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1999 Supreme(All) 651
HIGH COURT OF ALLAHABAD
Palok Basu, V.P.Goel, S.K.Phaujdar, J.C.Gupta, K.D.Shahi
BHLM SAIN TYAGI
Versus
STATE OF U P
Decided On : 04 May 1999
C. M. W. R No. 461 of 1998
Arvind Tripathi, D.S.MISHRA, R.N.Singh, RAM SHIL SHARMA, Tej Pal,
The requirement of providing the general nature of the material allegations in a show cause notice issued under Section 3(1) of the U. P. Control of Goondas Act, 1970, is essential for the proposed goonda to be able to exercise his right to offer an explanation and produce evidence in support of his explanation.
Headnote:
CONTROL OF GOONDAS ACT - NOTICE - GENERAL NATURE OF MATERIAL ALLEGATIONS - INTERPRETATION - WRIT PETITION - MAINTAINABILITY - ALTERNATIVE REMEDY - SECTION 3(1) - U. P. CONTROL OF GOONDAS ACT, 1970.
Fact of the Case:
A Division Bench referred the following questions to a larger Bench: (1) Whether the view taken by a Full Bench of this Court in the case of Ramji Pandey v. State of U. P. (supra) to the effect that Clause (d) of the notice, which in fact is only the second paragraph of clause (c), under Section 3 (1) of the U. P. Control of Goondas Act alone intended to set out general nature of material allegations against the petitioner with a view to give him opportunity to submit his explanation and to defend himself and it is not possible to accept the contention that matters contained in column (a), (b) and (c) be read as a part of notice while looking at the contents of clause (d), is good law. In other words, whether the notice under Section 9 of the Act as a whole can be read as a composite notice, or whether parts (a), (b) and (c) must be disjointed and contents cannot be read as part of the far allegations of general nature against the son in the notice issued are concerned. (2) If the opportunity of show cause before the authority, who issues a show cause notice not in conformity with the provisions of Section 3 (1) of the U. P. Control of Goondas Act, could be considered an alternative remedy and (3) If a writ petition can 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.
Finding of the Court:
The Court held that: (1) The decision in Ramji Pandey is good law. (2) A show cause notice which fails to indicate general nature of material allegations may be challenged and quashed on that ground under Article 226 of the Constitution of India with liberty to the respondents always to issue fresh notice in accordance with law.
Issues: 1. Whether the view taken by a Full Bench of this Court in the case of Ramji Pandey v. State of U. P. (supra) to the effect that Clause (d) of the notice, which in fact is only the second paragraph of clause (c), under Section 3 (1) of the U. P. Control of Goondas Act alone intended to set out general nature of material allegations against the petitioner with a view to give him opportunity to submit his explanation and to defend himself and it is not possible to accept the contention that matters contained in column (a), (b) and (c) be read as a part of notice while looking at the contents of clause (d), is good law. In other words, whether the notice under Section 9 of the Act as a whole can be read as a composite notice, or whether parts (a), (b) and (c) must be disjointed and contents cannot be read as part of the far allegations of general nature against the son in the notice issued are concerned. 2. If the opportunity of show cause before the authority, who issues a show cause notice not in conformity with the provisions of Section 3 (1) of the U. P. Control of Goondas Act, could be considered an alternative remedy and 3. If a writ petition can 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.
Ratio Decidendi: 1. The Court held that the decision in Ramji Pandey is good law. The Court reasoned that the decision in Ramji Pandey correctly interpreted the provisions of Section 3(1) of the U. P. Control of Goondas Act, 1970, which requires the District Magistrate to inform the proposed goonda of the general nature of the material allegations against him. The Court further held that the requirement of providing the general nature of the material allegations is essential for the proposed goonda to be able to exercise his right to offer an explanation and produce evidence in support of his explanation. 2. The Court held that a show cause notice which fails to indicate general nature of material allegations may be challenged and quashed on that ground under Article 226 of the Constitution of India with liberty to the respondents always to issue fresh notice in accordance with law. The Court reasoned that the issuance of a defective show cause notice violates the proposed goonda's right to be informed of the general nature of the material allegations against him and, therefore, renders the subsequent proceedings illegal.
