N.P. Chapalgaonker, J.
1. It is alleged that the petitioner was indulging in extortion of money and valuable articles from the residents and shop keepers of the localities of CIDCO, HUDCO, GAOLIPURA of the city of Aurangabad and two offences were registered against him as Crime No. 68 of 89 under section 399, 402 of I.P.C. at the CIDCO Police Station, Aurangabad and Crime No. 121 of 89 under section 379 I.P.C. at Kranti Chowk Police Station, Aurangabad. It was further alleged that the residents and shop keepers of the said localities living under the threats of assault and deterred by the behaviour of the petitioner, are not coming forward to depose against him and it is necessary that action under section 56 of the Bombay Police Act, 1951 be taken against the petitioner. Sub-Divisional Magistrate, Aurangabad by his order dated 25-4-1990 after hearing petitioner, was pleased to pass order that the petitioner should remove himself from Aurangabad and Jalna district for a period of two years. This order was passed on 25-4-1990.
2. Thereafter, on 23-4-1990, petitioner preferred an appeal under section 60 of the Bombay Police Act, 1951 to the State of Maharashtra. By a communication dated 25-6-1990, Assistant Secretary to the Ministry of Home (Special) of the Government of Maharashtra informed the Advocate for the petitioner that his appeal had been admitted but the date and time of the hearing shall be informed to him lateron. However, when the petitioner was awaiting further communication from the State Government informing him date of hearing of the appeal, the State Government came with an order allowing his appeal only partly and the area from which the petitioner was externed was limited to Aurangabad district only. This order is dated 14-8-1990. The main grievance of the petitioner, as submitted by Shri Moulvi, learned Counsel for the petitioner, is that the order passed by the State Government on 14-8-1990 is without jurisdiction inasmuch as no hearing was given to the petitioner as is required Shri Moulvi invited my attention to sub-section (3) of section 60 which reads as under -----
(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.
It is his submission that either the petitioner will have to be heard personally or through his Pleader or Advocate or an Attorney and this only can constitute reasonable enquiry within the meaning of sub section (3) of section 60. A specific allegation has been made in paragraphs 4 and 5 of the petition and in Ground No. IV that the opportunity of hearing either personally or through affidavit was not given to the petitioner and this is a clear violation of the provisions of section 60 of the Bombay Police Act. In an affidavit-in-reply filed by the Sub-Divisional Magistrate, Aurangabad, the contents of Ground No. IV have been replied in para 3 but the contention raised in the petition has not been denied or controverted. It has not been said that the hearing was given by the State Government. In fact, in such a case, wherein the allegation was that the State Government had not given hearing, it would have been proper for the State Government to meet case either by filing affidavit of the person who is given hearing or by producing some record of the Government of Maharashtra to show that the petitioner or his Advocate was served with the notice giving them opportunity of hearing. In the absence of such evidence coming forward in reply to the allegation made by the petitioner, it is not possible to hold that any opportunity was given by the State Government while hearing the appeal of the petitioner under section 60 of the Bombay Police Act, 1951.
3. Even the order passed in the appeal on 14-8-1990 does not reveal that the opportunity of hearing was given to the petitioner. The power given under section 60 of Bombay Police Act, 1951 is not purely the executive of power and if the appellate authority has to apply its mind, it would contemplate hearing to the appellant and the other parties. In the instant case, statute was not left the question of requirement of observance of the principles of natural justice for an inference, but has specifically provided in sub-section (3), that hearing shall be given either personally or through an Advocate. Since this was done, jurisdiction under section 60 was not validly exercised. Though the very nature of the proceedings under sections 56 to 59 of the Bombay Police Act would not require a detailed reasoning and a detailed discussion about the evidence produced against person to be externed, there should be some indication that the authorities have applied their mind and the statutory requirement of the hearing is complied. In the absence of this, the power is not legitimately exercised. If the statute has laid down that the power is to be exercised after hearing the person affected, it is to be exercised that way alone and no other way can be held to be a proper exercise of the power under section 60 of the Bombay Police Act. Supreme Court in the case of Hukam Chand Shyam Lal v. Union of India, reported in : [1976]2SCR1060 , has observed thus :---
'It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice.'
The jurisdiction under section 60 of the Bombay Police Act not only given power but it also casts a duty on the State Government to apply its mind after giving due hearing as is required under sub-section (3).
4. In this view of the matter, the criminal writ petition deserves to be allowed. The order passed on 14-8-1990 in File No. Ext. 1090/135/Special Branch - 5 by the Assistant Secretary (Special) of the State of Maharashtra dismissing the appeal of the appellant filed by him under section 60 of the Bombay Police Act challenging the externment order dated 25-4-1990 is hereby quashed. The matter is remanded back to the State Government for hearing petitioner and then disposing of the appeal by passing a fresh order considering the contentions raised by the petitioner as well as the data made available by the externing authority. Rule made absolute in the above terms. There will be no order as to the costs.