IRFAN KHAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This petition under Article 226 of the Constitution has been filed challenging the order dated 18-11-2000 of Additional District Magistrate (Finance and Revenue), Bahpat. The impugned order is a very short one and it recites that the Station House Officers of different police stations had identified mischievous/criminal elements, who are likely to create disturbance during the forthcoming municipal elections. It further recites that he was satisfied from the report of the S.P. which in turn was based upon the report of the Station House Officers that the petitioner is likely to create disturbance in the forthcoming municipal election and it was not in public interest that he should remain within the limits of the district. Thus holding the petitioner to be a "goonda" he was externed from the limits of district Baghpat for a period of one month. Though the order does not mention anywhere that the proceedings were drawn under U.P. Control of Goondas Act, 1970 but on the top of the order it is mentioned as "case No. 255 under Sections 3 and 4 Goonda Act, State Versus Irfan".

(2.) We have heard learned counsel for the petitioner, learned A.G.A. for the State and have perused the record.

(3.) It is specifically averred in para 5 of the writ petition that the order has been passed without issuing any notice and without giving any opportunity of hearing. If the proceedings were initiated under U.P. Control of Goondas Act (hereinafter referred to as the Act), it was obligatory to issue notice to the petitioner under sub-section (1) of Section 3 of the Act informing him of the general nature of the material allegations against him and giving him a reasonable opportunity of tendering an explanation regarding them. The averments in the writ petition and also the contents of the order clearly show that no notice was issued to the petitioner and he was not afforded any opportunity of tendering an explanation. 'Goonda' has been defined in sub-section (b) of Section 2 of the Act. There is no finding that the petitioner comes within the expression 'goonda' as provided under the Act. No proceeding under the Act can be initiated against a person simply on the basis of a report by the S.H.O. that he is likely to create disturbance in the election. The power under the Act can be exercised on the basis of objective consideration of evidence and material and not on the basis of a report made by S.H.O. which itself is based upon his subjective satisfaction. Therefore, the impugned order is not only illegal but alsowholly without jurisdiction and cannot be sustained at all.