# Housing Board v. Ramesh Kumar Singh and

- **Citation:** High Court of Judicature at Allahabad #39640
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/housing-board-v-ramesh-kumar-singh-and-39640
- **Pages:** 8

## Text

1ALL] Imran alias Abdul Quddus Khan V. State of U.P. and others
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By the Court

1. The neat point for determination in the
present writ petition under Article 226 of the
Constitution is whether a bona fide student of
Master of Arts can be dubbed as 'Goonda'
primarily for the reason that he adopted an
agitational approach to espouse the cause of
the students of the college with a view to get
the memorandum of their demand accepted by
the college authorities. The thumb nail sketch
of the case is as follows:

2. Imram alias Abdul Quddus Khan, a
student of Master of Arts in Bundelkhand
College, Jhansi has been issued a show cause
notice by Sri Bhagwat Prasad Misra, District
Magistrate Jhansi under the provisions of
Section 3 of the U.P. Control of Goondas Act,
1970 (Act No. VIII of 1971) (hereinafter
referred to as 'the Act') case no. 65 of 1999.
This show cause notice has been challenged
on the ground that it has been issued by the
District
Magistrate
on
insufficient
and
perfunctory material and there has been total
non-application of mind to the stringent
provisions of law and since the notice has
been issued in an arbitrary, perfunctory and
cursory manner to repress the legitimate
demands of the students, it may be quashed.

3. The learned A.G.A. took notice on
behalf of the District Magistrate/State and
vehemently urged that a writ petition against a
'show cause notice' is not maintainable. The
submission was repelled and appears to be
against the well established legal position.

4. Normally, a writ petition against a show
cause notice is not maintainable as has been
held in Executive Engineer, Bihar State
Housing Board Vs. Ramesh Kumar Singh and
others (A.I.R. 1996 SC-691) wherein, the
apex
court
was
concerned
with
the
entertainment of the writ petition against a
show cause notice issued by the competent
authority. In that case there was no attack
against the vires of the statutory provisions
governing the matter and no question of
infringement
of
any
fundamental
right
guaranteed by the Constitution was alleged or
proved. It could also not be said in that case
that the notice was ex facie 'nullity' or totally
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
2
'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, was totally unauthorized. In
the backdrop of these facts, the apex court
observed as follows :-

" .........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 alternative 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."

5. Learned counsel for the petitioner urged
that in view of the law laid down by a full
Bench decision of this Court in Bhim Singh
Tyagi V. State of U.P. - 1999 U.P. Criminal
Rullings-417, in which the earlier decision of
this court in Ramji Pandey V. State of U.P.
and others (1982) U.P. Cr. R 1 (F.B.) has been
relied upon and approved and in the light of
the observations of the apex court in the case
of Whirlpool Corporation V. Registrar of
Trade Marks, Mumbai and others 1998) SCC1, alternative remedy does not affect the
jurisdiction of the High Court under Article
226 of the Constitution of India, the present
writ petition is maintainable.

6. We have heard Sri S.P. Sharma, learned
counsel for the petitioner as well as Sri
Mahendra Pratap, Additional Government
Advocate at some length. Since purely a legal
question is involved in the present case, we
propose to decide the writ petition finally at
this stage. The scanning of this question does
not call for any further material.

7. The crucial point for consideration in
the present case is whether in the light of the
facts and circumstances, as mentioned in the
show cause notice, a copy of which is
Annexure 6 to the writ petition, the District
Magistrate was justified in labelling the
petitioner as Goonda and clamping upon him
with a notice.

8. Before taking up the legal question it
would be advantageous to advert to the
definition of 'Goonda' as contained in Section
2 (b) of the Act, which is as follows :-

"2. Definitions : ..........
(a)......................
(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, or 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;
1ALL] Imran alias Abdul Quddus Khan V. State of U.P. and others
3

Explanation: 'Tout' means a person who-

(a)
accepts or obtains, or agrees to
accepts or attempts to obtains, or agrees to
accept or attempts to obtain from any person
for himself : or for any other person, any
gratification whatever as a motive or reward
for inducing, by corrupt or illegal means any
public servant or member of Government,
Parliament or of State Legislature, to do or
forbear to do anything or to show favour or
disfavour to any person or to render or
attempt to render any service or disservice to
any person, with the Central or State
Government, Parliament or State Legislature,
any local authority, corporation, Government
Company or public servant: or

