence from something else. At item No. 8 the word 'vary' is stated to mean to cause, to change or alter, to introduce changes or alterations into something, to adapt to certain circumstances or requirements by appropriate modifications. While describing the usage of the word under the aforesaid meaning at Item No. 8 the dictionary refers to following sentence:
The Court, after such notice...may vary such order in such manner...as it may think fit.
From the aforesaid meanings of the word 'vary' it becomes clear that in its transitive form the word means to change or to alter or to introduce changes or alteration into something though it must be stated that as far as possible the identity of the thing 'order' sought to be varied should remain.
20. Similarly, in 'Words and Phrases Legally Defined' by Butterworths (Third Edition) Vol. 4, p. 383, the word 'vary' is stated to have different meanings in different context. It is thereafter stated as under:
Probably it is enough to say that to vary the terms of the award is to change them in part whether by addition, by excision, by modification or by substitution or by qualification or otherwise.
It is thus clear that word 'vary' in the context in which it occurs in Section 60(3) would include power to alter or modify the order, which in its turn would mean that the entire identity of the order would not to be lost. The satisfaction of the externing authority for action under Section 56 shall have to be maintained if the order is to be varied either from that of actual externment to that of imposition of any condition or for reducing the period of externment or for reducing or deleting the districts from which the proposed externee is to be externed. In all such situation, the appellate authority is exercising power of varying the order and yet it can be said that identity of the requisite satisfaction is left intact or is not wholly disturbed. This is the meaning which the word 'vary' carries in the context of Section 60(3) of the said Act and, therefore, in our opinion, when the appellate authority sets asides the order of externment and directs the externee to comply with other conditions which would fall in first part of the two alternatives, he is acting absolutely within his jurisdiction and power under Section 60(3) of the said Act and such an order cannot be said to be beyond his jurisdiction or power or beyond the scope of Section 60(3) of the said Act.
21. Re-submission No. 2: Mr. Jayesh A. Dave and Anil S. Dave, Learned Counsels appearing for the petitioners very strenuously urged before this Court that if such power to vary, the order of externment is to be read in Section 60(3) of the said Act and is to be conceded to the appellate authority, the appellate authority must record reasons and must record satisfaction as to why it substitutes the order of externment by less drastic order of imposition of some conditions such as furnishing bond of good behaviour for a requisite amount or requiring the externee to report to nearest police station or other identical permissible conditions. They very strenuously urged before this Court that having recorded the finding that the order of externment is not required to be confirmed and having decided to allow the appeal, the only option available to the appellate authority was to set aside the order of externment and it was not permissible for the appellate authority to pass any other order or to call upon the externee to conduct himself in such a manner as is directed (consistent with the first alternative stated hereinabove).
22. Need to record reasons by Appellate Authority: The Learned Counsel appearing for the petitioners very strenuously urged before this Court that since order passed by the appellate authority under Section 60(3) is not in every respect final and is subject to judicial review on grounds stipulated in Section 61 of the said Act and since such order passed by the appellate authority can also be challenged under Articles 226 and 227 of the Constitution of India by instituting a writ petition in the High Court, unless reasons are recorded by the appellate authority it would become impossible for the High Court or higher forum to know as to why the appellate authority has decided to vary the order and as to why it has set aside the order of externment. In their submission the very judicial review of such appellate order would become impossible in absence of compliance with the requirement of giving reasons under Section 60 of the said Act.
23. The Learned Counsel in this connection invited attention of the Court to the recent decision of the Constitution Bench of the Supreme Court in the case of S.N. Mukherjee v. Union of India, reported in : 1990CriLJ2148a . The Constitution Bench of the Supreme Court was called upon to decide the question of recording reasons by administrative authority in the context of the provisions of Army Act, 1950 and Army Rules, 1954. In Para 9 of the report, the Supreme Court referred to two fundamental questions which arise for consideration one of which is as under:
Is there any general principle of law which requires an administrative authority to record the reasons for its decision.
Having so formulated the question, the Court proceeded to consider the development of administrative law in United States and in England and quoted extensively both from the text-books as well as from the English decisions, the Statement of law. The Courts have insisted upon the recording of reasons for its decision by administrative authority on the premise that the authority should give clear indication that it has exercised the discretion with which it has been empowered because 'administrative process will best be vindicated by clarity in its exercise.' Secondly, it is stated that if reasons are recorded, judicial review becomes easy and the Courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review and that 'the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed.' It was in this context that oft-quoted saying of Lord Denning, M.R. is also referred to the effect that 'the giving of reasons is one of the fundamentals of good administration'.
