Allahabad High Court
Bhunesh Mishra vs State Of U.P. And Others on 23 July, 1997
Equivalent citations: 1998(2)AWC990
Author: B.K. Sharma
Bench: B.K. Sharma
JUDGMENT
Giridhar Malaviya and B.K. Sharma, JJ.
1. In this writ petition, the petitioner has challenged the validity of the notice dated 26.5.1997 issued by Additional District Magistrate (Administration), Allahabad under Section 3(1) of the U. P. Control of Gundas Act. The petitioner's contention is that the said notice is not in accordance with law as has been held by the Full Bench of this Court in case of Ramji Pandey v. State of U. P., 1981 Cr LJ 1083. However, the learned Additional Government Advocate has raised a preliminary objection that a writ petition against the notice issued to the petitioner is not maintainable in view of the recent Division Bench judgment of the Court in Ballabh Chaubey v. Additional District Magistrate, Mathura and others. Writ Petition No. 2354 of 1996 connected with Rajesh Pal v. Additional District Magistrate, Varanasi and others, Criminal Misc. Writ Petition No. J816 of 1996, since reported in 1997 ACrR 387.
When this preliminary objection was raised by the learned Additional Government Advocate, the learned counsel for the petitioner took time to study the said Division Bench judgment. Meanwhile many writ petitions were filed challenging similar notices under Section 3 (1) of U. P. Control of Gundas Act. All these petitions were linked with this petition so that if any other counsel may wish to address this Court on the question of maintainability of writ petitions against such notices under Section 3 (1), U. P. Control of Gundas Act, they may also address the Court. That is how the matter is before us today.
2. We have heard Sri V. M. Zaidt learned counsel for the petitioner. The argument of Mr. Zaidi has been adopted by other counsel of similar writ petitions.
3. Sri Zaidi contended that the view taken by the Division Bench in the case of Baliabh Chaubey (supra) is not correct as the learned Judges of Division Bench misread the case of Raja Suknnandan v. State, AIR 1972 All 498 and Kabir Chawla v. State of U. P., 1994 SCC (Cr) 577. We have gone through these two cases.
4. According to Sri V. M. Zaidi the observation of the Division Bench in Baliabh Chaubey's case that the Division Bench of Allahabad High Court in Raja Siikh Nandan's case had refused to consider the illegality of the notice and that the Supreme Court in Kabir Chawla's case declined to go into the question of validity of notice is not correct inasmuch as in none of these two cases, the validity of the form of notice was even challenged by asserting that the notice lacked in the material particulars. His contention is that in both these judgments, observation of the Court regarding the validity of the notice under Section 3 (1) of the U. P. Control of Gundas Act was confined to the merit of the allegations in the notice. The contention, therefore, is that these two cases relied upon by the Division Bench in Baliabh Chaubey's case were of no help as they did not consider the question of validity of notice as had been done by Full Bench in Kamji Pandey's case.
5. Although the contention of Sri Zaidi to some extent is correct that in Raja Sukhnandan's case as also in Kabir Chawla's case, there was no challenge to the form of the notice but the Division Bench in the case of Baliabh Chaubey has not at all said that in Raja Sukhnandan's case or in Kobir Chawla's case, the validity of the form of notice was under challenge. The Division Bench was considering the question of validity of notice in broader sense. Moreover, in Raja Sukh Nandan's case, the validity of the notice was also challenged on the point that from the general nature of material allegations in support of sub-section (1) of Section 3, the District Magistrate could not be satisfied and he could not reach the conclusion that condition of clauses (a), (b) and (c) had been satisfied. This in substance is the same thing which goes to suggest that on the general nature of material allegation in the notice in support of clauses (a), (b) and (c), the petitioner could not gather the nature of material allegations against him. Therefore, it is clear that intention of the Division Bench in Raja Sukh Nandan's case was to leave this matter to be decided by the District Magistrate who had issued the notice. Similarly in Kabir Chawla's case, the Supreme Court had observed that the petitioner could go to the District Magistrate and satisfy him about the notice by explaining to the District Magistrate that no ground had been made out for passing the order against him.
6. The Division Bench in Ballabh Chaubey's case had dealt with the subject of maintainability of a writ petition against a show-cause notice in detail by quoting various provisions of different statutes and on the strength of various judgments of the Supreme Court in large number of cases, found that a writ petition against a show cause notice was not maintainable. The Division Bench further found that all those cases of the Supreme Court in which it had been held that the alternative remedy was no bar to approach the High Court and Supreme Court in its writ jurisdiction were cases in which fundamental right of a person to approach the Supreme Court under Article 32 was involved and that was the reason why the Supreme Court did not reject these petitions on the ground of alternative remedy.
7. Sri V. M. Zaidi contended that in the instant case also, the liberty of a citizen is involved and, therefore, these judgments of Supreme Court cited in Ballobh Choubey's cose fully apply to the instant case and this Court should also not hold that the petition under Article 226 of the Constitution of India was not maintainable. The contention of Sri Zaidi is not acceptable as in this case, merely on the notice the person to whom the notice has been Issued will not be deprived of his liberty. The U. P. Control of Gundas Act itself provide ample safeguards as also the procedure which gives the person receiving the notice the right to satisfy the authority that no ground had been made out for passing any order against him. Similarly, it is also open to the petitioner to tell the authority issuing the notice that general nature of material allegations in support of clauses (a), (b) and (c) of notice having not been provided to him as has been contemplated in the Full Bench judgment of this Court in the case of Ramji Pandey (supra), it was not possible for him to show cause unless such general nature of material allegations were provided to him. This Court has no reason to doubt that once such an objection is taken along with the judgment of Ramji Pandey of this Court, the concerned officer shall apply his mind to the objection and decide the same.
8. Accordingly, we are of the opinion that view taken by a Division Bench of this Court in Bollobh Chaubey's case is correct. Thus the present writ petition against the show cause notice issued under Section 3 (1) of U. P. Control of Gundas Act to the petitioner is not maintainable and the same is dismissed.