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Section 3 in The Uttar Pradesh Appropriation Act, 1996
The Uttar Pradesh Appropriation Act, 1996
Article 226 in The Constitution Of India 1949
The Indian Penal Code
the Central Excise Act, 1944

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Allahabad High Court
Brahma Prakash Singh vs State Of U.P.,Thru. Prin. Secy., ... on 29 July, 2010

-1-

A.F.R.

Reserved

W.P No. 5900 (MB) of 2010

Brahma Prakash Singh ..............Petitioner

Versus

State of U.P. & Others....... .... Opposite Party

Hon'ble Raj Mani Chauhan, J.

Hon'ble Virendra Kumar DIXIT, J.

(Delivered by Hon'ble V.K. DIXIT, J.)

1. The petitioner has filed this Writ Petition under

Article 226 of the Constitution of India for issuing a writ of

certiorari to quash the impugned notice dated 10.5.2010

issued by the Opposite Party No. 3, the Additional District

Magistrate (Administration), District Raibareli to the

petitioner under Section 3 of the Uttar Pradesh Control of

Goondas Act, 1970 (hereinafter referred to as the Act).

2. We have heard the arguments at length advanced by

Sri Lakshaman Singh, learned counsel for the petitioner and

Sri Umesh Verma, learned Additional Government Advocate

on behalf of the State as well as perused the relevant

documents on record.

3. The submission of the learned counsel for the

petitioner is that the Opposite Party No. 3, the Additional -2-

District Magistrate (Administration), District Raibareli

exercising the power of District Magistrate, Raibareli issued

a notice to the petitioner under Section 3 of the Act to

appear and show cause as to why an order under Section 3

of the Act be not passed against him. The learned counsel

submits that the Section 3 of the Act lays down the

provision for externment of goondas. Section 3 (1) (a) (b) (i)

(ii) and (c) of the Act provide for issuing a show cause notice

by the District Magistrate to the person who is to be

declared as goonda and order of externment is to be passed

against him containing facts mentioned therein. The notice

further provides that it will contain the general nature of

material allegations against the person who is proposed to be

declared as goonda and against whom externment order is to

be passed. In this case the impugned notice issued by the

District Magistrate although contains a list of as many as 11

(eleven) cases but the general nature of material allegations

are lacking therein which is essentially required to be

mentioned therein. The learned counsel submits that only list

of cases mentioned in the notice will not be sufficient to

amount that the general nature of material allegations have

been mentioned in the notice. The learned counsel further -3-

submits that the Additional District Magistrate was further

required to record his satisfaction in the impugned notice

that he was satisfied on the facts as required under Section

3 (1) (a) (b) (i) (ii) and (c) of the Act that the petitioner was

goonda. But he has not recorded his satisfaction in the

impugned notice, therefore, the impugned notice issued by

the Additional District Magistrate (Administration), District

Raibareli is illegal and liable to be quahsed. The learned

counsel for the petitioner in support of his argument has

placed reliance on cases Ramji Pandey Vs. State of U.P. &

Others reported in 1981 (7) ALR 401 (ALLD) (FB) decided

by Full Bench (consisting of three Hon'ble Judges) of

Allahabad High Court, Bhim Singh Tyagi Vs. State of U.P.

& Others reported in 1999 U.P.Cr.R 417 (All) (FB)

decided by Full Bench (consisting of five Hon'ble Judges) of

Allahabad High Court and Rajkumar Dubey Vs. State of

U.P. & Others reported in 2009 (65) ACC 46 decided by

Division Bench of Allahabad High Court.

4. The learned Additional Government Advocate opposed

the petition and submitted that the petitioner by the

impugned notice has been directed to submit his explanation

as to why an order of externment under Section 3 (3) of the -4-

Act be not passed against him. He, therefore, has got

opportunity to challenge the notice in his explanation. The

Additional District Magistrate will decide the point as to

whether the notice issued by him to the petitioner is illegal.