24. It is stated that failure to give reasons amounts to denial of justice and a party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. An important consideration which has weighed with the Court for so holding is that such a decision is subject to the appellate or revisional jurisdiction or supervisory jurisdiction of the High Court. The reasons, it recorded, would enable the Court to effectively exercise the appellate, revisional or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would:
(i) guarantee consideration by the authority;
(ii) introduce clarity in the decision; and
(iii) minimise chances of arbitrariness in decision-making.
25. Having so summarised the Statement of law after exhaustive review of its earlier decisions, the Court observed in Para 35 as under:
Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge,
26. The Court thereafter proceeded to examine the legal basis for imposing this obligation. It referred to the report of Donough-more Committee holding that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. Prof. H.W.R. Wade has also expressed the view that 'natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man's sense of justice'. In para 39 the Court observed as under:
For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decisions.
27. Even prior thereto as back as 1976 P.N. Bhagwati, J. (as His Lordship then was) speaking for the Apex Court in the case of 'The Siemens Engineering . v. Union of India, reported in : AIR1976SC1785 , without reference to report of Donoughmore Committee quite independently made following pertinent observations:
It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai v. Testeels Ltd. C.A. No. 245 of 1970 decided on 17-12-1975 (SC).
If Courts of law are to be replaced by administrative authorities and Tribunals, as indeed, in some kinds of cases, with the proliferation of administrative law, they may have to be so replaced; it is essential that administrative authorities and Tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and Tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alterant partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.
28. From the aforesaid quotations, both the Counsels appearing for the petitioners strenuously urged before this Court that the appellate authority was duty bound to give reasons more particularly when it was not conforming the order of externment, but when it was varying the order and when it was imposing conditions consistent with first alternative out of the two alternatives available to it. Unless reasons for such alternatives or variations are made known to the Court, the Court in the exercise of its power under Article 226 or 227 will not be in a position to judicially review such order, submits the Learned Counsel.
29. The aforesaid submission though may appear to be attractive at the first blush, may not stand judicial scrutiny if the nature of the power to be exercised by externment authority and the nature of the action to be taken by such authority is taken into consideration. This Court is not treading in the virgin field and the law is very clearly stated by a very strong Full Bench of this Court in the case of Sandhi Mamad Kala v. State of Gujarat, reported in (1973) XIV GLR 384. The Chief Justice P.N. Bhagwati (as His Lordship then was). Justice D.A. Desai (as His Lordship then was) and Justice T.U. Mehta (as His Lordship then was) were called upon to consider the question as to whether an appellate authority exercising power under Section 60 of the said Act was required to record reasons and as to whether a non-speaking order was vitiated. The following two questions were referred to the Full Bench-(1) whether the authority under Section 56 of the Bombay Police Act, 1951, while passing an order of externment is bound to give and disclose reasons in support of its order ! (2) Whether the State Government exercising its power in Appeal against an order of externment under Section 60 of the Act is bound to give and disclose reasons in support of this order !
The aforesaid questions were answered by the Full Bench of this Court in the negative.
To a question as to what is the nature of function which the externing authority is discharging, following answer was given in Para-10 of the judgment, which we reproduce in its entirety:
10. We must then proceed to consider the nature of function discharged by the externing authority under Section 56. Now so far as the portion of that section relevant for our purpose is concerned, it is clear on a plain grammatical construction of its language, that in order to attract its applicability, two conditions must be satisfied. First, the externing authority must be satisfied that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code or in the abetment of any such offence and secondly, in the opinion of the externing authority, witnesses should not be willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. Now these matters in respect of which the externing authority is required to be satisfied before an order of externment can be passed by it, are not all matters susceptible of objective determination. The determination of these matters is deliberately left by the legislature to the subjective satisfaction of the externing authority. The externing authority may be the Commissioner or the District Magistrate or the Sub-Divisional Magistrate, specially authorised in this behalf by the State Government. Each of these officers is charged with the duty of maintaining law and order and preventing commission of offences and for this reason, the power conferred under Section 56 which is a power in aid of this function, is advisedly entrusted to these officers. These officers acting as externing authority would also by reason of their long experience and special expertise, be best fitted to decide whether the movements or acts of any person are calculated to cause alarm, danger or harm to person or properly or there are reasonable grounds for