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2007 DIGILAW 530 (UTT)

Ashok alias Kallu v. State of Utaranchal

2007-10-26

DHARAM VEER

body2007
JUDGMENT By means of this petition, the petitioner has prayed to issue writ of certiorari quashing the judgment and order dated 7-11-2001 passed by Respondent No. 2- Commissioner, Garhwal Mandal, Pauri Garhwal, Camp Dehradun; judgment and order dated 28-9-2001 passed by Respondent No. 3- District Magistrate, Hardwar as well as notice dated 29-3-2001 issued by Respondent No.3- District Magistrate, Hardwar. 2. Briefly stated, facts of the case are that on 29-3-2001, a show cause notice was issued to the petitioner by respondent No.3 u/s 3(1) of U.P. Control of Goondas Act, 1970 (hereinafter to be referred as the Act) and Rule 4 of U.P. Control of Goondas Rules, 1970, whereby the petitioner was directed to be present before Respondent No. 3 on 20-4-2001 at 10:00 A.M. and an application was also sought that why he be not removed for six months from the area of entire District Hardwar as per the provisions of Section 3(3)(a) of the Act. The petitioner replied the said show cause notice on 11-5-2001 and he has stated in his reply that he is a reputed person of Hardwar and he never committed any crime nor he is a leader of gang indulged in the commission of criminal acts. It was also stated that he is always ready to fight against the problems of down trodden people of the society and the police has falsely implicated him. District Magistrate, Hardwar vide his judgment and order dated 28-9-2001 after considering the explanation given by the petitioner and also considering the Chalani Report given by the Incharge Inspector, Police Station, Kotwali Hardwar dated 16-2-2001 showing nine cases against the petitioner, declared the petitioner as 'Goonda' and as such passed the impugned order whereby the petitioner was removed for a period of six months from the area of District Hardwar. It was also directed that wherever the petitioner would reside outside the area of Distt. Hardwar, he would give his attendance in the nearest police station. Being aggrieved by the said order dated 28-9-2001, the petitioner preferred an appeal before Commissioner, Garhwal Mandal, Pauri Garhwal. The petitioner thereafter also preferred a writ petition before this Court bearing Writ Petition (MIS) No. 5585/2001 which was disposed of by this Court on 30-10-2001. Hardwar, he would give his attendance in the nearest police station. Being aggrieved by the said order dated 28-9-2001, the petitioner preferred an appeal before Commissioner, Garhwal Mandal, Pauri Garhwal. The petitioner thereafter also preferred a writ petition before this Court bearing Writ Petition (MIS) No. 5585/2001 which was disposed of by this Court on 30-10-2001. with the direction to the Commissioner, Garhwal Division, Pauri Garhwal to decide the appeal of the petitioner by a speaking order within ten days after one day from the date of order passed by this Court i.e. 31-10-2001. It was also directed that it will be open for the petitioner to raise rest of the points in the fresh writ petition, in case his appeal fails. In compliance of the order passed by this Court on 31-10-2001, the Commissioner, Garhwal Mandal decided the appeal of the petitioner vide his judgment and order dated 7-11-2001 whereby the appeal preferred by the petitioner was dismissed and order dated 28-9-2001 passed by District Magistrate, Hardwar was confirmed. Feeling aggrieved, the petitioner has filed the present writ petition before this Court. 3. I have heard Sri A.D. Tripathi, learned counsel for the petitioner and Sri Harish Pujari, learned Addl. G.A. for the State and also perused the judgments and orders passed by the courts below and also perused the entire material available on record. 4. Sri Harish Pujari, learned Addl. G.A. for the State has submitted that as per judgment and order dated 28-9-2001 passed by District Magistrate, Hardwar which was co'1firmed by Commissioner, Garhwal Mandal, Pauri Garshwal, Camp Dehradun vide his judgment and order dated 7-11-2001, the petitioner was directed to be removed for a period of six months from the area of District Hardwar and now that period has been expired and as such this petition has been rendered infructuous because the judgment and orders dated 48-9-2001 and 7-11-2001 have been executed. 5. The petitioner had filed the Writ Petition (M/S) No. 5585 of 2001 before this Court against the notice u/s 3(1) of the Act dated 29-3-2001 issued by Respondent No.3 and it was also prayed to quash the judgment and order dated 28-9-2001 passed by Respondent No.3 and also against the order dated 9-10-2001 passed by Respondent No. 2- Commissioner, Garhwal Mandali whereby the application of the petitioner for grant of stay order against the order dated 28-9-2001 was rejected. 6. 6. In the earlier writ petition, the petitioner had challenged the notice dated 29-3-2001 passed by Respondent No.3- District Magistrate, Hardwar and also challenged the judgment and order dated 28-9-2001 issued by Respondent No.3 and in the instant writ petition also, the petitioner has also challenged the impugned notice dated 29-3-2001 and judgment and order dated 28-9-2001 which is not permissible as per law. 7. Even otherwise, so far as impugned notice dated 29-3-2001 issued by Respondent No.3 is concerned, in a judgment rendered by Division Bench of this Court in W.P. 916 of 2007 (M/B) Chaudhary Rees Ahmed v. State of Uttarakhand, which was decided on 17-8-2007, it was held that against the show cause notice, the writ petition is not maintainable. In view of the aforesaid judgment rendered by Division Bench of this Court, it is ample clear that the writ petition against the impugned show cause notice is not maintainable, thus the instant writ petition also fails on this very ground. 8. From the evidence discussed above, it is clear that in the notice dated 29-3-2001, nine cases have been shown against the petitioner and out of those nine cases, in four cases, the petitioner has been acquitted and three cases u/s 60 of Excise Act were shown pending against the petitioner. Learned counsel for the petitioner submitted that since when the offence under the Excise Act is not proved against the petitioner, he cannot be declared as a 'Goonda'. The learned Commissioner, Garhwal Mandal has rightly held that as per the provisions of the Act, only the conviction of the petitioner under the Excise Act is not sufficient for declaring him as a Goonda. The image of person in the society is an important factor and as per sub-clause (iv) of clause (b) of Section 2 of the Act, a person who is desperate and dangerous to the community, he is a 'Goonda' under the Act. The cases shown against the petitioner itself show that the image of the petitioner in the society is of a criminal and anti-social element due to which the feeling of terror and insecurity spreads in the society. Thus, it is clear that the petitioner is a person who is desperate and dangerous to the community. The cases shown against the petitioner itself show that the image of the petitioner in the society is of a criminal and anti-social element due to which the feeling of terror and insecurity spreads in the society. Thus, it is clear that the petitioner is a person who is desperate and dangerous to the community. In view of these facts and circumstances of the case, this Court is of the considered view that the petitioner has rightly been removed under Section 3(3)(a) of the Act for a period of six months from the area of District Hardwar. 9. For the reasons recorded above, the writ petition is devoid of any merit and is hereby dismissed. The judgments and orders passed by courts below are hereby confirmed.