He further submitted that the petition against the impugned

notice is not maintainable. The impugned notice is not

defective as it contains the general nature of material

allegations against the petitioner as required by Section 3 (1)

(a) (b) (i) (ii) and (c) of the Act. The petition is, prima facie,

devoid of any merit and is liable to be dismissed.

5. In order to examine the contentions raised by the

learned counsel for the parties, it will be convenient to have

a short note on the Act and to briefly refer to relevant

provisions of the Act:

The Uttar Pradesh Control of Goondas Act, 1970 (U.P.

Act No. 8 of 1971) amended by U.P. Act No. 1 of 1985 was

passed by the Uttar Pradesh Legislature to make special

provisions for the control and suppression of Goondas with a

view to the maintenance of Public order.

Sub-section (b) of Section 2 of the Act defines Goonda

and means a person who is to be declared as goonda. The said

provision reads:

-5-

2 (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 a offence punishable under Section 153 or Section 153-B or Section 294 of the Indian Penal Code or Chapter XV, 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

community; or

(v) has been habitually passing indecent remarks or teasing women or girls; or

(vi) is a tout; or

(vii) is a house-grabber.

Section 3 of the Act enacts the provision of

Externment, etc of Goondas. The said provision reads:

3. Externment, 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 -6-

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 commission 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 material allegations against him in respect of clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them.

(2) The person against whom an order under this section is proposed 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 witnesses 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 or the area and such contiguous district or districts or part thereof, as the case may be, -7-

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 person 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 of any such article as may be specified in the order,

(iii) direct him otherwise to conduct

himself in such manner as may be specified in the order,

until the expiry of such period, not exceeding six months as may be specified in the order.

The above notice is in the form prescribed under Rule 4

of the Uttar Pradesh Control of Goondas Rules, 1970 reads:

FORM I

Notice under Section 3 of the Uttar Pradesh Control of Goondas Act, 1970

[See Rule 4]

Whereas it appears to me on basis of

information laid before me that-

(a) Sri ................... son of Sri ........................ ordinarily residing in ................................. is a "goonda", that is to say, he either himself *or *as a member or leader of a gang, habitually commits, *or *attempts to commit, *or *abets the commission of, offence punishable under *Chapter XVI, *Chapter XVII or * Chapter XXII of the Indian Penal Code has been convicted under the Suppression of Immoral Traffic in Women and Girls Act, 1956/*has been convicted not less than trice under the U.P. Excise Act, 1910, is generally reputed to be a person who is desperate and dangerous to the community; and that

(b) his movements or acts in ............... are causing -8-

or are calculated to cause alarm, danger or harm to persons or property/*there are reasonable grounds for believing that he is engaged or about to engage in the district or any part thereof, in the commission of any offence punishable under *Chapter XVI/*Chapter XVII/*or Chapter XXII of the Indian Penal Code, *or under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or under the U.P. Excise Act, 1910, * or in the abetment of any such offence; and that

(c) witnesses are 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;

And whereas the material allegations against him in respect of the aforesaid clauses (a)/(b)/(c) are of the following general nature:

1.......................................................

2......................................................

3...................................................... The said Sri ...................... is hereby called upon to appear before me on (date) at (time) in my court-room and if he so desires, to tender an explanation in writing regarding the said material allegations showing cause why an order under sub- section (3) of Section 3 of the Uttar Pradesh Control of Goondas Act, 1970, may not be made against him, also intimating me whether he desires to examine himself or any other witness (if so, their names and addresses) in support of his explanation.

The said Sri ................... is hereby informed that if he fails to appear as aforesaid or if no explanation or intimation is received within the time specified, it will be presumed that Sri ........................ has no desire to tender any explanation/examine any witness in regard to the said allegations and I will proceed to pass the proposed order.

Seal of Court

District Magistrate/Addl.

District Magistrate

*Delete whichever ingredient is no applicable. -9-

The definition of term 'District Magistrate' as given in

Section 2 (a) of the Act includes an Additional District

Magistrate specifically empowered by the State Government

in that behalf.

