# Faheem v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 552
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-26
- **Case number:** Criminal Misc. Writ Petition No. 5477 of 2021
- **Bench:** Surya Prakash Kesarwani, Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/faheem-v-state-of-u-p-ors-46374
- **Pages:** 10

## Headnote

U.P. Control of Goonda Act, 1970-Section
3 (1) - Impugned show cause notice
issued-on single criminal case on account
of matriminial dispute-Single act cannot
bring
him
within
the
meaning
of
"Goonda"-notice issued is illegal. Cost
awarded to each Petitioner.

W.P. disposed. (E-9)

List of Cases cited:

1.Bhim Sain Tyagi Vs St. of U.P. & ors. 1999 (39)
ACC 321 (FB)

## Text

552 INDIAN LAW REPORTS ALLAHABAD SERIES
considerations which are malafide or where
there is flagrant abuse of power the public
functionary himself must shoulder the
burden of costs or compensation held as
payable.

20. In the case of M/s Transport
Corporation of India Ltd., Hyderabad
vs. Commissioner of Trade Tax, U.P.,
1998 UPTC 950 (para-5), learned Single
Judge of this Court has observed in the
matter of interception of truck by Trade
Tax Authorities that drivers need help and
guidance and officers at the check post, are
expected to render them the necessary help
and guidance and any minor deficiency
should be ignored or got rectified. They are
not expected to act as hounds smelling a rat
everywhere and put undesirable restraint on
the movements of goods.

21. The observations made in the
aforesaid judgment, in principle, applies on the
facts of the present case also. The officers of the
respondent - Development Authorities are not
expected to act as hounds smelling a rat
everywhere and put an undesirable restraint or
hindrances in granting permission or sanction of
building map filed by an individual, particularly
in matters of small houses, like the present one
and to harass further lodge first information
report to book the applicant/ petitioner to initiate
malafidely criminal proceedings.

22. Although, we intended to conclude
this judgment today but the learned A.G.A.
and respondent no. 3 made statements on
instruction that the respondents themselves
will
examine
the
matter
for
taking
appropriate decision/action and, therefore,
the case may be adjourned for the day.

23. As prayed by learned A.G.A. and
respondent no. 3, put up as a fresh case on
25.10.2021 for further hearing.

24. On the next date fixed, respondent
nos. 3 and 4 shall file their personal affidavits.

25.

Considering
the
facts
and
circumstances
of
the
case,
as
briefly
noted/discussed above, as well as the provisions
of Section 48 of the Act of 1973, as an interim
measure, it is provided that till next date fixed,
the petitioner shall not be arrested.

26. This order has been passed in
presence of Sri Arvind Chauhan, Vice
Chairman, Prayagraj Development Authority
and Sri R.S. Verma, Law Officer, Prayagraj
Development Authority, who are present in
Court.

27. It is made clear that both the
aforesaid officers are not required to
remain personally present before this
Court on the next date fixed.
----------
(2021)10ILR A552
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J
THE HON'BLE PIYUSH AGRAWAL, J.

Criminal Misc. Writ Petition No. 5477 of 2021
with
Criminal Misc. Writ Petition No. 5439 of 2021
with
Criminal Misc. Writ Petition No. 5521 of 2021

Faheem ...Petitioner
Versus
State of U.P. & Ors. ....Respondents

Counsel for the Petitioner:
Sri Mohammad Akram

Counsel for the Respondents:
A.G.A.
10 All. Faheem Vs. State of U.P. & Ors.
553
U.P. Control of Goonda Act, 1970-Section
3 (1) - Impugned show cause notice
issued-on single criminal case on account
of matriminial dispute-Single act cannot
bring
him
within
the
meaning
of
"Goonda"-notice issued is illegal. Cost
awarded to each Petitioner.

