BHLM SAIN TYAGI Vs. STATE OF U P

JUDGEMENT

(1.) PALOK Basu, J. A Division Bench while hearing the petition of Bhim Sain Tyagi found that while in Ballabh Chaubey v. Addl. Dist. Magistrate (Finance), Mathura, 1997 All. LJ 1630:1997 JIC 519 (All) a Division Bench held that:- "the judgment of the Full Bench in Ramji Pandey v. State of U. P, 1981 (7) ALR 410 shows that the question, whether a writ petition should be entertained against a notice was not at all considered. The only question which was canvassed and was considered by the Bench was the notice was in accordance with the requirement of Section 3 of the Act. No such argument that a writ petition under Article 226 of the Constitution should not be entertained at the stage of notice seems to have been can vassed and therefore no decision has been given on this point. . . . . . . . . "the Full Bench having not considered the question of maintainability of the writ peti tion at the stage of notice the decision rendered by it cannot be held to be an authority 6t binding precedent for holding the writ petition to be maintainable. . . "in view of the reasons discussed above the writ petitions are dismissed on the ground of alternative remedy. " And also noticed that another Division Bench in Subas Singh v. D. M. , Ghazipur, 1997 ACC 262 : 1997 JIC 908 (All) has held that: "we without showing any difference and with due regard to the judgment in the case of Ballabh Chaubey (supra), we examined this case, whether impugned notice on the facts and circumstances of this case would render the subsequent proceeding illegal or not. If yes, it would be futile to send him there to participate in the subsequent proceedings. We having perused the notice and finding, on the facts of this case, the said notice to be directly in con tradiction with the judgment of the aforesaid 1999 (2) JIC Full Bench, which would make subsequent proceedings illegal, we feel it appropriate to exercise our discretion in this regard under Ar ticle 226 of the Constitution of India instead of rejecting the petition as not maintainable, hold the impugned notice to be illegal. "the petition is accordingly allowed. The impugned notice dated 16-11-1991 is quashed. However, it is without prejudice to the right of the respondents to issue fresh notice in accord ance with law. " and therefore on the finding that there was apparent conflict in the aforesaid two Division Bench decisions both of which proceeded to rely upon the judgment in Ram Ji Pandey (supra), referred the fol lowing two questions before a larger Beech? " (1) If the opportunity of show cause before the authority, who issues a show cause notice, not in conformity with the provisions of Section 3 (1) of the U. P. Control of Goondas Apt, could be considered an alternative remedy (2) if a writ petition may be refused to be entertained only on the ground of existence of an alternative remedy even though the Court finds a particular notice illegal which makes con sequential acts also illegal. "

(2.) UNDER the orders of the Hon'ble the Chief Justice a Full Bench of three Judges was constituted in which one of namely (Hon'ble S. K. Phaujdar, J.) was a Member, who happened to be the Senior Judge in Bhim Sen Tyagi's case which referred the two questions for considera tion by a Full Bench as noted above. Taking due note of some of the observations in Ramji Pandey, it formulated a third point and after refraining aforesaid two ques tions, recommended hearing of the matter by a Larger Bench because in the opinion of the said Full Bench some observations in Ramji Pandey required reconsideration. This is how this Bench has been con stituted by the Hon'ble the Chief Justice. The three questions which have come up for consideration are quoted in the refer ring order as under: " (1) Whether the view taken by a Full Bench of this Court in the case of Ramji Pandey v. State of U. P. (supra) to the effect that Clause (d) of the notice, which in fact is only the second paragraph of clause (c), under Section 3 (1) of the U. P. Control of Goondas Act alone intended to set out general nature of material allegations against the petitioner with a view to give him opportunity to submit his explanation and to defend himself and it is not possible to accept the contention that matters contained in column (a), (b) and (c) be read as a part of notice while looking at the contents of clause (d), is good law. In other words, whether the notice under Section 9 of the Act as a whole can be read as a composite notice, or whether parts (a), (b) and (c) must be disjointed and contents cannot be read as part of the far allegations of general nature against the son in the notice issued are concerned. " " (2) If the opportunity of show cause before the authority, who issues a show cause notice not in conformity with the provisions of Section 3 (1) of the U. P. Control of Goondas Act, could be considered an alternative remedy and (3) If a writ petition can be refused to be entertained only on the ground of existence of an alternative remedy even though the Court finds a particular notice illegal which makes con sequential acts also illegal. " Shri Tej Pal, Shri D. S. Mishra and some other learned counsel for the petitioners have been heard in support of the petitioner's argument. The respondents' case has been espoused by Shri P. M. N. Singh, learned Additional Ad vocate General assisted by Shri Arvind Tripathi, Addl. Government Advocate. Written arguments have also been filed by some of the learned counsel for the petitioners as well as by State which have been taken due (sic) note of. At the initia tion of the hearing of the matters there was a complete agreement on the part of the learned counsel for the parties that in case this Full Bench upholds the law laid down in Ramji Pandey subject to such clarifica tion as may be necessary regarding obser vations existing in paragraph 15 thereof, with or without modification as suggested through the referring order, if the answer to question No. 1 happens to be in the affirmative, no independent answer will be required for questions No. 2 and 3 noted above. As the very content of the question No. 1 noted above indicates that if the Full Bench decision in Ramji Pandey lays down the correct law, it will be implicit in the answer to the said question that a person who will thus be deprived of submitting the proper facts and explanation to the show-cause notice, shall be within his rights to challenge the proceedings initiated through the said show-cause notice by ex ercising his right under Article 226 of the Constitution of India by filing a writ peti tion in this Court.