Section 4 of the Act confers power on the District

Magistrate to permit any person on whom externment order

may have been passed to enter or return for a temporary

period. Section 5 confers powers on the District Magistrate

to extend the period specified in the order passed under

Section 3 (3) of the Act, but the legislature has provided

that in no case the period shall extend two years in the

aggregate. Contravention of an order passed under Section 3,

4 and 5 is punishable under Section 10.

Section 6 of the Act provides appeal against the orders

of the District Magistrate passed under Section 3, 4 and 5

before the Commissioner. The said provision reads:

6. Appeal - (1) Any person aggrieved by an order made under Section 3, Section 4 or Section 5 may appeal to the Commissioner within fifteen days from the date of such order.

(2) The appellant or his counsel shall not be entitled to inspect or to be informed of any record which was not disclosed to him at the inquiry, if any, held under Section 3.

(3) The Commissioner may either confirm - 10 -

the order, with or without modification, or set it aside, and may, pending disposal of the appeal, stay the operation of the order subject to such terms, if any, as he thinks fit.

Section 9 of the Act provides Recession of order which

reads as under:

9. Recession of order - The District

Magistrate or the Commissioner may at any time rescind an order made under Section 3, whether or not such order was confirmed on appeal under Section 6.

Section 11 (1) confers powers for forcible removal of

externed goonda, re-entry, etc. The provision reads as under:

11. Forcible removal of externed Goonda re-entering, etc., in contravention of order- (1) Where, after an order is made against a person under Section 3, Section 4, Section 5 or Section 6 such person-

(a) has failed to remove himself from the district or part as directed by the order; or

(b) has re-entered the area, from which he was ordered to remove himself during the period of operation of that order,

the District Magistrate may cause him to be arrested and removed in police custody to such place outside the area specified in the said order as he may direct.

6. In the case of Ramji Pandey Vs. State of U.P. & Others

(supra), the Hon'ble Allahabad High Court has observed in

Para 5 of the judgment which is being extracted below:

".............. The Act is of extraordinary - 11 -

character which seeks to meet those

exceptional cases where action against bad characters and undesirable elements of the society is not possible in accordance with ordinary law as in many cases witnesses for fear of violence to their person or property are not willing to depose publicly against bad characters whose presence in certain areas constitute a menace to the safety of the public residing therein. The legislature has made a departure from the ordinary

procedure followed in Courts of law by providing a summary procedure of

externment of a goonda in accordance with the procedure laid down under the Act. It does not contemplate any judicial trial and the proceedings before the District

Magistrate or the Commissioner are not governed by the Criminal Procedure Code or the Indian Evidence Act except as

permitted by the Act. The provisions of the Act no doubt, make serious inroad on the personal liberty of a citizen but such restraints have to be suffered in the larger interest of the Society......".

7. In view of the submissions of Sri Lakshaman Singh,

learned counsel for the petitioner and Sri Umesh Verma,

learned Additional Government Advocate, the following two

questions cropped up for consideration:

(i) Whether the Writ Petition for quashing the impugned notice is maintainable?

(ii)Whether the impugned notice is, prima facie, illegal?

8. The aforesaid two questions are being considered

hereinafter:

- 12 -

(i) As regards to the maintainability of the present writ

petition, the learned A.G.A. argued that the writ

petition filed by the petitioner against the show cause

notice issued by the Additional District Magistrate

(Administration), Raibareli under Section 3 (1) of the

Act is not maintainable. The Additional District

Magistrate has allowed the petitioner an opportunity to

show cause as to why an order of externment under

Section 3 (3) of the Act be not passed against him. The

petitioner may, therefore, file his explanation before

him. He may challenge the legality of the impugned

notice too in his explanation which will be considered by

the Additional District Magistrate. The petitioner thus

has got an alternative remedy to challenge the

impugned notice before the Additional District

Magistrate. The writ petition under Article 226 of the

Constitution of India is, therefore, not maintainable.

