Kailash Jaiswal vs State Of U. P. - 2022 Supreme(All) 1163

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 1163

IN THE HIGH COURT OF ALLAHABAD
Suneet Kumar, Syed Waiz Mian, JJ.
Kailash Jaiswal - Petitioner
Versus
State Of U.P. And 3 Others - Respondents
Criminal MISC. Writ Petition No. 10241 of 2019
Decided On : 14-11-2022

Advocates Appeared:
For the Petitioner: Nipun Singh, Ravindra Kumar Tripathi.

Headnote:
Indian Penal Code, 1860 – Sections 189, 332, 504, 506 – Criminal Procedure Code, 1973 – Section 482, 173(2) – Civil Procedure Code, 1908 – Order XXI Rule 97 – Uttar Pradesh Control of Goondas Act, 1970 – Rule 4 – Section ¾ - Quashing of first information report – Threat of injury to public servant – Voluntarily causing hurt to deter public servant from his duty – Intentional insult with intent to provoke breach of the peace – Punishment for criminal intimidation – Criminal administration – Instant petition, inter alia, seeks relief – Held, Second respondent declines to comply directions of State Government, orders passed by trial court, High Court, as well as, Supreme Court – Failing to obtain property in dispute in legal proceedings, second respondent has now resorted to invoke U.P. Goondas Act against petitioner misusing forum of criminal administration – Facts, noted herein above, in no uncertain terms, justifies conduct of second respondent – Second respondent has exposed himself to civil and criminal consequences – Court are constrained to quash impugned notice, issued by District Magistrate – Cost assessed at Rs. 5 lacs is imposed upon second respondent, District Magistrate, Gorakhpur, to be deposited with High Court Legal Services Committee within 10 weeks from date – First respondent Principal Secretary (Home Department), Government of U.P., is directed to get matter inquired and initiate disciplinary enquiry against the then delinquent District Magistrate – Writ petition allowed.

JUDGMENT :

1. Heard learned counsel for the petitioner and learned A.G.A. for the State and perused the material placed on record by the respective parties.

2. Petitioner by the instant petition, inter alia, seeks the following relief:

"i. Issue a writ, order or direction in the nature of certiorari quashing the impugned notice dated 11.04.2019 issued by the District Magistrate, Gorakhpur against the petitioner under section 3/4 of U.P. Goonda Act (Annexure No. 1 to the writ petition)."

3. It is submitted by learned counsel for the petitioner that it is not only a case of malicious prosecution to by-pass the civil decree but at the same time to coerce the petitioner to release the property in dispute in favour of the district administration. It is further submitted that having regard to the definition of 'Goonda' under the Uttar Pradesh Control of Goondas Act, 1970 (for short ‘U.P. Goondas Act’), the proceedings could not have been initiated merely on lodging of a single case.

4.The facts briefly stated is that nazool land, bearing plot no. 125, Bungalow No. 5, situated at Park Road, Gorakhpur, admeasuring 30000 sq. ft. was transferred by the State vide freehold deed dated 24/25 September 1999, duly registered in favour of the petitioner, by the Collector, Gorakhpur, on behalf of the State Government. At the time of execution of the freehold deed, the erstwhile Sales Tax Department, presently, Trade Tax Department was occupying the premises on rent. The Trade Tax Department defaulted in payment of rent, aggrieved, petitioner instituted a SCC suit being Suit No. 33 of 2000 (Kailash Jaiswal Versus State of U.P. through Collector Gorakhpur and Trade Tax Department, through its Deputy Commissioner) seeking ejectment, as well as, recovery of arrears of rent. The suit came to be decreed partially directing ejectment of the Trade Tax Department vide order dated 01 December 2005. Aggrieved, the State of U.P. and the Trade Tax Department raised challenge to the ejectment order in revision being SCC revision No. 1 of 2006, which came to be dismissed vide judgment and order dated 29 March 2006. Thereafter, petitioner filed an execution application for possession of the premises and recovery of the decreetal amount by way of attachment and sale of property of the Trade Tax Department, being Execution Case No. 1 of 2006. Before the execution court the Trade Tax Department gave an undertaking that they would vacate the premises but did not comply with their undertaking. Petitioner in Writ-C No. 5190 of 2010 (Kailash Jaiswal Versus State of U.P. and others) approached this Court, wherein, the Court disposed of the writ petition directing the executing court to complete the execution within a period of one month and further directed the Senior Superintendent of Police and Collector, Gorakhpur, to provide necessary police protection to the executing court to get the decree executed if there is any order to that effect passed by the executing court. The relevant portion of the writ court order dated 06 August 2010 is extracted.

“Upon hearing learned counsel for the petitioner and learned counsel for the respondents, the petition is being finally disposed of with a direction to the Executing Court to complete the execution after considering the objection, if any, within a period of one month from the date of production of certified copy of this order. If there has already been an order by the Executing Court to deploy the police for taking over the possession, the Superintendent of Police and Collector, Gorakhpur are directed to give the necessary assistance of the police protection to the Executing Court so that the order of decree, which has been confirmed upto Apex Court, may be executed and the arrears of rent shall also be paid to the petitioner within the said period.”

5. Thereafter, it appears that possession of the premises was handed over to the petitioner on 30 November 2010. Since then, the petitioner is in peaceful possession of th