W.P. disposed. (E-9)

List of Cases cited:

1.Bhim Sain Tyagi Vs St. of U.P. & ors. 1999 (39)
ACC 321 (FB)

2. Imran @ Abdul Quddus Khan Vs St. of U.P.
reported in 2000 (1) ACC 171

3.Suresh Tewari Vs St. of U.P. & ors., reported in
2018 (5) ALJ 1

4.Vijay Narain Singh Vs St. of Bihar, 1984 (3)
SCC 14

5.Criminal Misc. Writ Petition No. - 347 of 2021
(Rahul Yadav Vs State Of U.P. & 2 ors.)

(Delivered by Hon'ble Surya
Prakash Kesarwani, J.
 &
Hon'ble Piyush Agrawal, J.)

1. Heard Sri Mohammad Akram,
learned counsel for the petitioners and Sri
Roopak Chaubey, learned AGA for Staterespondents.

2. On oral request of learned counsel
for the petitioners, Superintendent of
Police, Bijnor is allowed to be impleaded
as respondent no. 3 in Criminal Misc. Writ
Petition Nos. 5439 of 2021 and 5521 of
2021 writ petitions. Necessary correction
be carried out in the array of parties during
course of the day.

3. Notice on behalf of respondent no.
3 has been accepted by the learned AGA.

4. All the above noted writ petitions
involving challenge to the similar notices
dated 5.10.2020 issued by Additional
District
Magistrate
(Administration),
Bijnor, under Section 3 (1) of UP Control
of Goondas Act, 1970 (hereinafter referred
to as ''the Act of 1970').

5. Since the facts and controversy
involved in all the above writ petitions are
similar, therefore, with the consent of
learned counsel for the parties, all these
writ petitions are being finally decided
together, treating Criminal Misc. Writ
Petition No. 5477 of 2021 as leading writ
petition and facts therein are being noted.

6. The leading writ petition was heard
on 17.8.2021, 18.8.2021, 19.8.2021 and
25.8.2021. On 17.8.2021, this Court has
passed the following order :-

"This writ petition has been filed
praying
to
quash
the
notice
dated
05.10.2020
issued
by
the
Additional
District
Magistrate
(Administration),
Bijnor under Section 3(1) of U.P. Control
of Goondas Act, 1970.

Learned counsel for the petitioner
submits that the impugned notice has been
issued merely on the basis of Case Crime
No.130/2020
dated
05.04.2020
under
Sections 330, 354(kha) and 506, I.P.C.,
P.S. Najibabad, District Bijnor which
arises
from
the
matrimonial
dispute
between brother of the petitioner, namely
Sikandar and his wife, in which the
petitioner
being
brother
was
falsely
implicated.
He
further
submits
that
subsequently, the aforesaid husband and
wife have also entered into a compromise
on 29.08.2020 and resolved their dispute.

Prima facie, the impugned notice
appears to be an abuse of process of law by
the respondent No.2.
554 INDIAN LAW REPORTS ALLAHABAD SERIES

Learned A.G.A. prays for and is
granted a day's time to obtain instructions.

Put up tomorrow as a fresh case
at 10 A.M. "

7. On 18.8.2021, this Court has
passed the following order :-

"On the oral request of learned
counsel
for
the
petitioner,
the
Superintendent of Police, Bijnor is allowed
to be impleaded as respondent no. 3 during
the course of the day.

Notice on behalf of respondent
no. 3 has been accepted by the learned
AGA.

Pursuant to the order dated
17.08.2021, learned AGA has received
written
instructions
and
states
that
pursuant to the impugned notice dated
05.10.2020, the petitioner appeared on
23.10.2020 and 01.03.2021, submitted
reply on 19.07.2021 and the next date fixed
is 20.08.2021.

As prayed, put up tomorrow, i.e.,
on 19.08.2021 at 10.00 a.m. for further
hearing to enable the respondents to file
counter affidavit.

In the counter affidavit, the
respondents shall show cause as to why
exemplary costs be not imposed upon them,
as the impugned notice under section 3(1)
of the Uttar Pradesh Control of Goondas
Act, 1970, prima facie, appears to be abuse
of the process of law by the respondents for
brief reasons noted in our order dated
17.08.2021."