The learned A.G.A. further submits that a writ petition

against the impugned notice will be maintainable only

when the authority issuing the notice has no power to

issue the same or any other similar ground which make

the notice, prima facie, illegal. In this case the - 13 -

impugned notice has been issued by the Additional

District Magistrate who is competent to issue the

same. The impugned notice prima facie is not defective,

therefore, it cannot be quashed. Sri Umesh Verma,

learned A.G.A. in support of his argument placed

reliance on the cases Gore Lal Vs. State of U.P. &

Others reported in 2002 (2) ACrR 2032 decided by

the Division Bench of Allahabad High Court, Union of

India & Anr. Vs. Kunisetty Satyanarayana reported

in AIR 2007 SUPREME COURT 906 decided by the

Hon'ble Apex Court and Kabir Chawla Vs. State of

U.P. & Others reported in 1994 Supreme Court

Cases (Cri) 577 decided by the Hon'ble Apex Court.

On the other hand learned counsel for the petitioner

submits that a notice issued by the District Magistrate

to a person under Section 3 (1) of the Act can not

ordinarily be challenged in the writ jurisdiction under

Article 226 of the Constitution of India but where the

notice is, prima facie, defective as it does not contain

the facts and general nature of material allegations as

required by Section 3 (1) (a) (b) (i) (ii) and (c) of the

Act, the same can be challenged under Article 226 of - 14 -

the Constitution of India. If the notice issued by the

District Magistrate under Section 3 (1) of the Act is

defective, no proceeding can be drawn under the Act on

the basis of such notice and the entire exercise on the

basis of such defective notice will be illegal. The

learned counsel submits that when any statutes

requires any particular act to be done in a particular

manner that act has to be done in the manner provided

by the statute. If the particular act has not been done

so in accordance with the provision under the statute,

the act will be illegal. In this case the impugned notice

issued by the Additional District Magistrate does not

contain the facts and the general nature of the

material allegations which are required by Section 3 (1)

(a) (b) (i) (ii) and (c) of the Act. Therefore, the

impugned notice is defective in the eye of law and no

proceeding cant be drawn against the petitioner on the

basis of such defective notice. The impugned notice

can, therefore, be challenged by the aggrieved person

under Article 226 of the Constitution of India. The

Writ Petition is, therefore, maintainable.

9. In the case of Gore Lal Vs. State of U.P. (supra) - 15 -

cited by the learned A.G.A., the Division Bench of Allahabad

High Court has held that as a general principle a writ petition

under Article 226 of the Constitution of India will not be

entertained against the notice issued by the District

Magistrate under Section 3 of the Act. The relevant

observation of the court finds place in Para 6 of the

judgment which is being extracted below:

"....... 6. We further lay down as a

general principle that a writ petition will not be ordinarily entertained by this Court against a show cause notice under Section 3 of the U.P. Control of Goondas Act, as the petitioner has an alternative remedy of showing cause before the authority

concerned. It is well-settled that writ jurisdiction is discretionary jurisdiction, and this Court will not ordinarily exercise its jurisdiction against a show cause notice. It is possible that after considering the reply of the petitioner the authority may be

satisfied with his explanation........".

10. In the case of Union of India & Anr. Vs. Kunisetty

Satyanarayana(supra) cited by the learned A.G.A., the

Hon'ble Apex Court has held that a charge-sheet or show

cause notice issued to a delinquent employee cannot be

challenged under Article 226 of the Constitution of India.

The relevant observation of the Hon'ble Apex Court finds

place in Para 13 & 14 of the judgment which are being

extracted below:

- 16 -

".........13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show- cause notice vide Executive Engineer, Bihar State Housing board Vs. Ramdesh Kumar

Singh and others JT 1995 (8) SC 331,

Special Director and another Vs. Mohd. Ghulam Ghouse and another AIR 2004 SC

1467, Ulagappa and others Vs. Divisional Commissioner, Mysore and others 2001 (10) SCC 639, State of U.P. Vs. Brahm Datt

Sharma and another AIR 1987 SC 943 etc.

14. The reason why ordinarily a writ

petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no

jurisdiction to do so. It is quite possible that after considering the reply to the show- cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise

adversely affecting a party is passed, that the said party can be said to have any grievance.........".

