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HIGH COURT OF ALLAHABAD
S.K.Phaujdar, J.C.Mishra
BHIM SAIN TYAGI
Versus
STATE OF U P
Decided On : 06 March 1996
Criminal Misc. Writ Petition No. 461 of 1998
U. P. CONTROL OF GOONDAS ACT - NOTICE UNDER SECTION 3 - SECTION 3(1) - COURT HELD THAT A WRIT PETITION MAY NOT BE REFUSED TO BE ENTERTAINED ONLY ON THE GROUND OF EXISTENCE OF AN ALTERNATIVE REMEDY EVEN THOUGH THE COURT FINDS A PARTICULAR NOTICE ILLEGAL WHICH MAKES CONSEQUENTIAL ACTS ALSO ILLEGAL.
Fact of the Case:
The petitioner challenged a notice issued under Section 3 of the U. P. Control of Goondas Act, 1970, on the grounds that it was issued by an unauthorized authority and that it did not comply with the requirements of Section 3(1) of the Act.
Finding of the Court:
The court held that the notice was issued by an authorized authority, but that it did not comply with the requirements of Section 3(1) of the Act. The court further held that the opportunity to show cause before the authority who issued the notice was not an adequate alternative remedy, and that a writ petition could not be refused to be entertained solely on the ground of the existence of an alternative remedy.
Issues: 1. Whether the notice was issued by an authorized authority. 2. Whether the notice complied with the requirements of Section 3(1) of the Act. 3. Whether the opportunity to show cause before the authority who issued the notice was an adequate alternative remedy.
Ratio Decidendi: 1. The court held that the notice was issued by an authorized authority because the Additional District Magistrate (ADM) was specifically empowered by the State Government to issue such notices. 2. The court held that the notice did not comply with the requirements of Section 3(1) of the Act because it did not contain the general nature of the material allegations against the petitioner. 3. The court held that the opportunity to show cause before the authority who issued the notice was not an adequate alternative remedy because the petitioner would have to wait for an externment order and then file an appeal, which would not provide immediate relief.
Final Decision: The court quashed the notice and directed that no action be taken against the petitioner in pursuance of the notice until the reference to the larger Bench was answered.
2. So far the first point is concerned, papers were placed before us by the learned AGA to show that the ADM was specifically empowered by the State Government in this behalf. The definition of the term district Magistrate as given in the U. P Control of Goondas Act includes an Addl. District Magistrate specifically empowered by the State Government in that behalf. When there had been such empowerment, as per papers produced before us, the first objection taken by the petitioner is not sustainable.
3. The parties were heard on the preliminary objection raised by the learned AGA. Reliance was placed by the learned AGA on a Division Bench decision of the Allahabad High Court in Ballabh Chaubeys case (as reported in 1997 JIC 519 All ). Here was also there was an issuance of a notice under Section 3 (1) of the U. P Control of Goondas Act. The validity of the notice was challenged and the Court was of the view that an alterna tive remedy was available to the petitioner and, as such, the writ petition was not maintainable. It was observed in para graph 6 of the judgment. "it is settled prin ciple that if proceedings are initiated under a statute which creates a liability and also provides for a remedy, the remedy provided by that statute only must be availed of and not a writ petition under Article 226 of the Constitution. " The Division Bench relied on a decision of the Supreme Court as reported in AIR 1952 SC 64, N. P Poonu Swami v. Returning Of ficer, An order of the returning officer rejecting the nomination papers of the petitioner was challenged in a petition under Article 226 of the Constitution of India and it was held that the Repre sentation of the Peoples Act was a self-contained enactment, so far elections were concerned and it provided for one remedy through an election petition. The High Court had dismissed the writ petition on the ground of alternative remedy and the Supreme Court confirmed the view of the High Court. Reference was also made by the Division Bench of the Allahabad High Court in the case of Ballabh Chaubey to another decision of the Supreme Court as reported in AIR 1957 SC 2140, Nan-hoomalv. Heeramal. The Allahabad High Court had allowed a writ petition chal lenging the validity of the procedure adopted by the District Magistrate who had issued notice to the members of the Municipal Board to fill up a casual vacancy in the office of the President of the Board. The Supreme Court reversed the judg ment of the High Court upon a finding that the election to the office of the President of the Municipal Board could be challenged only in accordance with the procedure prescribed by the U. P Municipalities Act, i. e. by means of an election petition and the High Court could not have exercised its powers under Article 226 of the Con stitution of India to set aside an election.
4. The Division Bench in deciding the question of entertainability of the writ petitions on the faceof availability of alter native remedy had further relied on case-laws touching elections. Reference was also mad
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