8. On 25.8.2021, this Court has
passed the following order :-

"Heard Sri Mohammad Akram,
learned counsel for the petitioner and Sri
Roopak Chaubey, learned A.G.A. for the
State-respondents.

Counter affidavit on behalf of the
respondent nos. 2 and 3 dated 18.08.2021
and an affidavit in the form of the counter
affidavit
dated
23.08.2021
of
Paramachandra
Srivastava,
Naib
Tehsilder, Dhampur, District Bijnor (who
is not respondent in the present writ
petition) have been filed today, which are
taken on record.

Learned counsel for the petitioner
states that against the similar show cause
notices relating to the same FIR No. 130 of
2020, dated 05.04.2020, the other accuseds
have filed Criminal Misc. Writ Petition No.
5439 of 2021 (Mukarram Versus State of
U.P. and another) and Criminal Misc. Writ
Petition No. 5521 of 2021 (Waseem Versus
State of U.P. and another), which have not
yet come up for hearing as a fresh case.

Learned
A.G.A.
states
on
instructions that show cause notices in
cases of other accuseds have also been
withdrawn. He undertakes to produce the
relevant orders on the next date.

Put up tomorrow as fresh case for
further hearing at 10.00 A.M. along with
record of Criminal Misc. Writ Petition Nos.
5439 of 2021 (Mukarram Versus State of
U.P. and another) and Criminal Misc. Writ
Petition No. 5521 of 2021 (Waseem Versus
State of U.P. and another)."

9. In paragraph nos. 5, 6, 7 and 8 of
the counter affidavit dated 18.8.2021, the
Additional
District
Magistrate
(Administration)
District
Bijnor,
respondent no. 2 (who issued the impugned
notice) has stated as under:-

"5. That it is stated that the
petitioner is an accused of case crime no.
130 of 2020 under sections 323, 354 B, 506
IPC, Police Station Nazibabad, District
Bijnore. As section 354 B IPC relates with
the offence against women and preventive
10 All. Faheem Vs. State of U.P. & Ors.
555
actions are being taken in such type of
coses, therefore inadvertently, in the
present case also, the notice under Section
3 (1) of UP Control of Goondas Act was
issued, whereas the dispute between the
parties was infact matrimonial dispute.

6. That the deponent admits that
the issuing of the notices under section 3
(1) of UP Control of Goondas Act is not
required under the law in such type of
matrimonial disputes.

7. That the deponent tenders his
unconditional and unqualified apology for
the inconvenience caused to this Hon'ble
Court, though the same was inadvertent
and the deponent undertakes to be more
cautious and vigilant in future in respect of
his duties and action.

8. That it is further submitted that
in the aforesaid case, the next date fixed is
20.8.2021 and on that date, the notices
under Section 3 (1) of UP Control of
Goondas Act issued against the petitioner
shall be withdrawn."

10. In paragraph nos. 4, 5 and 6 of the
counter affidavit dated 18.8.2021, the
Superintendent of Police, District Bijnor,
respondent no. 3 has stated as under:-

"4. That it is stated that the
deponent
/
respondent
no.
3
had
recommended
the
proceedings
under
Section 3 91) of UP Goondas Act, against
the petitioner on the basis of the first
information report registered against the
petitioner in Case Crime No. 130 of 2020
under Section 323, 354 B, 506 IPC, Police
Station Nazibabad, District Bijnore and
beet informations as the offence in Case
Crime No. 130 of 2020 was related to
crime
against
women,
therefore,
inadvertently, in the present case, the
deponent had recommended for initiation
of proceeding under Section 3 (1) of UP
Goondas Act, whereas the dispute between
the parties was infact matrimonial dispute.

5. That the deponent admits that
his recommendation for issuing the notices
under Section 3 (1) of UP Control of
Goondas Act is not required under the law
in such type of matrimonial disputes. On
18.8.2021, the deponent had recommended
for withdrawal of notices issued under
Section 3 (1) of UP Control of Goondas Act
against the petitioner before the competent
authority i.e. respondent no. 2.