believing that such person is about to be engaged in the commission of offence. Moreover, even after the externing authority is satisfied about these matters, it would still have to consider whether any preventive action should be taken against the person concerned under the section. The externing authority would have to take into account various considerations such as the nature of the activities of the person concerned the degree of probability of continuance of such activities, the gravity of the apprehended harm, the need for public security or maintenance of law and order and the requirement of public interest. The externing authority would also have to consider what preventive action should be adopted against the person concerned, or, in other words, what is the extent to which his freedom should be curtailed. Section 56 places two alternatives before the externing authority so far as the nature of the action to be taken by it is concerned. The externing authority may direct such person so to conduct himself as shall seem necessary in order to prevent violence and alarm or extern him from the areas within the limits of his jurisdiction or such area and any distiictor distiicts or any part thereof contiguous to it. The externing authority would have to choose between these two alternatives and decide what in the circumstances of the case is the better course to adopt in order to mitigate the evil. These are all matters which must necessarily be decided by the externing authority in its subjective satisfaction. They are by their very nature not amenable to objective determination and could not be intended to be judged by objective standards They are essentially matters which have to be administratively determined for the purpose of taking preventive action. To hold that these matters must be judicially determined would be to introduce an element which would rob the power of externment of much of its efficacy as a preventive measure. Moreover, it is difficult to imagine that the legislature could have ever intended that the decision of the externing authority on these matters should be liable to be subjected to judicial scrutiny, which it would necessarily be, if it were held to be a quasi-judicial decision. Such a decision in exercise of a power of this kind could hardly be a fit subject-matter for judicial reviewability. The analysis of the function to be discharged by the externing authority also, therefore, clearly suggests that it is an administrative and a not quasi-judicial function.
30. From the aforesaid observations it becomes clear that the powers which the externing authority is discharging are stated to be purely administrative. Such power is also declared to be neither quasi-judicial nor judicial. Having so stated, the Court posed the question as to whether even if an order of externment is administrative as distinguished from quasi-judicial, was there any obligation on the externing authority to give reasons in support of it and the answer to the question is to be found in para-12, which is reproduced hereunder:
12. The question which then arises for consideration is, whether even if an order of externment is administrative as distinguished from quasi-judicial, there is any obligation on the externing authority to give reason in support of it. The petitioner contended that even an administrative order must be supported by reasons and the argument advanced in support of this contention was that furnishing of reasons is a part of the rules of natural justice and since rules of natural justice are now held to be applicable alike to administrative orders as to quasi-judicial orders, the Court must import the necessity of giving reasons even in case of an administrative order. We do not think this contention is well founded. It is based on a misconception that disclosure of reasons is a pan of the rules of natural justice. It is no doubt true that the England, Franks Committee has pleaded that the duty to give reasons should be regarded as a rule of natural justice but that plea has not yet found favour with the Courts in England and even now, in England, apart from cases covered by the Tribunals and Inquiries Act, 1958, there is no obligation on statutory authorities to give reasons in support of the orders made by them. We have, of course, in this country taken the law a littler further by holding that, in case of quasi-judicial orders, reasons must be given, but that is not on the basis that the duty of giving reasons is a rule of natural justice. We have not resorted and indeed we do not have to resort to the expedient of characterising the necessity of giving reasons as a rule of natural justice in order to import it as a necessary ingredient of quasi-judicial orders. We have read the duty to give reasons in case of quasi-judicial orders as a principle of administrative law. But that is where the matter rests and we do not think it expedient or desirable to extend the duty to give reasons to administrative orders.
It is true that aforesaid underlined observations of P.N. Bhagwati, C.J. speaking for the Fall Bench of the Gujarat High Court are quite inconsistent with or diametrically opposite to the observations made by P.N. Bhagwati, J. as Judge of the Apex Court in the case of The Siemens Engineering . (supra). Such observations are also inconsistent with the subsequent observations of the Constitutional Bench of the Supreme Court of India in the case of S.N. Mukherjee (supra). It is no longer now correct to state that disclosure of reasons is not a part of the rules of natural justice. Nor is it correct to assert that a quasi-judicial order need not contain reasons. The observations of the Full Bench of this Court in para 12 of the report in the case of Sandhi Mamad Kala (supra) are, therefore, no longer laying down the correct law. The said observations must be treated as impliedly overruled by the subsequent observations of the Supreme Court as extracted hereinabove in the aforesaid two cases.
