BHIM SAIN TYAGI Vs. STATE OF U P

JUDGEMENT

(1.) THROUGH this writ petition the petitioner has prayed for a writ in the nature vfcertiorari tor quashing a notice dated 23-1-98 issued by the Apar Zila Magistrate (Addl. District Magis trate), Mahamaya Nagar, under Section 3 of the U. P. Control of Goondas Act, 1970. Amongst other grounds, it was stated that the Addl. District Magistrate (for short, ADM) could not have issued the notice. It was further stated that the notice was bad in terms of decision of the Allahabad High Court in the case of Ratnji Pandey (as reported in 1981 Crl. L. J. 1983 ). The learned AGA took up a preliminary objec tion stating that the notice was merely for showing cause and the petitioner should have approached the authority who issued the notice and should have raised all the points regarding illegality of the notice and the grounds mentioned there in and in view of the existence of an alternative remedy, the present writ petition was not maintainable.

(2.) SO far the first point is concerned, papers were placed before us by the learned AGA to show that the ADM was specifically empowered by the State Government in this behalf. The definition of the term 'district Magistrate' as given in the U. P Control of Goondas Act includes an Addl. District Magistrate specifically empowered by the State Government in that behalf. When there had been such empowerment, as per papers produced before us, the first objection taken by the petitioner is not sustainable.

(3.) LEARNED AGA further relied on a recent (unreported) decision of another Division Bench of this High Court in Crl. Misc. Writ Petition No. 1626 of 1997, Bhunesh Misra v. State of U. P. [since reported in 1998 JIC 186 (All)]. We had called for the records of this case and perused the judgment in it. Here also a notice under the U. P. Control of Goondas Act was challenged in a petition under Article 226 of the Constitution and a preliminary objection was taken on the ground of alternative remedy. The Division Bench relied on the decision given in Ballabh Chaubey's case (supra) and dismissed the writ petition on the ground that the objection could be raised before theauthority issuing the notice.