6. That the deponent tenders his
unconditional and unqualified apology for
the inconvenience caused to this Hon'ble
Court, though the same was inadvertent
and the deponent undertakes to be more
cautious and vigilant in future in respect of
his duties and action particularly in
recommending for issuance of notices
under section 3 (1) of UP Goondas Act."

11. In paragraph no. 5 of the counter
affidavit dated 23.8.2021 filed by Naib
Tehsildar, Dhampur, District Bijnor, it has
been stated as under :-

"5. That on 20.8.2021 was the
date fixed in the present matter before the
respondent no. 2 but as 20.8.2021 was
declared holiday, therefore, the matter was
heard by respondent no. 2 on 21.8.2021.
On that date after hearing the parties and
after perusing the matter on record the
respondent no. 2 had withdrawn his show
cause notice dated 05.10.2020 issued to the
petitioner."

12. Learned AGA has produced
before us the copies of two orders, both
dated 21.8.2021 passed in the matter of
show cause notice issued to the co-accused
namely Waseem and Mukarram, which are
the subject matter of above noted Criminal
Misc. Writ Petition Nos. 5521 of 2021 and
556 INDIAN LAW REPORTS ALLAHABAD SERIES
5439 of 2021 and it shows that the show
cause notices issued to aforesaid two
petitioners have also been withdrawn by
the
Additional
District
Magistrate
(Administration), Bijnor by two separate
orders dated 21.8.2021. Learned AGA has
also produced a copy of the order dated
21.8.2021 issued to another co-accused
under Section 3 (1) of the Act of 1970,
passed by Additional District Magistrate,
(Administration), Bijnor, which shows that
similar notices under Section 3 (1) of the
Act of 1970 has been withdrawn.

13. Perusal of the counter affidavits
filed by the respondents as afore-quoted
itself shows that it is admitted case of the
respondents that impugned show cause
notice under Section 3 (1) of the Act of
1970 was issued to the petitioner merely
on the ground of single criminal case
registered against him on account of
some matrimonial dispute.

14. Section 2 (b) of UP Control of
Goondas Act, 1970 defines the word
"Goonda", as under:-

"2 (b). 'Goonda' means a person
who-

(i) either by himself or as a
member or leader of a gang, habitually
commits or attempts to commit, or abets the
commission of an offence punishable under
Section 153 or Section 153-B or Section
294 of the Indian Penal Code or Chapter
XV, Chapter XVI, Chapter XVII or Chapter
XXII of the said Code; or

(ii) has been convicted for an
offence punishable under the Suppression
of Immoral Traffic in Women and Girls
Act, 1956; or

(iii) has been convicted not less
than thrice for an offence punishable under
the U.P. Excise Act, 1910 or the Public
Gambling Act, 1867 or Section 25, Section
27 or Section 29 of the Arms Act, 1959; or

(iv) is generally reputed to be a
person who is desperate and dangerous to
the community; or

(v) has been habitually passing
indecent remarks or teasing women or
girls; or

(vi) is a tout;"

15. Perusal of the definition of the
word "Goonda" as afore-quoted shows that
a
competent
authority
may
initiate
proceeding under the Act of 1970, only if
the person is "Goonda" as defined under
the Act. Section 2 (b) provides that
"Goonda" means a person who either by
himself or as a member or leader of a gang,
habitually commits or attempts
to
commit, or abets the commission of an
offence punishable under Section 153 or
Section 153-B or Section 294 of the Indian
Penal Code or Chapter XV, Chapter XVI,
Chapter XVII or Chapter XXII of the said
Code; or has been convicted for an offence
punishable under the Suppression of
Immoral Traffic in Women and Girls Act,
1956; or has been convicted not less than
thrice for an offence punishable under the
U.P. Excise Act, 1910 or the Public
Gambling Act, 1867 or Section 25, Section
27 or Section 29 of the Arms Act, 1959; or
is generally reputed to be a person who is
desperate and dangerous to the community;
or has been habitually passing indecent
remarks or teasing women or girls; or is a
tout.