Final Decision: The Court answered the questions referred to it as follows: (1) The decision in Ramji Pandey is good law. (2) A show cause notice which fails to indicate general nature of material allegations may be challenged and quashed on that ground under Article 226 of the Constitution of India with liberty to the respondents always to issue fresh notice in accordance with law.
A Division Bench while hearing the petition of Bhim Sain Tyagi found that while in Ballabh Chaubey v. Addl. Dist. Magistrate (Finance), Mathura, 1997 All. LJ 1630:1997 JIC 519 (All) a Division Bench held that:-
"the judgment of the Full Bench in Ramji Pandey v. State of U. P, 1981 (7) ALR 410 shows that the question, whether a writ petition should be entertained against a notice was not at all considered. The only question which was canvassed and was considered by the Bench was the notice was in accordance with the requirement of Section 3 of the Act. No such argument that a writ petition under Article 226 of the Constitution should not be entertained at the stage of notice seems to have been can vassed and therefore no decision has been given on this point. . . . . . . . .
"the Full Bench having not considered the question of maintainability of the writ peti tion at the stage of notice the decision rendered by it cannot be held to be an authority 6t binding precedent for holding the writ petition to be maintainable. . .
"in view of the reasons discussed above the writ petitions are dismissed on the ground of alternative remedy. "
And also noticed that another Division Bench in Subas Singh v. D. M. , Ghazipur, 1997 ACC 262 : 1997 JIC 908 (All) has held that:
"we without showing any difference and with due regard to the judgment in the case of Ballabh Chaubey (supra), we examined this case, whether impugned notice on the facts and circumstances of this case would render the subsequent proceeding illegal or not. If yes, it would be futile to send him there to participate in the subsequent proceedings. We having perused the notice and finding, on the facts of this case, the said notice to be directly in con tradiction with the judgment of the aforesaid 1999 (2) JIC Full Bench, which would make subsequent proceedings illegal, we feel it appropriate to exercise our discretion in this regard under Ar ticle 226 of the Constitution of India instead of rejecting the petition as not maintainable, hold the impugned notice to be illegal.
"the petition is accordingly allowed. The impugned notice dated 16-11-1991 is quashed. However, it is without prejudice to the right of the respondents to issue fresh notice in accord ance with law. "
and therefore on the finding that there was apparent conflict in the aforesaid two Division Bench decisions both of which proceeded to rely upon the judgment in Ram Ji Pandey (supra), referred the fol lowing two questions before a larger Beech?
" (1) If the opportunity of show cause before the authority, who issues a show cause notice, not in conformity with the provisions of Section 3 (1) of the U. P. Control of Goondas Apt, could be considered an alternative remedy
(2) if a writ petition may 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 con sequential acts also illegal. "
2. Under the orders of the Honble the Chief Justice a Full Bench of three Judges was constituted in which one of namely (Honble S. K. Phaujdar, J.) was a Member, who happened to be the Senior Judge in Bhim Sen Tyagis case which referred the two questions for considera tion by a Full Bench as noted above. Taking due note of some of the observations in Ramji Pandey, it formulated a third point and after refraining aforesaid two ques tions, recommended hearing of the matter by a Larger Bench because in the opinion of the said Full Bench some observations in Ramji Pandey required reconsideration. This is how this Bench has been con stituted by the Honble the Chief Justice. The three questions which have come up for consideration are quoted in the refer ring order as under:
" (1) Whether the view taken by a Full Bench of this Court in the case of Ramji Pandey v. State of U. P. (supra) to the effect that Clause (d) of the notice, which in fact is only the second paragraph of clause (c), under Section 3 (1) of the U. P. Control of