(b)
procures in consideration of any
remuneration
moving
from
any
legal
practitioner interested in any legal business or
proposes to any legal practitioner or to any
person interested in legal business to procure,
in consideration of any remuneration moving
from either of them, the employment of legal
practitioner in such business; or

(c)
for the purposes mentioned in
explanation (a) or (b), frequents the precincts
of civil, criminal or revenue courts, revenue or
other
offices,
residential
colonies
or
residences or vicinity of the aforesaid or
railway or bus stations, landing stages,
lodging places or other places of public resort;
or

(vii) is house-grabber.

Explanation- 'House -grabber' means a
person who takes or attempts to take or aids or
abets in taking unauthorized possession or
having lawfully entered unlawfully remains in
possession, of a building including land,
garden, garages or out-houses appurtenant to a
building."

9. The preamble to the Act gives a clue to
the intention which impelled the law makers
to enact the legislation. It makes it clear that
the Act was brought on the Statute book with
a view to make special provisions for the
control and suppression of Goondas with a
view to the maintenance of 'public order'. A
bare reading of the various provisions of the
Act makes it clear that there are two prerequisites which are required to be fulfilled
before issuing a show cause notice under
Section 3 of the Act, firstly, a person should
fall within the definition of the expression
'Goonda' and secondly, it is necessary to
control and suppress him with a view to the
maintenance of 'public order. If either of the
two prerequisites are missing, the District
Magistrate shall not be entitled to initiate
action under the Act.

10. Let us now take up the first point
whether the petitioner answers the description
of a 'Goonda' as defined in Section 2 (b) of
the Act. For this purpose, it would be
necessary to wade through the recitations, or
say the grounds as unfolded from the
impugned show cause notice issued by the
District Magistrate. Rendered in English, in
the prefatory clause of the notice, it has been
substantially mentioned as follows:

"......Sri Imram son of Mohd. Aslam
resident of ............district Jhansi, who
normally
resides
in
Mohalla.........is
a
'Goonda' meaning thereby, he is habituated to
commit crimes covered by Chapters XVI,
XVII and XXII of the Indian penal Code and
that he has acquired the general reputation of
being desperate criminal, dangerous person to
the society."

A sweeping allegation has come to be made in
the second clause that the activities of the
petitioner in district Jhansi are such that he
causes damage to the person and property of
the citizens and criminally intimidates, insults,
and annoys them or plans to commit the
aforesaid crimes and there is reason to
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
4
believe that the petitioner is engaged in
committing the offences punishable under
Chapters XVI, XVII and XXII of the Code.

In the third clause, it is mentioned that in
respect of the above allegations no person is
prepared or comes forward to stand as a
witness against the petitioner on account of
fear of hurt to his person and damage to his
property. A mention has been made with
regard to the two incidents-firstly, dated
14.10.1999 about which Sub Inspector Ved
Ram had submitted a beat information that on
account of enhancement in the amount of fee,
the petitioner and his companion incited
students, attempted to disturb the peace and
tranquility in the college campus and being
over-awed, the Principal, Professors and
clerical staff of the college are feeling unsafe
and insecure; secondly, Constable Mani Ram,
while he was on patrol duty on 23.10.1999,
registered
a
beat
information
that
the
petitioner
along
with
his
companion
assembled in front of the gate of the college
and were making preparations to intimidate
the Principal and Professors and to created an
atmosphere of unrest in the campus; that he
was also planning that the Principal should be
so much terrorized that he may not be in a
position to object the conduct of the unruly
crowd of students. It was further mentioned in
the notice that some unknown student had
sent an application, obviously anonymous,
addressed to the District Magistrate that on
account of criminal activities of the petitioner
and his companions, the college atmosphere
was terror-stricken and that Sri S.P. Pathak,
Principal and other Professors and Ministerial
staff were not prepared to lodge an F..I.R. or
complain against the conduct of the petitioner
or to stand as a witness against him and his
companions; that the petitioner along with his
associates tease the passing by girls in front of
the crossing of the college. On the basis of the
aforesaid allegations, the District Magistrate
required the petitioner to show cause by 18th
November,1999 as to why an order of
externment against him should not be passed
under the provisions of Section 3 (3) of the
Act.