16. In the case of Bhim Sain Tyagi v.
State of U.P. And others 1999 (39) ACC
321 (FB), a Full Bench of this court has
held as under:

"17. The aforesaid anxiety of the
Division Bench should be taken due note by
10 All. Faheem Vs. State of U.P. & Ors.
557
the Executive and whenever a show cause
notice is issued, it should strictly comply
with the provisions of the Act and rules.
Once the decision of Ramji Pandey has
held the field in this State for more than 18
years, there does not seem to be any
necessity of taking a contrary view for the
simple reason that all that the District
Magistrate was expected by that decision to
do is that the proposed Goonda should be
made aware of "general nature of material
allegation" against him, which is the
requirement of the law. By asking the
respondents to furnish to the proposed
Goonda the general nature of material
allegations against him, the Full Bench in
Ramji Pandey only required the law to be
followed. None should doubt that once in
the show cause notice, the general nature
of the material allegations exists, no Court
interference with such a show cause notice
is called for. Challenge to a valid show
cause
notice
complying
with
the
requirement of law has always failed and
no scope of exercising provisions under
Article 226 of the Constitution of India
exists in such matters. On the contrary,
whenever general nature of material
allegations are absent and the proposed
goonda raises a grievance through a
petition
under
Article
226
of
the
Constitution
of
India,
this
Court's
interference to the extent of the illegality
of the notice being examined has been
rightly upheld in Ramji Pandey but
simultaneously it must be added that,
always ensuring that, fresh notice may be
issued by the District Magistrate in
accordance with law. It has already been
noticed above that in Subas Singh (supra),
the respondents' right to issue fresh notice
in accordance with law was upheld and
even in Harsh Narain (supra), subsequent
proceedings alone were quashed due to the
defective notice.

18. In the administration of
criminal law in our country, one comes
across two very important terms (1) charge
and (ii) statement of accused. In fact, these
two are fundamental requirements of the
principles of natural justice which have to be
followed before an accused is condemned.
One would shudder at the idea that an
accused shall have stood condemned when
the charge would only narrate that there is
an F.I.R. against him registered under
Section 302, I.P.C. at a police station or that
in the statement of the accused, only one
question is put to him that an F.I.R. has been
lodged against him under Section 302 at a
police station and that alone is held sufficient
compliance of law. For action against a
proposed goonda, the provisions contained in
Section 3 of the Act, bereft of the
technicalities and broader legal necessities in
a trial of an accused under the Criminal
Procedure Code, combine not only the
"charge" and the "statement of the accused",
but also requires his "defence evidence".
Thus, the proposed goonda must get the
fullest
opportunity
to
defend
himself.
Therefore, the general nature of the material
allegations must be disclosed to him by the
District Magistrate.

19....

20. In view of the aforesaid
discussion, the combined answer to the
aforesaid three questions is that the
decision in Ramji Pandey is good law, 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."

(Emphasis supplied by us)

17. In Imran Alias Abdul Quddus
Khan Vs. State of U.P. reported in 2000
558 INDIAN LAW REPORTS ALLAHABAD SERIES
(1) ACC 171 (paras-11, 12, 13 and 14), a
Division Bench of this Court explained the
provisions of Section 2(b) of the Act, 1990
and held as under:

