TMI Blog2005 (4) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... es were not willing to give evidence in public against him because of the fear of danger to their person and properties. There was no written reply to the notice, but the noticee appeared and examined a witness to show that he was innocent. After the grant of further opportunities appellant no.5- Additional Deputy Commissioner of Police passed an order under Section 47 of the Act directing that the respondent should remove himself beyond the limits of NCT of Delhi for a period of one year w.e.f. 25.12.2002. He was permitted to attend the courts at Delhi on all the dates of hearing and thereafter immediately remove himself out of the limits of NCT of Delhi, but not to visit any place except courts premises. The relaxation was only for the date of hearing for the cases before the Courts. The contents of the order were explained to him and a copy was also delivered to him. The order was challenged before the Lieutenant Governor of Delhi who rejected the appeal under Section 51 of the Act. A writ petition was filed before the Delhi High Court. By the impugned judgment a learned Single Judge quashed the order observing that pre- requisites for passing an order under Section 47 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person are causing or are 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, Chapter XVI, Chapter XVII or Chapter XXII of the Indian Penal Code or under Section 290 or Section 498A to 489E (both inclusive) of that Code or in the abatement of any such offence; or (c) that such person - (i) is so desperate and dangerous as to render his being at large in Delhi or in any part thereof hazardous to the community; or (ii) has been found habitually intimidating other persons by acts of violence or by show force; or (iii) habitually commits affray or breach of peace or riot, or habitually makes forcible collection of subscription or threatens people for illegal pecuniary gain for himself or for others; or (iv) has been habitually passing indecent remarks on women an girls, or teasing them by overtures; and that in the opinion of the Commissioner of Police witnesses are not willing to come forward to give evidence in public against suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in any court except on the ground - (a) that the Commissioner of Police or the Administrator, as the case may be, had not followed the procedure laid down in sub-section (1), sub- section (2) or sub-section (4) of Section 50 or in Section 51, as the case may be; or (b) that there was no material before the Commissioner of Police or the Administrator, as the case may be, upon which he could have based his order; or (c) in the case of any order made under Section 47 or an order in appeal therefrom to the Administrator under Section 51, the Commissioner of Police or the Administrator, as the case may be, was not of the opinion that witnesses were unwilling to come forward to give evidence in public against the person whom such order has been made. Section 47 consists of two parts. First part relates to the satisfaction of the Commissioner of Police or any authorized officer reaching a conclusion that movement or act of any person are causing alarm and danger to person or property or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in commission of enumerated offences or in the abetment of any such offence or is so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to have given reasons in support of the order dismissing the appeal. Its failure to state reasons shows non- application of mind; and (v) The order of externment imposes unreasonable restrictions on the personal liberty of the appellant in that, whereas his activities are alleged to be restricted to an area within the jurisdiction of the Vila Parle Police Station, the order of externment not only extends to the whole District of Greater Bombay but to the District of Thana also. In para 14 of the judgment this Court dealt with third and fourth point and held as follows: The third and fourth points have the same answer as the second point just dealt with by us. Precisely for the reasons for which the proposed externee is only entitled to be informed of the general nature of the material allegations, neither the externing authority nor the State Government in appeal can be asked to write a reasoned order in the nature of a judgment. If those authorities were to discuss the evidence in the case, it would be easy to fix the identity of witnesses who are unwilling to dispose in public against the proposed externee externess. A reasoned order containing a discussion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national security. May prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney General's prerogative to decide whether to institute legal proceedings on behalf of the public interest.'' (Also see Padfield v. Minister of Agriculture, Fisheries and Food, (LR (1968) AC 997). The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient. The famous case commonly known as The Wednesbury's case is treated as the landmark so far as laying down various basic principles relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistrative action were further summarized in 1985 by Lord Diplock in CCSU case as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that case as follows: Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality', the second `irrationality' and the third `procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community.'' Lord Diplock explained ``irrationality'' as follows: By `irr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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