MATHUR, J. - (1.) BY this petition for writ a challenge is given to the validity, property and correctness of the order dated 8. 03. 1996 passed by the Collector Cum District Magistrate externing the petitioner from the jurisdiction of the revenue district Churu as prescribed under Sub-section (3) of Section 3 of the Rajasthan Gunda Control Act, 1975 (hereinafter referred as the Act of 1975 ).
(2.) THE contention of the learned Counsel for the petitioner is that the provisions of Sub-section 3 of Section 3 of the Act of 1975 have already been declared illegal by Division Bench, of this Court being ultra vines to Article 19 (1) (d) and (e) of the Constitution of India, therefore, the order impugned is unsustainable. Division Bench of this Court in Devendra Jain vs. State of Rajasthan & Anr. (2002 (2) RLW 705) while considering the vires of Sub-section 3 of the Act of 1975 held as under:- " Keeping the above principles in mind if we examine Sub- section (3) of Section 3 of the Act we find that it gives arbitrary powers to the District Magistrate to remove a person from one district to another. The place selected by the District Magistrate may be one in which the person concerned may have no residential accommodation and no means of subsistence. It may not be possible for the person concerned to honestly secure the means of subsistence in the place selected. Sub-section (3) of Section 3 of the Act nowhere provides that the person directed to be removed shall be provided with any residence, maintenance or means of livelihood in the place selected. In the circumstances we are of the view that Sub-section (3) of Section 3 of the Act authorises the imposition of unreasonable restrictions in so far as it requires any person to reside or remain in such places selected by the District Magistrate. Article 19 (1) (d) and (e) of the, Constitution provide that all citizens shall have the right to move freely and to reside and settle throughout the territory of India but Article 19 (5) mandates that nothing in Sub clauses (d) and (e) shall affect the operation of any existing law in so far as it, imposes or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said. clause either in the interest of general public or for the protection of the interest of any Scheduled Tribe. The State is undoubtedly empowered to enact the law in the interest of general public by imposing reasonable restrictions restricting the right of citizen, provided under Article 19 (1) (d) and (e) of the Constitution and the Act was also promulgated for the control and suppression of Goondas with a view to the maintenance of public order but it imposes unreasonable restrictions which are not justifiable under Clause. (5) of Article 1 9 'of the Constitution and thus Sub-section (3) of Section 3 of the Act is ultra vines. Constitution Bench of Hon'ble Supreme Court in State of M. P. vs. Thakur Bharat Singh (3), propounded that imposition of restrictions requiring person to reside in such place without providing residence. Maintenance or means of livelihood would be unreasonable. The State or its officers in exercise of executive authority cannot infringe rights of citizens merely because Legislature of State has power to legislate in regard to subject on which executive order is passed. (15) Mr. S. M. Mehta, learned Advocate General urged that suitable directions may be issued to the State of redraft the provisions contained in Sub-section (3) of Section 3 of the Act but we are unable to accept this request as it is not the function of this Court to advise the State as to how the law may be redrafted so as to avoid conflict with the Constitution" The Hon'ble Division Bench in the case of Devendar Jain (Supra) for the reasons above held 'the provisions of Sub- section (3) of Section 3 of the Act of 1975 ultra vines, therefore, in view of decision of Division Bench of this Court, the order impugned dated 18. 03. 1996 has lost its foundation. The order impugned, therefore, deserves to be, quashed. Accordingly, this petition for writ is allowed. The impugned order dated 18. 03. 1996 passed by the Collector-cum- District Magistrate, Churu is quashed. The order passed by the Divisional Commissioner, Bikaner affirming the order dated 18. 03. 1996 passed@ by the Collector is of no consequence as the original order itself is declared bad and has been quashed. No order as to cost .;