"11. Ex facie, a person is termed
as a 'goonda' if he is a habitual criminal.
The provisions of section 2 (b) of the Act
are almost akin to the expression 'anti
social element' occurring in section 2 (d) of
Bihar Prevention of Crimes Act, 1981. In
the context of the expression 'anti social
element'
the
connotation
'habitually
commits' came to be interpreted by the
apex court in the case of Vijay Narain
Singh V. State of Bihar and others (1984)
3 SCC-14. The meaning put to the
aforesaid expression by the apex court
would squarely apply to the expression
used in the Act, in question. The majority
view was that the word 'habitually' means
'repeatedly' or 'persistently'. It implies a
thread of continuity stringing together
similar repetitive acts. Repeated, persistent
and similar but not isolated, individual
and dissimilar acts are necessary to justify
an inference of habit. It connotes frequent
commission of acts or omissions of the
same kind referred to in each of the said
sub-clauses or an aggregate of similar
acts or omissions. Even the minority view
which was taken in Vijay Narain's case
(supra) was that the word 'habitually'
means 'by force of habit'. It is the force of
habit inherent or latent in an individual
with a criminal instinct with a criminal
disposition of mind, that makes a person
accustomed to lead a life of crime posing
danger to the society in general. If a person
with criminal tendencies consistently or
persistently or repeatedly commits or
attempts to commit or abets the commission
of offences punishable under the specified
chapters of the Code, he should be
considered to be an 'anti social element'.
There are thus two views with regard to the
expression 'habitually' flowing from the
decision of Vijay Narain's case (supra).
The majority was inclined to give a
restricted meaning to the word 'habitually'
as denoting 'repetitive' and that on the
basis of a single act cannot be said to be
forming the habit of the person. That is to
say, the act complained of must be repeated
more than once and be inherent in his
nature. The minority view is that a person
in habitual criminal who by force of habit
or inward disposition inherent or latent in
him has grown accustomed to lead a life of
crime. In simple language, the minority
view
was
expressed
that
the
word
'habitually; means 'by force of habit'. The
minority view is based on the meaning
given in stroud's Judicial Dictionary,
Fourth Ed. Vol. II-1204-habitually requires
a continuance and permanence of some
tendency, something that has developed
into a propensity, that is, present from day
to day. Thus, the word- 'habitual'
connotes some degree of frequency and
continuity.

12. The word 'habit' has a clear
well understood meaning being nearly the
same as 'accustomed' and cannot be
applied to single act. When we speak of
habit of a person, we prefer to his
customary conduct to pursue, which he has
acquired
a
tendency
from
frequent
repetitions. In B.N. Singh V. State of U.P.
AI.R. 1960-Allahabad 754 it was observed
that it would be incorrect to say that a
person has a habit of anything from a
single
act.
In
the
Law Lexicon
?
Encyclopedic Law Dictionary, 1997 Ed. by
P.
Ramanatha Aiyer,
the
expression
'habitual' has been defined to mean as
constant, customary and addicted to a
specified habit; formed or acquired by or
resulting from habit; frequent use or
custom formed by repeated impressions.
10 All. Faheem Vs. State of U.P. & Ors.
559
The term 'habitual criminal', it is stated
may be applied to any one, who has been
previously more than twice convicted of
crime, sentenced and committed to prison.
The word 'habit' means persistence in
doing an act, a fact, which is capable of
proof
by
adducing
evidence
of
the
commission of a number of similar acts.
'Habitually' must be taken to mean
repeatedly or persistently. It does not refer
to frequency of the occasions but rather to
the invariability of the practice.

13. The expression 'habitual
criminal' is the same thing as the 'habitual
offender' within the meaning of section 110
of the Code of Criminal Procedure, 1973.
This preventive Section deals for requiring
security for good behavior from 'habitual
offenders'. The expression 'habitually' in
the aforesaid section has been used in the
sense
of
depravity
of
character
as
evidenced
by
frequent
repetition
or
commission of offence. It means repetition
or persistency in doing an act and not an
inclination by nature, that is, commission
of same acts in the past and readiness to
commit them again where there is an
opportunity.