11. A reading of the various allegations
made in the impugned notice would reveal
that all of them are vague, general and
inconcrete. On the basis of the sweeping
allegations, the petitioner has been termed as
'goonda' and has been required to show cause
as to why he should not be directed to remove
himself outside the district for a specified
period. Prior to the issuance of the impugned
notice, no case was ever registered against the
petitioner. He is not involved in any criminal
case. The petitioner is a bona fide student of
M.A.-IInd year (Politics) in the college as
would be evident from the documents brought
on record as Annexures 1 and 2. The Principal
of the college had recently issued a character
certificate dated 2.8.1999, Annexure 4 to the
writ petition. He has certified that the work,
conduct and character of the petitioner is good
and he wished him well for his future.

12. As said above, the Act was enacted
with a view to make special provision for the
control and suppression of 'Goondas' with a
view to the maintenance of 'public order'.
Unless a person is a 'goonda' with in the
meaning of Section 2 (b) of the Act, no show
cause notice can be served upon him. The
definition of the expression 'goonda' has been
extracted above. A bare reading of this
definition would indicate that a person before
he is termed as a 'goonda' should 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 153B or Section 294 or Chapter XV, XVII, or
XXII of the Indian Penal code or has been
convicted for an offence punishable under the
Suppression of Immoral Traffic in Women
and Girls Act 1956 or under the U.P. Excise
Act, Public Gambling Act or under certain
Sections of the Arms Act, is generally reputed
to be a person who is desperate and dangerous
to the community or has been habitually
1ALL] Imran alias Abdul Quddus Khan V. State of U.P. and others
5
passing indecent remarks or teasing women or
girls or is a tout. Except for the bald
averments made in the show cause notice
issued by the District Magistrate there is no
material, whatsoever, incorporated in the
notice to support the various grounds.

13. 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.

14. 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. 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
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
6
of the occasions but rather to the invariability
of the practice.

15. 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.

16. 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.

17. In the instant case, it appears that the
college fee was substantially enhanced; there
were certain discrepancies in the admission of
students to M.A. Previous and L.L.B. classes;
the college teachers had adopted a recalcitrant
attitude of not attending the classes regularly.
In order to curb the aforesaid maladies, and to
adopt remedial measures, the students of the
college
united
to
get
their
grievances
ventilated by preparing a demand note with
which they met the Principal of the College
on 12.10.1999 under the leadership of the
present petitioner, Rashid Khan, Yashendra
Singh Rajput, in a delegation. They have
mentioned in the demand note. Annexure 5 to
the writ petition, that in case their demands
are not fulfilled they would abstain to attend
the classes and close the fee counter and that
the students shall then be compelled to stage
dharna and demonstrations in the campus. The
demand note was signed by a body of
1ALL] Imran alias Abdul Quddus Khan V. State of U.P. and others
7
students, the number of which swelled to 65.
The students have adopted a lawful and
democratic method to get their demands
fulfilled. There is absolutely nothing on
record that the students under the leadership
of the present petitioner had committed the
acts of violence or , in any manner,
threatened, intimidate, insulted or annoyed
their Principal, Professors, and the clerical
staff. The notice itself indicates that none of
these persons have come forward to complain
against
the
petitioner
and
others. The
petitioner cannot be expected to have such a
monstrous capacity as to manoeuver that the
Principal of the college and other Professors
and Lecturers would submit to his criminal
acts without any demur or objections. There is
also no material on record to indicate that
there has occasioned a 'public disorder' and
for the maintenance of which it was necessary
to brand the petitioner as; Goonda' and to
initiate action against him for his externment.
The nature of the menace posed by the
petitioner would have been the determinative
factor in the case.