(3.) TO appreciate the various conten tions advanced a look at the relevant provisions appears necessary. Sections 2 and 3 of the Act are therefore quoted below: "section 2. Definitions.-In this Act, un less the context otherwise requires: (a) "district Magistrate" includes an Addi tional District Magistrate specially empowered by the State Government in that behalf; (b) "goonda" means a person who- (i) either by himself or as a member or leader of a gang, habitually commits or attempts to commit, or abets the commission of an of fence punishable under Section 153 or Section 153-B or Section 294 of the Indian Penal Code or Chapter XV or Chapter XVI, Chapter XVII or Chapter XXII of the said Code, or (ii) has been convicted for an offence punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or (iii) has been convicted not less than thrice for an offence punishable under the U. P. Excise Act, 1910 or the Public Gambling Act, 1867 or Section 25, Section 27 or Section 29 of the Arms Act, 1959; or (iv) is generally reputed to be a person who is desperate and dangerous to the com munity; or (v) has been habitually passing indecent remarks or teasing women or girls; or (vi) is a tout; Explanation.-TOur means a person who- (a) accepts or obtains, or agrees to accept or attempts to obtain from any person for him self or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or (sic) illegal means any public servant or member of Government, Parliament or of State Legislature, to do or for bear to do any thing or to show favour or dis favour to any person or to render or attempt to render any service or disservice to any person, with the Central or State Government, Parliament or State Legislature, any local authority, Corporation, Government Company or public servant; or (b) procures, in consideration of any remuneration moving from any legal prac titioner interested in any legal business, or proposes to any legal practitioner or to any per son interested in legal business to procure, in consideration of any remuneration moving from either of them the employment of legal practitioner in such business; or (c) for the purposes mentioned in Ex planation (a) or (b), frequents the precincts of civil, criminal or revenue courts, revenue or other offices, residential colonies or residences or vicinity of the aforesaid or railway or bus stations, landing stages, lodging places or other places of public resort; or (vii) is a house-grabber. Explanation.-'house-grabber' means a person who takes or attempts to take or aids or abets in taking unauthorised possession or having lawfully entered unlawfully remains in possession, of a building including land, garden, garages or out-houses appurtenant to a build ing. " Section 3. Experiment, etc. of Goondas.- (1) Where it appears to the District Magistrate; (a) that any person is a goonda; and (b) (i) that his movements or acts in the district or any part thereof are causing, or are calculated to cause alarm, danger or harm to persons or property; or (ii) that there are reasonable grounds for believing that he is engaged or about to engage, in the district or any part thereof in the commis sion of an offence referred to in sub-clauses (i) to (iii) of clause (b) of Section 2, or in the abetment of any such offence; and (c) That witnesses not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or property. The District Magistrate shall by notice in writing, inform him of the general nature of the materials allegations against him in respect of clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an ex planation regarding them. (2) The person against whom an order under this Section is proposes to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires and also of examining any other witness that he may wish to produce in support of his explanation, unless for reasons to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay. (3) Thereupon the District Magistrate on being satisfied that the conditions specified in clauses (a), (b) and (c) of sub-section (1) exist may by order in writing- (a) direct him to remove himself outside the area within the limits of his local jurisdiction or such area and any district or districts or any part thereof, contiguous thereto, by such route, if any and within such time as may be specified in the order and to desist from entering the said area and such continuous district or districts or part thereof, as the case may be, from which he was directed to remove himself until the expiry of such period not exceeding six months as may be specified in the said order. (b) (i) require such persons to notify his movements, or to report himself, or to do both, in such manner at such time and to such authority or person as may be specified in the order; (ii) prohibit or restrict possession or use by him or any such article as may be specified in the order; (iii) direct him otherwise to conduct him self in such manner as may be specified in the order; until the expiration of such period, not exceeding six months as may be specified in the order. "