1. This is an application on behalf of one Khudi Prosad Bhakat alias Teli, under Article 226 of the Constitution, for the issue of a writ in the nature of mandamus or certiorari upon the District Magistrate of Birbhum directing him to withdraw the order of externment dated 22-5-1950, passed on the applicant and for such other order as to the Court seem fit and proper. On this application, a Rule was issued on the District Magistrate to show cause why such a writ should not be issued upon him and why such further or other order should not be made as the Court thinks fit and proper.
2. Before I deal with the merits of the application I must refer to the procedure adopted by the respondents for showing cause. What has been done is that the District Magistrate Birbhum has addressed a letter to the Assistant Registrar of the High Court in its Appellate Side, in which he has stated certain facts and has further asked that the order of externment being of administrative importance, the Legal Remembrancer should be requested to have the State represented in the proceedings on the relevant date fixed for the hearing of the Rule. A11 have before me is this letter, which does not even purport to be addressed to the Court nor does it deal with the petition in proper sequence and, needless to say, is not on oath. And the most objectionable part of it is that the other side has not got a copy of it and at the hearing of the Rule knows nothing about it or the contents thereof. At the hearing of the Rule the respondents have been represented by the Senior Government Pleader and I have had his able assistance. It is however not enough to appear at the trial through a lawyer. It is not at all satisfactory that the respondents in these matters should be allowed to show cause by writing such letters, and, strictly speaking, I should say that the respondents have shown no cause whatsoever. The facts stated in the petition with regard to the mala fides of the respondents give rise to every serious questions of fact. Also, the facts stated in the letter constitute serious charges against the applicant. It would be impossible to deal with such issues of facts unless there are pleadings of some sort containing statements for which someone must take the full responsibility.
3. The learned Government Pleader has stated that one of the reasons why the Government is reluctant to use an affidavit is that it might have to disclose confidential police documents which might be prejudicial to the State. I do not think that this is a reason for proceeding in such an informal manner as has been sought to be done. The application is under Article 226 of the Indian Constitution which, as we all know, concerns very important matters including the liberty of the citizen and the protection of his fundamental rights guaranteed by the Constitution. Such applications are to be taken seriously and in this respect the Government is by no means, a favoured litigant and must comply with the normal procedure to be adopted in all legal proceedings. If in showing cause, the Government is of the opinion that disclosure of any fact or document will be injurious to the State, it is its duty to allege so, and it will be for the Court to decide the point. I am informed that at the moment there are no specific rules as to what procedure should be followed in such cases but until special rules are framed, I think that the ordinary rules should be followed and the allegations in the petition should be answered by an affidavit in opposition filed by the respondent copy whereof should be furnished to the applicant in good time before the date fixed for hearing and the applicant will be at liberty to use a reply, also furnishing copies to the respondent.
4. Now, coming to the merits of this case, the applicant has taken four points; (1) that the order is not in conformity with Section 21 (1) of the Security Act, (2) that smuggling of paddy is not a 'subversive Act' as defined in the said Act; (3) that the order is mala fide; and (4) that Section 21 of the Security Act is void as it is repugnant to the Constitution and infringes the fundamental rights guaranteed by it. and in particular Article 13 and Article 19(l)(d).
5. I shall first deal with point No. 1 because this application can be disposed of on this point alone and it will not be necessary to go into the other points. The order complained of is as follows:
'Whereas having considered the materials against the person known as Khudu Prasad Teli son of late Rameswar Prasad Teli of Nalhati 'Bazar Police Station, Nalhati, District Birbhum, I am satisfied that with a view to preventing the said person from doing any subversive act it is necessary to make the following order. Now therefore in exercise of the powers conferred by clause (a) of sub Section (1) of Section 21 of the West Bengal Security Act, 1950, .... I hereby direct'. . . '
6. In my view, this order is clearly not in compliance with Section 21' (1) of the Security Act. This point is covered by a decision of a Division Bench of this Court consisting of the learned Chief Justice and Mr. Justice Mitter: Amrita Lal v. The State, reported in 54 Cal. W. N. 823. In that case also the order was exactly in a similar form. The learned Chief Justice held there that such an order is not in conformity with Section 2l(1)(a). He stated as follows:
'It appears to me that before an order can come within Section 21 (1) (a), the authority's satisfaction that the person against whom the order is made is doing or is about to do or is likely to do an act must be stated. Without a recital of that satisfaction the order is not in my view in accordance with the Act.'
7. The learned Government Pleader appearing on behalf of the respondent conceded that this order under Section 21 (1) (a) cannot be supported.
8. Since the order complained of is not in accordance with law, it infringes the fundamental rights of the applicant and cannot be allowed to stand and must be set aside and/or quashed.
9. I therefore make an order setting aside and/or quashing the order dated 22nd May 1950 passed by the District Magistrate, Birbhum, against the petitioner and direct the said officer to withdraw the said order.
10. The Rule is accordingly made absolute.
11. The respondent will pay the costs of the applicant, the hearing-fee being assessed at two gold mohurs.