Gobardhan vs State of U.P. and Others

J.C. Gupta and C.P. Mishra, JJ.—Heard Sri Dharmendra Pratap Singh, learned Counsel for the Petitioner and learned A.G.A. for the State.

On behalf of the State, counter-affidavit has been filed. Learned Counsel for the Petitioner submits that he does not require time to file rejoinder-affidavit.

Learned Counsel for the Petitioner submitted that the impugned notice purporting to be u/s 3(1) of U. P. Control of Goondas Act, is wholly illegal as it does not fulfil the mandatory requirement of law inasmuch as it does not set out the general nature of material allegations. In support of his submission, he placed reliance on two Full Bench decisions of this Court in Ramji Pandey Vs. State of Uttar Pradesh and Others, and Bhim Sen Tyagi v. State of U.P. JT1999 All 611. This legal position is not disputed from the side of the State. On the other hand, learned A.G.A. submitted that it is open for the Petitioner to challenge the validity of the show cause notice before the authority concerned and he should not be allowed to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Learned Counsel for the Petitioner contended that the District Magistrate gets jurisdiction only after issuing notice as contemplated u/s 3(1) of U. P. Control of Goondas Act, and once it is found that the said notice is wholly illegal, null and void, the entire proceedings get vitiated. He argued that where the matter goes to the root of jurisdiction of the authority, this Court can interfere in writ jurisdiction.

We find force in the submission of the learned Counsel for Petitioner. There can be no dispute that the District Magistrate gets power and jurisdiction to hold an enquiry u/s 3 of U. P. Control of Goondas Act, only after issuing a notice as contemplated u/s 3(1) of the Act. Section 3(1) of the Act mandatorily requires the authority concerned to set out in the notice the general nature of material allegations. In the case of Faiyaz Ahmad v. State of U.P. and Ors. 1994 ACR 62 : 1974 ACC 387, it was held that if the notice fails to contain the general nature of material allegations, it will be vitiated and the proceedings taken in pursuance thereof would be rendered null and void. Similarly, in the Division Bench case of Harsh Narain v. District Magistrate, Allahabad 1972 ALJ 762, it was held that the defect of not setting out the general nature of material allegations in the notice is a fatal defect as it results in non-compliance of the provisions of Section 3(1). The notice cannot be deemed to be a notice u/s 3(1). In Full Bench decision in Bhim Sain Tyagi v. State of U.P. 1999 (2) ACR 1286 (FB) : JT1999 All 611, this Court specifically considered this question and came to the conclusion that the writ petition filed against the Petitioner to show cause notice is maintainable where the notice has been challenged as null and void. This Court, therefore, finds no force in the submission of the learned A.G.A.

We have perused the impugned notice and find that it does not fulfil the mandatory requirement of Section 3(1) of the Act inasmuch as it does not contain the material allegations of general nature and does not give proper and sufficient opportunity to the Petitioner to answer and defend himself. Consequently, the impugned notice as well as the proceedings pursuant thereto cannot be allowed to continue.

For the reasons stated above, this petition succeeds and is allowed. The impugned notice dated 23.4.2001 as well as the proceedings drawn in pursuance thereof are quashed. It is, however, made clear that it shall be open for the District Magistrate to initiate fresh proceedings against the Petitioner in accordance with law if he deems it necessary.