Exhaustion of alternative remedies before approaching the court under Article 226 of the Constitution.

JUDGMENT :

1. The show-cause notices issued by the Additional District Magistrate, Sitapur, Respondent 2 herein, under Section 3 (1) of the Uttar Pradesh Control of Goondas Act, 1970 (for short the 'Act') are under challenge in the present writ petition.

2. Ms. Rupa Mishra, Advocate holding brief of Shri Suryakant Tripathi, the learned counsel for the Petitioners has contended that the notices have been issued on the basis of two criminal cases; it is contended that Section 2(b)(i) defines 'Goonda' to mean a person who either by himself or as member or leader of a gang, habitually commits or attempts to commit, or abets the commission of an offence punishable under Section 153 or 153-B or Section 294 of the Indian Penal Code or Chapter XV, or Chapter XVI, Chapter XVII, or Chapter XXII of the said code; that only on the basis of two criminal cases, it cannot be said that the petitioner is a person, who habitually commits the aforesaid offences. It is contended that the general nature of the material allegations against the Petitioners in respect of Clauses (a) (b) and (c) of sub-section (1) of Section 3 of the Act have not been mentioned in the notices and as such the said notices are illegal.

3. Ms. Ruhi Siddiqui, learned Additional Government Advocate appearing on behalf of the State-Respondents on the other hand has raised a preliminary objection regarding the maintainability of the writ petition. The counsel contends that the Petitioners have yet to appear before Respondent 2 and show-cause; the writ petition at this stage, is premature and should not be entertained.

4. At this juncture, it is relevant to keep in mind the observations made by the Apex Court, though in a slightly different context in Executive Engineer, Bihar State Housing Board vs. Ramesh Kumar Singh, (1996) 1 SCC 327. Paragarph 10 of the said report reads as under: -

"10. We are concerned in this case, with the entertainment of the Writ Petition against a show cause notice issued by a competent statutory authority. It should be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 notice is ex facie a ‘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, is totally unauthorised. 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 alternate 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."

(emphasis supplied)

5. In Kabir Chawla vs. State of U.P. and others, 1994 Supp (1) SCC 274, while dealing with a challenge to a notice issued under Section (3)(1) of the Act, the Apex Court has held as under :

"The Petitioner has made a grievance in relation to the proceedings that have been initiated against him by the District Magistrate, Nainital, by the show-cause notice dated March 10, 1993 under Section 3 (1) of the U.P. Control of Goondas Act, 1970. The petitioner states that he has submitted his reply to the show-cause notice but no final order has been made so far and that he has to appear before the District Magistrate. The petitioner, however, prays that the said proceedings may be quashed. We do not find any ground for quashing the said proc