14. Expressions like 'by habit'
'habitual'
'desperate'
'dangerous'
and
'hazardous' cannot be flung in the face of a
man with laxity or semantics. The court
must insist on specificity of facts and a
consistent course of conduct convincingly
enough to draw the rigorous inference that
by confirmed habit, the petitioner is sure to
commit the offence if not externed or say
directed to take himself out of the district. It
is not a case where the petitioner has ever
involved himself in committing the crime or
has adopted crime as his profession. There is
not even faint or feeble material against the
petitioner that he is a person of a criminal
propensity. The case of the petitioner does
not come in either of the clauses of Section 2
(b) of the Act, which defines the expression
'Goonda'. Therefore, to outright label bona
fide student as 'goonda' was not only
arbitrary capricious and unjustified but also
counter productive. A bona fide student who
is pursing his studies in the Post Graduate
course and has never seen the world of the
criminals is now being forced to enter the
arena. The intention of the Act is to afford
protection to the public against hardened or
habitual criminals or bullies or dangerous
or desperate class who menace the security
of a person or of property. The order of
externment under the Act is required to be
passed against persons who cannot readily
be brought under the ordinary penal law and
who for personal reasons cannot be
convicted for the offences said to have been
committed by them. The legislation is
preventive and not punitive. Its sole purpose
is to protect the citizens from the habitual
criminals and to secure future good
behavior and not to punish the innocent
students. The Act is a powerful tool for the
control and suppression of the 'Goondas'; it
should be used very sparingly in very clear
cases of 'public disorder' or for the
maintenance of 'public order'. If the
provisions of the Act are recklessly used
without adopting caution and desecretion, it
may easily become an engine of operession.
Its provisions are not intended to secure
indirectly a conviction in case where a
prosecution for a substantial offence is likely
to fail. Similarly the Act should not obviously
be used against mere innocent people or to
march over the opponents who are taking
recourse to democratic process to get their
certain demands fulfilled or to wreck the
private vengeance."

(Emphasis supplied by us)

18. In the case of Suresh Tewari Vs.
State of U.P. and others, reported in
2018 (5) ALJ 1, a Division Bench of this
560 INDIAN LAW REPORTS ALLAHABAD SERIES
Court considered the judgment of Hon'ble
Supreme Court in the case of Vijay Narain
Singh Vs. State of Bihar, 1984 (3) SCC
14 and a Full Bench judgement of this
Court in Bhim Sain Tyagi's case as well as
provisions of Section 2(b) of the Act and
held as under:

"The Hon'ble Apex Court in the
case of Vijay Narain Singh versus State of
Bihar and others (1984) 3 SCC 14 has been
pleased to hold that it is essential to refer
to at least two incidents of commission of
crime for applicability of Clause (i) of
section 2(b) of the Act. Since there is
reference of one incident only in the
notice,
it
falls
short
of
the
legal
requirement as provided in Clause (i) of
section 2(b) and in this way the notice
being illegal could be challenged before
this Court as laid down by the Full Bench
of this Court in the case of Bhim Sain Tyagi
v. State of U.P. And others 1999 (39) ACC
321. If there had been reference of two or
more incidents in the impugned notice,
then the minimum legal requirement of
section, 2(b) Clause (i) would have been
satisfied, and then in that case sufficiency
of the material on merits could not be
challenged before this Court, but before
the authority concerned as laid down in the
Division Bench ruling in the case of
Jaindendra @ Chhotu Singh Versus State
of U.P. (supra). But since the impugned
notice in the present case is short of the
legal requirement, it could be challenged in
this Court. The observations in para 12 of
the ruling in the case of Jaindendra (supra)
which have been quoted above, also
support this conclusion."

(Emphasis supplied by us)

19. In a recent judgment dated
03.02.2021 in Criminal Misc. Writ Petition
No. - 347 of 2021 (Rahul Yadav vs. State
Of U.P. And 2 Others), a Division Bench of
this Court has observed as under:

"Learned A.G.A. is also not in a
position to dispute the legal position that for
bringing a person under the clutches of the
Act,
he
should
be
a
habitual
criminal/offender and a single or sporadic
incident would not bring him within the
purview of the Act."