11. In the case of Kabir Chawla Vs. State of U.P. &

Others (supra) cited by the learned A.G.A., the Hon'ble

Apex Court has held that the proceeding initiated by the - 17 -

District Magistrate against a person under Section 3 of the

Act will not be quashed unless it is established by the

petitioner that the District Magistrate was actuated by the

malifides while initiating the proceeding under the Act

against him. The relevant observation of the Hon'ble Apex

Court is being extracted below:

".... There is no ground for quashing the said proceedings at this stage. The matter is under consideration before the District Magistrate. It is open to the petitioner to satisfy the District Magistrate that no ground has been made out for passing the order against him. In the writ petition the petitioner has not made out a case that in issuing the show-cause notice the District Magistrate was actuated by malafides. There is, therefore, no reason to assume that the District Magistrate would not give a fair consideration to the matter.....".

12. In the case of Ramji Pandey Vs. State of U.P. &

Others (supra) cited by the learned counsel for the

petitioner, the petitioner had challenged the validity of the

notice issued by the District Magistrate under Section 3 of

the Act in the Writ Petition under Article 226 of the

Constitution of India on the ground that the notice did not

contain the general nature of material allegations as required

by Section 3 (1) (a) (b) (i) (ii) and (c) of the Act. The Court

after going through the impugned notice as well as so many

case laws on the point held that the impugned notice issued - 18 -

by the District Magistrate under Section 3 sub Section (1)

of the Act was defective as it did not contain the general

nature of material allegations as required by Section 3 (1) (a)

(b) (i) (ii) and (c) of the Act, as such it will be a defective

notice and was liable to be quashed. The writ petition was

accordingly allowed and the impugned notice issued by the

District Magistrate was quashed. The Hon'ble court held

that where the notice issued by the District Magistrate

under Section 3 of the Act does not contain the general

nature of material allegations as required under Section 3 (1)

(a) (b) (i) (ii) and (c) of the Act, it will be a defective notice.

The further proceeding will be illegal. Therefore, a defective

or illegal notice issued by the District Magistrate under

Section 3 of the Act can be challenged under the Article

226 of the Constitution of India. The above view of the Full

Bench was approved by subsequent Full Bench of the Court

(consisting of five Hon'ble Judges) in the case Bhim Singh

Tyagi Vs. State of U.P. & Others (supra). The relevant

observation of the Court finds place in para 24 of the

judgment which is being extracted below:

"..... In view of the aforesaid discussion, the combined answer to the aforesaid three questions is that the decision in Ramji Pandey is good law, a show cause notice which fails to indicate general - 19 -

nature of material allegations may be challenged and quashed on that ground under Article 226 of the Constitution of India with liberty to the respondents always to issue fresh notice in accordance with law.......".

The court relying on the principles of law laid down by

the Hon'ble Apex Court in Whirlpool Corporation (AIR 1999

SC page 22) further held that alternative remedy available

under any Act does not affect the jurisdiction of the High

Court under Article 226 of the Constitution of India.

12. As regards principles of law laid down by the Hon'ble

Apex Court in case of Union of India & Anr. Vs. Kunisetty

Satyanarayana (supra), the Hon'ble Apex Court has held

that a writ petition under Article 226 of the Constitution of

India will not ordinarily lie against the charge-sheet or show

cause notice as the impugned show cause notice or charge-

sheet does not infringe the right of delinquent employee. It

is only when final order imposing some punishment or

otherwise adversely affecting the right of a party is passed

then the said party can be said to have any grievance. The

Hon'ble Court held that in some very rare and exceptional

cases, the High Court can quash the charge-sheet or show

cause notice if the same is found to be wholly without

jurisdiction or for some other reason which makes the same - 20 -

wholly illegal. But the case before the Hon'ble Apex Court

relates to a disciplinary proceeding initiated by the

Appointing Authority against a delinquent employee. The

charge or the show cause notice issued to a delinquent

employee cannot be equated with the show cause notice

issued under Section 3 (1) of the Act which requires certain

facts to be mentioned therein. An inquiry report on the basis

of defective charge-sheet against the delinquent employee is

not vitiated unless the employee was prejudiced by such

defective charge-sheet but in the case of defective show

cause notice issued by the District Magistrate under Section

3 (1) of the Act, the situation will be otherwise. Section 3 (1)

of the Act requires certain facts to be mentioned in the

notice, if the notice does not contain such facts it will be

illegal notice which cannot form the basis for initiating a

proceeding under the Act. Moreover, the Hon'ble Court has

laid down that a notice can be challenged if it was issued by

the authority not competent to issue the same or the notice

is illegal for some or other reasons.

