Allahabad High Court
Somaru vs State Of U P And Another on 20 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 50 Case :- MATTERS UNDER ARTICLE 227 No. - 9330 of 2022 Petitioner :- Somaru Respondent :- State Of U P And Another Counsel for Petitioner :- Saksham Srivastava,Saurabh Pandey Counsel for Respondent :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.
Heard learned counsel for the petitioner and learned AGA for the State.
Learned counsel for the petitioner submitted that present writ petition has been filed against the order dated 6.6.2022, passed by the District Magistrate, Sonbhadra, passed in Case No.D20221666000919 of 2022 (Sate vs. Lakshminarayan), under Section 14(1) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986 Police Station Robertsganj, District Sonbhadra, by the impugned order, learned District Magistrate directed for attachment of a double storey building owned and possessed by the petitioner on the ground that the same has been acquired by gangster Lakshmi Naryan Singh against whom a case under Section 3(1) of Gangster and Anti-Social Activities (Prevention) Act has been registered vide Crime No. 265 of 2018, at Police Station Robertsganj, District Sonbhadra, in which Lakshmi Narayan Singh has been shown as gang leader. It is further submitted that the said gangster Lakshmi Narayan Singh was only tenant in the house and for that reason water connection was acquired by him with regard to tenanted property in his name. The house in question was built by the petitioner out of his own income and has not been built by money acquired by any gangster as a result of commission of the offence triable under the Act. In official revenue, the ownership of the land on which house is built is not entered in the name of said gangster. The impugned order has been passed by the learned District Magistrate in a cursory manner without giving any opportunity of hearing to the petitioner who is recorded owner of the said land on which the said house is built and to substantiate this fact, extract of Khatauni is filed along with the affidavit to the petition. The land i.e. Plot No. 591, Area 0.3040 hectare was acquired by the petitioner in succession, which was previously recorded in the name of his father Badri and his co-sharers. Therefore, it is prayed that the impugned order may kindly be set aside or quashed.
Per contra, learned AGA submitted that the petitioner has not approached the District Magistrate to seek statutory remedy under Section 15 of the U.P. Gangster and Anti-social Activities (Prevention) Act and he may be directed to move a representation under Section 15 of the Act before the learned District Magistrate seeking appropriate relief.
I have gone through the provisions of Sections 14, 15 and 16 of the Act, which are re-produced as under:-
"14. Attachment of property. - (1) If the District Magistrate has reason to believe that any property, whether moveable or immovable, in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under this Act, he may order attachment of such property whether or not cognizance of such offence has been taken by any Court.
(2) The provisions of the Code shall, mutatis mutandis apply to every such attachment.(3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under subsection (1) and the Administrator shall have all the powers to administer such property in the best interest thereof.(4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property.
15. Release of property. - (1) 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 in and the sources by which such property was acquired by him.(2) If the District Magistrate is satisfied about the genuineness of the claim made under sub-section (1) he shall forthwith release the property from attachment and thereupon such property shall be made over to the claimant.
16. Inquiry into the character of acquisition of property by Court. - (1) Where no representation is made within the period specified in sub-section (1) of Section 15 or the District Magistrate does not release the property under sub-section (2) of Section 15 he shall refer the matter with his report to the Court having jurisdiction to try an offence under this Act.(2) Where the District Magistrate has refused to attach any property under sub-section (1) of Section 14 or has ordered for release of any property under sub-section (2) of Section 15, the State Government or any person aggrieved by such refusal or release may make an application to the Court referred to in sub-section (1) for inquiry as to whether the property was acquired by or as a result of the commission of an offence triable under this Act. Such Court may, if it considers necessary or expedient in the interest of justice so to do, order attachment of such property.(3)(a) On receipt of the reference under sub-section (1) or an application under sub-section (2), the Court shall fix a date for inquiry and give notices thereof to the person making the application under subsection (2) or, as the case may be, to the person making the representation under Section 15 and to the State Government, and also to any other person whose interest appears to be involved in the case.
(b) On the date so fixed or any subsequent date to which the inquiry may be adjourned, the Court shall hear the parties, receive evidence produced by them, take such further evidence as it considers necessary, decide whether the property was acquired by a gangster as a result of the commission of an offence triable under this Act and shall pass such order under Section 17 as may be just and necessary in the circumstances of the case.
(4) For the purpose of inquiry under sub-section (3) the Court, shall have the power of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Act No. 5 of 1908), in respect of the following matters, namely :-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any Court or office;
(e) issuing commission for examination of witness or documents;
(f) dismissing a reference for default or deciding it ex parte
(g) setting aside an order of dismissal for default or ex parte decision.
(5) In any proceedings under this section, the burden of proving that the property in question or any part thereof was not acquired by a gangster as a result of the commission of any offence triable under this Act, shall be on the person claiming the property, anything to the contrary contained in the Indian Evidence Act, 1872 (Act No. 1 of 1872), notwithstanding."
Keeping in view, the provisions of Section 15 of the Act, as above, the petitioner/claimant is directed to make a representation to the District Magistrate against attachment of property in question by him in exercise of powers under Section 14 of the Act, showing the circumstances and the sources by which this property was acquired by him. He may also file an affidavit mentioning grounds due to which he could not make a representation within stipulated time.
The petitioner will file necessary documents in support of his claim over the property in question.
It is expected that the District Magistrate will decide the said representation by a reasoned and speaking order in accordance with law within two months from the date of production of certified copy of this order.
Accordingly, the present writ petition is disposed of, subject to above directions.
Order Date :- 20.1.2023 Kamarjahan