20. Thus, a person is termed as
"Goonda" if he is a habitual criminal. The
word "habitually" means "repeatedly" or
"persistently". It implies
a thread of
continuity stringing together similar repetitive
acts to justify an inference of "habitual".
Frequent commission of acts or omissions of
the same kind referred to in sub-Section 2(b)
of the Act, 1970 or an aggregate of similar
acts or omissions would bring a person within
the definition of the word "Goonda" under
Section 2(b) of the Act, 1970. Therefore, a
single act of an accused constituting a
criminal case, cannot bring him within the
meaning of the definition of the word
"Goonda" under Act, 1970. To bring him
within the definition of the word "Goonda",
he must be a habitual criminal or/ habitual
offender. A notice issued with reference to
only one incident, falls short of legal
requirement as provided in Clause (i) of
Section 2(b) and thus, the authority issuing
such notice would be acting without
jurisdiction. Such a notice being illegal, may
be challenged before this court. If there had
been reference to two or more incidents in an
impugned notice, then the minimum legal
requirement of Section 2(b)(i), would be
satisfied and then in that case, sufficiency of
the material on merit may be challenged
before the authority concerned.

21. The definition of "Goonda" under
the Act, 1970 clearly reveals that a person
10 All. Sardar Garneet Singh & Anr. Vs. Smt. Raj Katyal
561
may be said to be "Goonda", if he is
habitual in committing crime. An accused
in a criminal case arising out of
matrimonial dispute does not indicate
that such a person, is a habitual
offender. Thus the notices issued by
respondent no. 2 to the petitioners were
wholly without jurisdiction and a glaring
example of abuse of power. It is only after
we passed the orders dated 17.8.2021
and 18.8.2021, the respondent no. 2
withdrawn the impugned notices by
orders dated 21.08.2021 to escape from
the consequences of his illegal and
unauthorized action.

22. However the question still
remains as to whether the respondents
may escape from their responsibilities
for acting arbitrarily, illegally and
unauthorisely ? In our view they cannot
escape from the consequences. The officer
who unauthorisely, illegally and without
jurisdiction issued the impugned show
cause
notices
caused
harassment,
compelling the petitioners to file the
present writ petitions incurring expenses.

23. Therefore, considering the facts
and circumstances of the case, in its
entirety, we dispose of all the above noted
three writ petitions with costs of Rs.
10,000/- (ten thousand) awarded to each
petitioners. It is made clear that each
petitioner shall get cost of Rs. 10,000/- (ten
thousand), which shall be paid by the
respondents within six weeks from today.
----------
(2021)10ILR A561
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.
Matters Under Article - 227 No. 3268 of
2020 (Civil)

Sardar Garneet Singh & Anr. ...Petitioners
Versus
Smt. Raj Katyal ...Respondent

Counsel for the Petitioners:
Sri Mohd. Aqueel Khan, Sri Chandra Bhan
Gupta

Counsel for the Respondent:
Sri C.M. Rai

Order declaring vacancy and rejecting a
review of vacancy order and granting
release of demised premises-challengedshops in dispute was let out to one Sundar
Singh-who died issue less and unmarriedthereupon
application
was
made
for
declaration of deemed vacancy-objection
by
petitioners
claiming
they
carried
business jointly with the deceased-no will
executed in their favour-tenancy cannot
be bequeathed to them-further claim of
application being barred by the limitationno conclusive evidence to indicate at
what point of time Petitioners came to
occupy the shops-impugned orders are
flawless.

Held, This Court must also remark that the RC
& EO has very validly taken note of the fact that
there is not a solitary rent receipt placed on
record to show that the petitioners ever paid
rent for the shops in dispute to the respondentlandlady. This Court also finds that there is no
material to show that at any stage in point of
time, the petitioners paid rent to whoever was
the landlord for the time being. Until his death,
it was Sardar Sundar Singh alone who was the
lawful and recorded tenant of the shops in
dispute. His heirs entitled to inherit having not
come forward to claim it, the finding of a
vacancy must logically follow. If the petitioners'
occupation at some point of time after Sardar
Sundar Singh fell ill is to be taken note of, where
they claim to carrying of business separately in
the two shops, the finding of deemed vacancy is
inescapable, as the petitioners are not members
of Sardar Sundar Singh's family.(para 35).