Saud Akhtar vs State Of U.P. And 3 Ors. on 7 March, 2018

[Cites 7, Cited by 1]

Allahabad High Court

Saud Akhtar vs State Of U.P. And 3 Ors. on 7 March, 2018

1. This petition for writ is preferred to examine correctness of the order dated 27.12.2017 passed by District Magistrate, Kanpur Nagar (respondent no. 2) in Case No. 4 of 2017 (State Versus Saud Akhtar).

2. By order impugned, learned District Magistrate while invoking powers under sub-Section (1) of Section 14 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as "Act, 1986") ordered for attachment of the movable and immovable properties of the petitioner. An administrator too has been appointed under the order impugned.

3. Under the order impugned, District Magistrate has given details of the movable and immovable properties of the petitioner which are said to be gained by gangster activities. The details given under the order impugned are as follows:-

"(i) Fortuner Vehicle No. UP-78-DM-0333

(ii) Mahindra Thar Vehicle No. UP-78-EJ-0033

(iii) House situated at Arazi No. 8 area 150 square meter situated at Village Wajidpur @ Jajmau, Kanpur Nagar.

(iv) Undivided share 43/60 i.e. 358.30 square meter of Arazi No. 868 Ka area 0.0200 hectare arazi no. 869 area 0.0100 hectare and arazi no. 908 Kha area 0.0200 hectare situated at Mauza Paibandi, Tahsil and District Kanpur Nagar.

(v) Arazi No. 258 area 0.5165 hectare situated at Mauja Vipausi, Tahsil and District Kanpur Nagar.

(vi) Arazi No. 60 Ka area 0.2900 hectare situated at Village Wajidpur @ Jajmau, Kanpur Nagar.

(vii) House No. 87/73A situated at Private Plot No. 68 (park), 69 and 70 forming part of premises no. 87/73 area 209.02 square meter, situated at Jajmau, Kanpur Nagar.

(viii) House No. 245/236A Dargah Sarif, Jajmau, Kanpur Nagar, area 60.240 square meter."

4. Suffice it to mention that order impugned dated 27.12.2017 is passed by the District Magistrate by acting upon the report dated 18.12.2017 given by the Station House Officer, Police Station Cantt., Kanpur Nagar.

5. After issuing the order of attachment as per provisions of sub-Section (1) of Section 14 of Act, 1986, a notice as per Section 15 of the Act, 1986 is also given to the petitioner to explain the circumstances and sources through and by which properties aforesaid were acquired by him.

6. The submission of learned counsel appearing on behalf of the petitioner is that the District Magistrate without having any foundation presumed that the petitioner and his family members acquired property concerned by committing crime or by involvement in gangsters activities. It is asserted that the Senior Superintendent of Police, Kanpur Nagar and the District Magistrate, Kanpur Nagar infuriated against the petitioner for certain extraneous consideration and due to that the order impugned has been passed attaching, seizing and appointing administrator in relation to the property validly owned. Certain details are also given in the petition about sources through which the property has been acquired. It is also submitted by learned counsel that the property attached under the order impugned also includes the property that is acquired by the petitioner through his ancestors.

7. While meeting the argument advanced, the submission of learned counsel appearing on behalf of State of Uttar Pradesh is that the petitioner has been called upon to explain the circumstances and sources through which the property in question has been acquired. The petitioner can very well explain the sources to the District Magistrate and get the property released. It is also brought to our notice that Section 15 of the Act, 1986 relates to release of such property and according to that where any property is attached under Section 14, the claimant thereof may within three months from the date of knowledge of such attachment make a representation to the District Magistrate showing the circumstances and the sources by which such property was acquired by him. The District Magistrate on being satisfied with the genuineness of the claim being made is required to release property from attachment forthwith. It is held that the petitioner before approaching this Court has not availed the remedy under Section 15 of the Act, 1986.

8. Sri Anoop Trivedi, learned counsel appearing on behalf of the petitioner in response to the preliminary objection raised on behalf of the respondents states that the doctrine to approach this Court under Article 226 of the Constitution of India after exhausting all other remedies available is not a rule of law but a policy of convenience adopted by writ Courts and deviation from that is permissible in several circumstances including in the eventuality of an action shockingly arbitrary. In the case in hand, as per learned counsel, the properties attached are owned by the petitioner through valid means and, therefore, the attachment of the same with appointment of administrator is highly arbitrary and that is serious injury to the fundamental rights of the petitioner protected under Article 14 of the Constitution of India. Learned counsel asserts that if the Court is satisfied on basis of the material available that property in question by no stretch of imagination could have been termed and treated as assets acquired through criminal activities then the writ petition should not be thrown on the ground of availability of alternative remedy. It is emphasized that the details given in the petition for writ in relation to the sources through which the property attached under the order impugned was acquired are sufficient to arrive at the conclusion about genuine means.

9. Heard learned counsels for the parties and considered the arguments advanced.

10. It is not in dispute that as per Section 15 of Act, 1986, the petitioner may claim for release of property attached and the District Magistrate is under an obligation to release the same forthwith on being satisfied about the genuineness of the claim made. The petitioner instead of making any claim as per sub-Section (1) of Section 15 of Act, 1986 has approached this Court with assertion that attachment of property is shockingly arbitrary being acquired through established bonafide means, as such, the violation of Article 14 of the Constitution of India is apparent.