14. As regards the law laid down by the Hon'ble Apex

Court in the case of State of U.P. Vs. Chandra Shekhar

Shukla reported in 2001 Supreme Court Cases (Cri) 401, - 21 -

the Hon'ble court quashed the order of the High Court

whereby the High Court had stayed the proceeding against

the petitioner pending under the Act who had challenged the

validity of the notice issued by the District Magistrate under

Section 3 (1) of the Act. The Hon'ble Apex Court found that

the High Court without applying its mind had mechanically

passed the interim order of stay which was illegal. The

Hon'ble Apex Court while setting aside the order of the High

Court did not specifically lay down any principle or law that

the notice issued by the District Magistrate under Section 3

(1) of the Act cannot be challenged in a Writ Petition under

Article 226 of the Constitution of India.

15. As regards the case of Kabir Chawla Vs. State of

U.P. & Others (supra), in this case a proceeding under

Section 3 of the Act was initiated by the District Magistrate

against the petitioner. The petitioner on receiving the notice

issued by the District Magistrate under Section 3 (1) of the

Act had submitted his reply which was pending before him

for disposal. In the appeal, the Hon'ble Apex Court held that

the matter was pending before the District Magistrate and

the appellant could not show that the District Magistrate

while issuing the show cause notice against him had acted - 22 -

malafidely. Therefore, the Hon'ble court declined to quash

the notice issued by the District Magistrate under Section 3

(1) of the Act. The Hon'ble Court had dismissed the appeal in

view of the facts of that case.

16. The Division Bench of the Allahabad High Court in the

case of Harsh Narain alias Harshu Vs. District

Magistrate, Allahabad and another reported in [1972 (Vol.

LXX) ALJ Page 769 Para 9] observed that:

".........the defect of not setting out the general nature of the material allegations in the notices is a fatal defect as it results in non-compliance with the provisions of

Section 3 (1). The notices cannot be deemed to be notices under Section 3 (1). Section 3 (1) enjoins upon the District Magistrate to inform the goonda of the general nature of the material allegations against him in respect of clauses (a), (b) and (c) and further enjoins upon to give the goonda a reasonable opportunity of furnishing his explanation regarding them. If the goonda is not informed of the general nature of the material allegations regarding clauses (a), (b) and (c), he can furnish no explanation in respect of them and would be deprived of the reasonable opportunity to which he is entitled under Section 3 (1). Not only this, in the absence of a proper explanation, he would also be deprived of the reasonable opportunity under Sub-section (2) of

producing his evidence in support of his explanation. When he is deprived of the reasonable opportunity at both these

stages, the action taken must be held to be illegal. Where a statue permits the

executive to pass orders imposing - 23 -

restrictions on the fundamental rights of the citizens guaranteed by Article 19 of the Constitution, then such orders can be passed only after strictly complying with the provisions of the statue. If orders are passed without strictly complying with the provisions of the statue, they must be struck down. For these reasons, we think that the notices issued to the petitioners were illegal, not having been issued in accordance with the provisions of Section 3 (1) and the subsequent action taken on the basis of these notices must fall with the notices. The orders of externment passed by the District Magistrate and the appellate orders of the Commissioner confirming them deserve to be quashed.......".

