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2016 DIGILAW 2272 (ALL)

Ramesh Rajbhar v. State Of U. P.

2016-07-04

RAMESH SINHA, SHAMSHER BAHADUR SINGH

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JUDGMENT : Ramesh Sinha and Shamsher Bahadur Singh, JJ. 1. Heard Sri Mohd. Irfan, learned counsel for the petitioner and Sri Ashish Pandey, learned AGA for the State. 2. The present petition has been filed with a prayer to quash the show cause notice dated 01.06.2016 issued against the petitioner in Case No. D2016155100520, under Section 3 (1) U.P. Control of Goondas Act, 1970 (hereinafter referred to as 'Act, 1970'), Police Station Sarailakhansi, District Mau. 3. It has been contended by learned counsel for the petitioner that there are three cases shown in the show cause notice issued against the petitioner and has also tried to give some explanation of the same and prayed that the notice be quashed. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment passed by a Division Bench of this Court in Crl. Misc. Writ Petition No.11020 of 2016 (Sujeet Kumar Vs. state of U.P. and Others). 4. Learned AGA, on the other hand, has raised a preliminary objection that against the show cause notice issued, the present writ petition is not maintainable and the petitioner is under obligation to submit his reply to the competent authority respondent no.2. He has further placed reliance upon a judgment of this Court in the case of Jainendra @ Chhotu Singh Vs. State of U.P. & others reported in 2007(57) ACC 791 and prayed that the present petition be dismissed on this ground alone. 5. Considered the submissions advanced by learned counsel for the parties and perused the record. 6. From a perusal of the records, it appears that the show cause notice was issued on 1.6.2016 against the petitioner under Section 3 (1) of the 'Act, 1970' by the District Magistrate, Mau (respondent no.2) and the petitioner, instead of replying to the show cause notice to the respondent no.2, has directly rushed to this Court for quashing of the same. 7. From a perusal of the judgment of the Sujeet Kumar (supra) shows that a writ petitions were entertained by this Court against show cause notice and in view of the Division Bench judgment of this Court in the case of Imran @ Abdul Qudus Khan Vs. State of U.P. and others, reported in 2000 (Suppl.) ACC 171 (HC), the said notice has been quashed. 8. State of U.P. and others, reported in 2000 (Suppl.) ACC 171 (HC), the said notice has been quashed. 8. In our considered opinion, the order has been passed by a Division Bench of this Court in the case of Imran @ Abdul Qudus Khan (supra) in which the impugned notice has been quashed, from perusal of paragraph no.3 of the said judgement, it is evident that the Court has held and observed that generally a writ petition against a show cause notice is not maintainable except in some circumstances, which is quoted as under: “3. Normally, a writ petition against a show cause notice is not maintainable as has been held in Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, AIR 1996 SC 691 wherein, the Apex Court was concerned with the entertainment of the writ petition against a show cause notice issued by the competent authority. In that case there was no attack against the vires of the statutory provisions governing the matter and no question of infringement of any fundamental right guaranteed by the Constitution was alleged or proved. It could also not be said in that case that the notice was ex facie 'nullity' or totally 'without jurisdiction' in the traditional sense of that expression that is to say, that even the commencement or initiation of the proceedings on the face of it and without anything more, was totally unauthorized. In the backdrop of these facts, the Apex Court observed as follows :- ...In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show cause notice, at that stage, it should be' shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternative remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India. Learned counsel for the petitioner urged that in view of the law laid down by a Full Bench decision of this Court in Bhim Sain Tyagi v. State of U.P., 1999 UP Cri R 417 : 1999 All LJ 1845 in which the earlier decision of this Court in Ramji Pandey v. State of U.P., (1982) UP Cri R 1 : 1981 All LJ 897 : 1981 Cri LJ 1083 (FB) has been relied upon and approved and in the light of the observations of the Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 : AIR 1999 SC 22 : 1998 AIR SCW 3345 alternative remedy does not affect the jurisdiction of the High Court under Article 226 of the Constitution of India, the present writ petition is maintainable.” 9. The Division Bench of this Court on the basis of the judgment of the Apex Court in the case of Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh and others reported in AIR 1996 (SC) 691 was also of the view that normally a writ petition is not maintainable against a show cause notice and it interfered in the said case only on the ground of the fact that the impugned notice which was passed by the District Magistrate in the said case was without jurisdiction, as is also evident from para18 of the said judgment. 10. It would be noteworthy to mention here that another Division Bench judgment of this Court in the case of Jainendra @ Chhotu Singh (supra) has also held that though there is no legal bar to entertain a writ petition against a notice but the same can only be entertained if notice under the Act, 1970 is defective. All the proceedings are voidabinitio, the notice should be in accordance with Section 3(1) of the 'Act, 1970' and in the said case the Court had held that the learned Magistrate has given reasonable opportunity to explain the notice. 11. All the proceedings are voidabinitio, the notice should be in accordance with Section 3(1) of the 'Act, 1970' and in the said case the Court had held that the learned Magistrate has given reasonable opportunity to explain the notice. 11. So far as the applicability of the law as has been laid down in the case of Imran @ Abdul Qudus Khan (Supra) which has been followed by this Court in case of Sujeet Kumar (supra), in the present case is concerned, the petitioner has not alleged that the impugned notice which has been issued to him by the District Magistrate, Mau was without jurisdiction or it was defective on any account. He simply has tried to submit explanation which he ought to have tendered before the District Magistrate concerned. 12. In view of above discussion, the present writ petition is not maintainable against the show cause notice issued under Section 3(1) of the 'Act, 1970'. 13. Accordingly, the present writ petition is dismissed on this ground alone with a liberty to the petitioner to approach the competent authority to submit his reply and the authority concerned may pass appropriate order in accordance with law.