31. To the question as to whether appellate authority was required to record reasons especially when the power was quasi-judicial in nature, the answer of the Full Bench is as under:
18. That takes us to the next question whether an appeal against an order of externment is a quasi-judicial proceeding and the State Government is under a duty to act judicially in disposing of the appeal. Now all the reasons which have weighed with us in taking the view that the power exercised by the externing authority in making an order of externment is administrative and not quasi-judicial are wholly applicable to the determination of the question whether the power exercised by the State Government in disposing of the appeal is quasi-judicial. The State Government as the appellate authority is bound to examine the question before it in the same manner as the externing authority by taking into account various considerations of policy or expediency which are not matters of objective assessment but which rest on the subjective satisfaction of the deciding authority. The nature of the power and the manner of its exercise do not change when the proceeding goes higher from the externing authority to the Stare Government, Then again the State Government can look at the part of the record consisting of the statements of the witnesses, without disclosing it to the proposed externee and decide the appeal on the basis of such record The same objection as regard judicial reviewability by reason of a part of the record being withheld from the proposed externee would arise also in the case of an appeal as in the case of the proceeding before the externing authority and the same impracticability of giving reasons without disclosing a part of the record to the proposed externee, which affects the exercise of power by the externing authority, would also affect the disposal of the appeal by the State Government. We are unable to see how the State Government could be regarded as exercising quasi-judicial power while disposing of the appeal, la fact, as pointed out by the Supreme Court in the passage quoted by us from the judgment in Hari Gawali v. Dy. Commissioner of Police (supra), the determination of various matters necessary for the purpose of deciding whether, and if so, what preventive action should be taken, is left by the legislature to the subjective satisfaction of the authorities which include the State Government.
It cannot, therefore, be laid down as an absolute proposition that whenever there is a right of appeal given against an order made by a statutory authority, the appellate authority would be under a duty to act judicially the disposing of the appeal. The question whether the State Government is exercising a quasi-judicial power or an administrative power in disposing of the appeal would depend on various considerations to which we have already adverted. This decision of the Supreme Court does not compel us to reach a conclusion different from the one we are otherwise inclined to take. We accordingly hold that the State Government disposing of an appeal against an order of externment is not under a duty to act judicially and does not exercise a quasi-judicial power. No obligation to give reason can, therefore, be imported in the exercise of the power of the State Government in disposing of the appeal.
32. It at once becomes clear from the aforesaid observations that the function which an externing authority discharges is purely an administrative function. Sections 55 to 57 are mainly meant to prevent a person who has been proved to be a criminal from acting in a way which may be a repetition of his criminal propensities. In doing so the State may have to curb an individual's activities and put fetters on his complete freedom of movement and residence in order that the greatest good of the greatest number may be conserved. The law is based on the principle that it is desirable in the larger interests of society that the freedom of movement and residence of a comparatively fewer number of people should be restrained so that the majority of the community may move and live in peace and harmony and carry on their peaceful avocations untrammelled by any fear or threat of violence to their person or property. The individual's right to reside in and move freely in any part of the territory of India has to yield to the larger interest of the community. That the Act is based on sound principle cannot be gainsaid. Now, the only question is whether the provisions of the impugned section are not justified in the larger interest of the community, or in other words, whether they impose a larger restriction that is reasonably necessary to meet the situation envisaged by the section. It is thus clear that for such power in the very scheme of the Act, the power is purely administrative and reasons are there with the authority which in the nature of the power are not required to be disclosed. To the question as to whether appellate authority should also disclose reasons or give reasons, the answer is that since appellate authority while deciding appeal is not under a duty to act judicially and does not exercise a quasi-judicial power, is not under any obligation to give reasons.
33. Even in the case of S.N. Mukherjee (supra) the Apex Court noted that the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves the object of preventing miscarriage of justice and secures fair play inaction. It achieves this objects by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. It was in this context, that the Constitutional Bench held that the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The further observations made by the Constitutional Bench in para 38 are apposite for the purposes of this discussion. They are as under:
The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of particular power by an administrative authority including exercise of judicial or quasi-judicial function the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion con also arise by necessary Implication from the nature of the subject-matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore be insisted upon in such a case.
34. From the aforesaid observations it becomes clear that it is open to the Legislature either expressly or necessary implications to exclude or dispense with the requirement of recording reasons if larger public interest so demands. The nature of the subject-matter, the nature of power, the purpose for which the power is to be exercised, the scheme of the provisions and the Act and hazards of consequence which may flow from the disclosure of reasons are few of the relevant factors which shall have to be taken into account and ultimately it is public interest which shall have to be kept in mind, more particularly, in the context of such a statute or provision the object of which is to keep the criminals beyond the area of their criminal activities or to keep them under adequate control. As against the individual interest of such criminal, societal or public interest of the entire society is to be balanced and if Legislature either expressly or by necessary implications excludes the requirement of recording reasons, we are of the opinion that such requirement, even though read in the context of exercise of administrative power or quasi-judicial power cannot be read in the context of the appellate power of the nature to be exercised by the appellate authorities against an order of externment. Therefore, despite advancement and development of law, subsequent to the decision of the Full Bench of the Gujarat High Court in the case of Sandhi Mamad Kala (supra) except to the extent pointed out hereinabove, it shall have to be held that the said decision still holds the field and even the appellate authority is under no obligation to give and communicate reasons for its decision.