17. In the case of Jainendera @ Chhotu Singh Vs. State

of U.P. & Others along with 37 bunch of cases reported in

[2007 (1) JIC 668 (All)], the Division Bench of the

Allahabad High Court considered the point of maintainability

of a Writ Petition under Article 226 of the Constitution of

India against the notice issued by the District Magistrate

under Section 3 (1) of the Act as well as when such a notice

can be challenged under Article 226 of the Constitution of

India. The Division Bench considered the above point in detail

and agreed with the law laid by the two Full Benches of the

High Court in Ramji Pandey Vs. State of U.P. & Others

(supra) as well as Bhim Singh Tyagi Vs. State of U.P. &

Others (supra) and held that a Writ Petition filed by a - 24 -

person under Article 226 of the Constitution of India against

a notice issued by the District Magistrate under Section 3

(1) of the Act initiating proceeding against him will be

maintainable. The Hon'ble Court accordingly held that Writ

Petitions filed by the petitioner were, therefore,

maintainable.

18. In the present case the petitioner has challenged the

legality of the impugned notice issued by the District

Magistrate on the ground that it does not contain the

general nature of material allegations as required by Section

3 (1) (a) (b) (i) (ii) & (c) of the Act. A proceeding under the

Act cannot be drawn on the basis of such defective notice,

therefore, the notice issued by the District Magistrate to

the petitioner can be challenged by him under the Article

226 of the Constitution of India.

19. After going through the case laws as referred above,

we are of the considered opinion that a writ challenging the

validity of notice issued by the District Magistrate under

Section 3 (1) of the Act is maintainable as per law discussed

above.

20. (ii) As regards the legality of the impugned notice,

the submission of learned counsel for the petitioner is that - 25 -

the impugned notice does not contain the general nature of

material allegations as required by Section 3 (1) (a) (b) (i) (ii)

& (c) of the Act. Moreover, the Additional District

Magistrate in the impugned notice has not accorded his

satisfaction that on the information received by him, he was

satisfied that the petitioner was goonda. Therefore, the

impugned notice is defective and illegal. On the basis of such

notice no proceeding under the Goonda Act can be initiated

against the petitioner. We agree with the submission of the

learned counsel for the petitioner only to this extent that

the notice issued by the District Magistrate under the Act

must contain the general nature of material allegations. But

we do not agree with the rest submissions of the learned

counsel for the petitioner.

21. The Division Bench of Allahabad High Court in bunch

cases Jainendera @ Chhotu Singh Vs. State of U.P. &

Others (supra) considered on the point of the general

nature of material allegations as required by Sections 3 (1)

of the Act. The Division Bench has observed that the word

general nature of material allegations is not defined under

the Act. The dictionary meaning of the material allegations is

"essential or significance". The Division Bench was, - 26 -

therefore, of the view that if the notice issued by the

District Magistrate under Section 3 (1) of the Act contained

the facts regarding clause (a) (b) & (c) of sub Section (1) of

the Section 3 of the Act, the same will be sufficient for the

purpose of indicating the material allegations. The relevant

observation of the Division Bench finds place in Para 16 of

the judgment which is being extracted below:

".... 16. ...... But if the facts of the question of general nature of material allegations are indicated or reflected in the notice, such case or cases should not be interfered with by the writ Court. It is an admitted position what would be the general nature of material allegations, is not defined under the Act. Dictionarically, it is essential of significance. Therefore, if an indication as regards clause (a), (b) and (c) of sub- Section (1) of Section 3 of the Act is given, the same is sufficient for the purpose of denoting material allegations. Whenever a person is called without any purpose, then it can be said that there is no material for calling. But when someone is called with some material whatever vague it is, it cannot be said that there is no material. It is a well settled by now that when there is no material, the Court will interfere, but when there is some material, the Court will not interfere. In case of some material, only the authority, who issued the notice calling upon a person to give reply for the purpose of meeting the point of some material, is able to adjudicate the issue, failing which one can invoke the alternative remedy or remedy under writ jurisdiction......".

22. In the case Pushpendra Kumar Goel Vs. State of

U.P. & Ors. reported in [2009 (2) JIC 909 (All)], the - 27 -

subsequent Division Bench of Allahabad High Court held that

where it has been mentioned in the show cause notice issued

to the petitioner under Section 3 (1) of the Act that the

general reputation of the petitioner was that he was

disparate and dangerous to the community and that he was

engaged in marpeet, giving threats and indulging in goondism.