18. Our Constitution does not give a carte
blench to any organ of the State to be the sole
arbiter in the matter of maintenance of
security and public order. It would be too
perilous a proposition to say that the District
Magistrate was the sole judge of the steps
required to be taken for the maintenance of
public order. In the instant case, the District
Magistrate has blatantly transgressed the
limits of his jurisdiction and has issued a
show cause notice without applying his mind
to the twin aspects required to be established
before issuing a notice to a person for
externment. As said above, firstly, the person
concerned should answer the description of a
'Goonda' as defined under Section 2 (b) of
the Act and secondly, it was necessary to
control and suppress him with a view to the
maintenance of 'public order'. Unfortunately,
the District Magistrate has not taken note of
the provisions of the Act and with a view to
repress
the
legitimate activities of the
students, which may have irked the School
authorities or administration, a show cause
notice wholly without jurisdiction was issued
not realizing the implications that the future
career of a bona fide student of Post Graduate
class and who has to pass out the college in
the near future would be seriously jeopardized
and marred. The show cause notice issued by
the District Magistrate not only suffers from
the infirmity of lack of jurisdiction but is
bereft of propriety. It is true, that the District
Magistrate has the responsibility to maintain
'public order' and to initiate action to control
and suppress the 'Goondas' but he is not
unbridled. His actions must have a flavour of
law and unless he has an umbrella of law to
protect his actions, this court would not
hesitate to step-in to correct and quash the
illegal, arbitrary whimsical and uncalled for
action of the District Magistrate.

19. The instance of an order and the
circumstances in which the show cause notice
have come to be issued, in the situations like
the present one, may be multiplied. More
often than not, the orders passed by the
District Magistrate are being assailed, not in
vain, before this court primarily on the ground
that the District Magistrate, without applying
the mind and observing the provisions of law,
are issuing show cause notices under the Act
in routine, casual and mechanical manner.
Before parting, therefore, it may be mentioned
that because of the litigation cropping up from
time to time due to unwarranted and illegal
steps taken by the District Magistrates
concerned
in
flagrant
violation
of
the
provisions of the Act, an endeavour has been
made above to indicate the circumstances in
which a show cause notice can be issued- to
reiterate- it can be issued only if the District
Magistrate is satisfied of the twin conditions
of the basis of the material brought before him
(1) that a person answers the descriptions of
'Goonda' as defined in Section 2 (b) of the
Act, (2) and that control and suppression of
such a 'Goonda' is necessary for the
maintenance of 'public order'- so that the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
8
District Magistrate may be cautious enough to
deal with the persons who are sought to be
externed under the Act in accordance with law
leaving no scope for unnecessary litigation.

20. In the conspectus of the above facts,
the impugned notice dated 26th October,1999
is
without
jurisdiction
and
cannot
be
sustained. It would be proper to nip the evil in
the bud. The writ petition, therefore, succeeds
and is allowed. The impugned show cause
notice dated 26th October, 1999 issued by the
District Magistrate, Jhansi- respondent no.2,
Annxure 6 to the writ petition is hereby
quashed.

21. The Registrar of this Court is directed
to ensure that a copy of this judgement is sent
to all the District Magistrates in the State with
promptitude. A copy of the judgement should
also
be
sent
to
the
Chief
Secretary,
Government of Uttar Pradesh, Schivalaya,
Lucknow, who in his turn, shall issue
necessary instructions to all concerned so that
the observation made above are faithfully
followed.

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By the Court

1. This petition under Article 226 of the
Constitution of India, has been filed by the
petitioner, who is tenant of the premises in
dispute, i.e. premises No. 2166/2, Dampier
Nagar, Mathura, which was allotted to him on
27.4.1978. The petitioner has prayed for
quashing the order dated 16.8.1980 passed by
the respondent no. 1, which is Annexure-5 to
the writ petition and order dated 20.11.1981
so far as it relates to the dismissal of the
appeal of the petitioner passed by the
respondent no. 1.

2. The brief facts, as stated by the
petitioner in the petition are that the house in
question was assessed at Rs.30/- in the year
1970. It is stated that the presumptive rent at
the time of allotment of the aforesaid building
was fixed at Rs.175/- by the Rent Control &
Eviction Officer while making allotment in
favour of the petitioner. The allegations of the
petitioner are that since the presumptive rent
was exhorbitant, therefore, the petitioner filed