35. In the conclusions which we have reached, we are further fortified by decision of the Supreme Court in the case of State of Maharashtra v. Salem Hasan Khan, reported in : 1989CriLJ1155 . The challenge before the Supreme Court was to an order of externment as confirmed in appeal by the appellate authority and the main challenge was on the ground that neither order of externment nor that of the appellate authority was a speaking order. In the facts of the case before the Supreme Court, order of externment as well as that of appellate authority were challenged before the Bombay High Court and the High Court set aside the order of the appellate authority, viz., the State Government on the ground that the State Government omitted to give reasons in support of the order of dismissal of the appeal. The said judgment of the Bombay High Court was under challenge before the Supreme Court and reversing the judgment and order of the Bombay High Court, the Supreme Court made following pertinent observations:
As observed, if the authorities were to discuss the evidence in the case, it would be easy to fix the identity of the witnesses who were unwilling to depose in public against the proposed externee. A reasoned order containing a discussion would probably spark off another round of harassment. We are, therefore, of the view that the High Court was in error in quashing the order as confirmed by the State Government in appeal.
36. It is thus clear that neither at the stage of initial exercise of power by the externing authority nor at the stage of appeal, there was any need of recording any reasons. The power itself is of such a nature that recording of reasons would frustrate the object of keeping criminals on a harm's way. If that is the objective which is to be achieved, we cannot accede to the submissions made by the Learned Counsel appearing for the petitioners that reasons are required to be recorded by appellate authority under Section 60(3) of the said Act.
37. Before we part with these matters, we would like to place on record the fact that the manner in which the order is approved by the appellate authority leaves much to be said. In Special Criminal Application No. 1071 of 1993, against this very Officer, the Division Bench comprising of K.G. Shah & K.R. Vyas, JJ. on 15th July, 1993 has serious grievance to make and in para 2 of the said judgment the Division Bench observed as under:
It is distressing that within the span of one week, we have come across a second matter wherein the order of extertinent passed by the exteming-authority has been dealt with by the same Deputy Secretary Mr. J.M. Parmar, acting on behalf of the State Government in the Home Department (Special), wherein it is manifest that the Deputy Secretary, either does not know the way in which the appellate powers conferred upon the Government under Section 0 of the ponday Police Act have to be exercised, or that he does not understand what he writes in his appellate order. The aforesaid observation of ours will be immediately clear when we narrate the facts of the case.
38. The Division Bench has also drawn the attention of the Chief Secretary, Government of Gujarat and sent a copy of the judgment for appropriate action. In the case before us, once again we are of the opinion that order passed by the appellate authority is not proper and has given rise to much of confusion. It has in fact categorically stated that having considered the entire record, evidence and legal and oral submission, it was satisfied that there were no proper and sufficient reasons to pass an order of externment and therefore, the order of externment was not liable to be confirmed. However, it has, thereafter proceeded to impose conditions. The order which is communicated to the petitioners may give an impression that the appellate authority was even not agreeing with the satisfaction recorded by the externing authority for passing an appropriate order under Section 56 of the Act. Mr. M.R. Raval), learned Addl. Public Prosecutor, however, was at pains to submit before us that though order of appellate authority is unhappily and poorly worded, the authority was quite alive to its duties and it has recorded reasons in its file, which go to prove that it wanted to sustain the satisfaction reached by the externing authority, but it simply wanted to vary the more drastic order to a less drastic order by resorting to alternative one and not by resorting to power of externment.
39. We have gone through the reasons recorded by the appellate authority in its file and we are more than convinced that the appellate authority has in fact sustained the satisfaction reached by the externing authority but has only decided to vary the final order from that of externment to that of imposition of some less drastic condition. Therefore, even though the order is unhappily worded, we are of the opinion that the same shall have to be upheld and we uphold the same.
40. Aforesaid were the only submissions made by the Learned Counsel appearing for the petitioners. Since we do not find any substance in any of the submissions, the petitions must fail. In the result Special Criminal Application No. 1311 of 1993 and Special Criminal Application No. 1473 of 1993 fail. Rule is discharged.