These facts were sufficient and such notice could not be

challenged in petition under Article 226 of the Constitution

of India; rather it will be open to the petitioner to satisfy

the District Magistrate that there was no ground for passing

order or issuing show cause notice against him.

23. The Division Bench in the cases Jainendera @ Chhotu

Singh Vs. State of U.P. & Others (supra) and Pushpendra

Kumar Goel Vs. State of U.P. & Ors. (supra) has also

observed that the petitioner was already allowed by the

District Magistrate to file reply of the notice within a given

time schedule. The petitioner, therefore, had got sufficient

opportunity to show that the notice issued by the District

Magistrate was illegal. The District Magistrate, thereafter,

will decide as to whether the notice issued by him was illegal

& defective? The court also observed that if the District

Magistrate holds that the notice issued by him was legal, and - 28 -

the petitioners feel aggrieved by such finding, they may

prefer an appeal before the Commissioner under Section 6 of

the Act. The Division Bench in all the bunch cases found that

the notices issued by the District Magistrate, prima facie,

were not defective and held that the petitioners have got an

opportunity to challenge the legality of the notice before the

District Magistrate. They can challenge the legality of the

impugned notice there.

24. We do not find any reason to differ with the

proposition of law laid down by the Division Bench in the

above two cases i.e. Jainendera @ Chhotu Singh Vs. State

of U.P. & Others (supra) and Pushpendra Kumar Goel Vs.

State of U.P. & Ors. (supra).

25. Now, we come to the impugned notice issued by the

Additional District Magistrate (Administration), Raibareli to

the petitioner in this case. From a perusal of the impugned

notice, it appears that in clause (Aa) of the notice it has

been mentioned that on the basis of information that Brahma

Prakash Singh, aged about 28 years, S/o Sri Pratap Bahadur

Singh, R/o Village Alampur, Kasba and P.S. Lalganj, District

Raibareli is a man of goonda nature. He being the member of

gang leader of gang is habitual of committing offence - 29 -

covered under Chapter XVI, XVII and XXII of the Indian

Penal Code. His general reputation is that he is a man of

audacious and dangerous to the community. In para (Ba), it

has been mentioned that the petitioner within the entire

area of the district is used to commit the offence as defined

in Chapter XVI, XVII and XXII of the Indian Penal Code.

Thereafter, the notice contains a list of as many as 11

(eleven) criminal cases. In some cases the petitioner has

been shown charge-sheeted and in some of the cases final

reports are shown to have been submitted by the

Investigating Officer. In this way, we find that the impugned

notice contains so much of material allegations which are

sufficient to enable the petitioner to submit his reply against

the show cause notice issued to him.

26. The Additional District Magistrate has allowed to the

petitioner an opportunity to file his reply against the

impugned notice although the date mentioned in the notice to

file reply has expired even then he may be allowed time to

file reply before the Additional District Magistrate against

the notice wherein he can challenge the legality of the notice

issued by the Additional District Magistrate and the

Additional District Magistrate may be directed to pass a - 30 -

reasoned order on the reply furnished by the petitioner

against the notice.

27. In view of the discussions above, we find no force in

the Writ Petition which is liable to be dismissed.

28. The Writ Petition is, therefore, dismissed.

29. However, it is observed that the petitioner may file his

reply before the Additional District Magistrate

(Administration), Raibareli in which he can challenge the

legality of the impugned notice within a period of 30 days

from the date of this order. The Additional District

Magistrate (Administration), District Raibareli after

receiving the reply of the petitioner will pass a speaking and

reasoned order without being guided with any observation

made by this Court regarding the impugned notice and then

will proceed according to law.

Before parting with the case, we record our

appreciation to Sri Lakshaman Singh, learned counsel for the

petitioner and Sri Umesh Verma, learned Additional

Government Advocate in rendering full assistance to the

Court during the course of hearing.

Dated: July, 29th 2010

Santosh/-

W.P. No. 5900 (MB) of 2010