11. It is asserted that ancestral property of the petitioner by no stretch of imagination could have been termed and treated as property earned by the means sufficient to invoke the powers under sub-Section (1) of Section 14 of the Act, 1986. As already stated, it is also urged that the doctrine of availing remedy under Article 226 of the Constitution of India only after exhausting all other available remedies is not a rule of law but a policy convenience, hence the deviation in the instant matter is permissible.

12. We are in agreement with learned counsel appearing on behalf of the petitioner that the doctrine of exhausting all other efficacious alternative remedies before approaching the High Court under Article 226 of the Constitution of India is not a rule of law but a policy adopted by writ courts and deviation therefrom is permissible if the action impugned causes injury to fundamental rights of a person or citizen as the case may be, if the action lacks jurisdiction, if the action is in violation of the principles of natural justice and if that is shockingly arbitrary. However, in our opinion, such eventualities do not necessarily tide a writ court for deviation from the settled principle. It only permits the court to exercise its discretion to erase the patent illegality even on availability of efficacious remedy.

13. On enforcement of the Constitution on January 26, 1950, the citizens of our country received a strong shield of fundamental and constitutional rights - the rights personal as well as collective. Part- III of the Constitution, that covers the fundamental rights, ensures right to equality, right to freedom, right against exportation, right to freedom of religion and cultural and educational rights. Some of the rights given are attached to each and every "person" irrespective of their citizenship. The other parts of the Constitution confers several constitutional rights to the citizens of India. All these rights would have been of no meaning, if adequate safeguard would have not been given to enforce and protect such rights. Under Article 32 of the Constitution of India, remedy to ensure and protect fundamental rights is given as a fundamental right, but a very broad discretion is given to High Courts under Article 226 of the Constitution of India to issue prerogative writs, orders and directions within their territorial jurisdiction to ensure enforcement, extension and protection of the fundamental, constitutional and other legal rights of the subjects. The remedy given under Article 226 being discretionary is subject to several checks. The checks mostly are self imposed and as a rule of policy with a view that extraordinary remedy should always be exercised in extraordinary circumstances only. The remedy given must not be treated at par or alike other statutory remedies. A prominent self-imposed restriction in exercise the discretion given under Article 226 of the Constitution is the principle of exhausting all other statutory remedies before approaching writ court. It is a rule of convenience and discretion and does not oust the jurisdiction of a writ court, but indicates a caution in exercising extraordinary constitutional authority. The deviation from this principle is permissible if the relief is sought with well founded allegation of violation of fundamental rights, if the right has been or being threatened to be infringed by a law which itself is ultra-vires, if there is a complete lack of jurisdiction in the officer or the authority issuing impugned order or action, if there is flagrant violation of principles of natural justice, if the prevention of public injury and vindication of public justice requires the extraordinary recourse and if the court is satisfied that the remedy available is not efficacious enough to protect the injury caused or may be caused. This principle applies with more vigour, if a party is seeking a writ in the nature of certiorari to get an order passed by judicial or quasi judicial authority set aside.

14. Hon'ble Supreme Court while dealing with this aspect of the doctrine of exhausting all other remedies before approaching writ court in the case of State of U.P. v. Mohammad Nooh, reported in AIR 1958 SC 86, held as under:-

"11. On the authorities referred to above it appears to us that there may conceivably be cases-and the instant case is in point-where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it."

15. The law laid down by Hon'ble the Apex Court in State of U.P. v. Mohammad Nooh (supra) still holds the field and in view of the law laid down a writ in the nature of certiorari can be issued even if a remedy of appeal/revision is available on arriving at a conclusion that an inferior court or Tribunal of first instance has committed an error so patent that may not be cured or obliterated by adopting the other statutory remedy. The doctrine of availability of alternative remedy may also be ignored, if the inferior court or Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings of a writ in the manner that that is contrary to the rules of natural justice.

16. The petitioner herein seeks a deviation from the doctrine of exhausting all other remedies before approaching writ court by giving details of the sources through which the property in question has been earned.

17. As already stated, the submission of learned counsel appearing on behalf of the petitioner is that the properties attached are genuinely earned properties and, as such, there is no foundation to treat the same as properties sufficient to invoke powers under sub-Section (1) of Section 14 of Act, 1986. Learned counsel has also given details about the dates on which such properties were acquired and the consideration to acquire such properties.

18. Learned counsel for the petitioner though has submitted that the attachment impugned is arbitrary but, on asking, he fairly accepted that the same is not wholly without jurisdiction or is not supported by the adequate strength of law. On going through the details prescribed, we are of considered opinion that merely disclosure of the dates or reference of the consideration is not sufficient to establish bonafides. Several other details are required to be examined to assess the nature and mode of the acquisition of such properties. This can be done only by adducing adequate evidence while making claim before the District Magistrate. This Court under Article 226 of the Constitution of India is not adequately equipped to undertake such factual exercise. The arbitrariness alleged is required to be assessed by the District Magistrate while examining the claim made by the petitioner and, without having such assessment, it cannot be said that the order impugned is shockingly arbitrary.

19. In view of it, we are not inclined to entertain this petition for writ to examine merits of the claim made. The petitioner to establish his claim is required to avail remedy under Section 15 of the Act, 1986. Accordingly, the writ petition is dismissed.

20. The petitioner is at liberty to make a claim before the District Magistrate concerned in accordance with the law for release of the properties attached.

21. No order so as to costs.

 
Order Date :- 7.3.2018
 
Shubham
 

 

 
(Rajiv Lochan Mehrotra,J.) 	  (Govind Mathur,J.)

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Allahabad High Court