# Kailash Jaiswal v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 994
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-14
- **Case number:** Crl. Misc. Writ Petition No. 10241 of 2019
- **Bench:** Suneet Kumar, Syed Waiz Mian
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-jaiswal-v-state-of-u-p-ors-47950
- **Pages:** 7

## Headnote

(A) Criminal Law - The Uttar Pradesh
Control of Goondas Act, 1970 - Section 3,
The U.P. Control of Goondas Rules, 1970 -
Rule 4 - 'Goonda' - on one stray incident
only petitioner could not be deemed to be
habitual offender on the basis of that
single incident - one cannot be treated to
be a habitual offender unless and until
there is recurrence of offences. (Para -
16)

Malicious proceedings initiated against petitioner
- by-pass civil decree - harass petitioner - to
release property in dispute - vests with
petitioner lawfully - in favour of district
administration - proceedings initiated merely on
lodging of a single case - second respondent
(District Magistrate) - no respect for rule and
law - become law unto himself -declines to
comply directions of State Government, orders
passed by trial court, High Court, as well as, the
Supreme Court - Failing to obtain property in
dispute in legal proceedings
-
second
respondent resorted to invoke U.P. Goondas
Act - against petitioner - misusing forum of
criminal administration.(Para -3, 17)

HELD:-Conduct of second respondent not
justified. Second respondent exposed himself to
civil and criminal consequences. Impugned
notice issued by District Magistrate quashed.
Cost of Rs. 5 lacs imposed upon second
respondent (District Magistrate). Direction to
inquire and initiate disciplinary enquiry against
then. (Para - 17, 18)

Writ Petition allowed. (E-7)

List of Cases cited:-

## Text

994 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority to take a fresh decision
in this regard and do the needful."

14. In the aforesaid judgment, the
relevant provisions of law has been
considered and reference of Government
Order dated 02.01.2004 has been given in
paragraphs 11 to 14 which would also
applicable in the present case.

15. Therefore, in view of what has
been considered above, we find that the
impugned F.I.R. No.451 of 20222, under
Section 2(b)(i) and 3 of Gangsters Act,
Police
Station-Pasgawan,
DistrictLakhimpur is liable to be quashed.
Accordingly, the aforesaid F.I.R. is hereby
quashed.

16. However, since it has been
submitted by learned A.G.A. that now the
charge-sheet has been filed in the case
crime number in question against the
present petitioner, as such, we hereby
giving liberty to the competent authority to
take a fresh decision in this regard and do
the needful.

17. Accordingly, the writ petition is
allowed.

18. No order as to cost.
----------
(2022) 11 ILRA 994
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Crl. Misc. Writ Petition No. 10241 of 2019

Kailash Jaiswal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nipun Singh, Sri Ravindra Kumar Tripathi

Counsel for the Respondents:
G.A.

(A) Criminal Law - The Uttar Pradesh
Control of Goondas Act, 1970 - Section 3,
The U.P. Control of Goondas Rules, 1970 -
Rule 4 - 'Goonda' - on one stray incident
only petitioner could not be deemed to be
habitual offender on the basis of that
single incident - one cannot be treated to
be a habitual offender unless and until
there is recurrence of offences. (Para -
16)

Malicious proceedings initiated against petitioner
- by-pass civil decree - harass petitioner - to
release property in dispute - vests with
petitioner lawfully - in favour of district
administration - proceedings initiated merely on
lodging of a single case - second respondent
(District Magistrate) - no respect for rule and
law - become law unto himself -declines to
comply directions of State Government, orders
passed by trial court, High Court, as well as, the
Supreme Court - Failing to obtain property in
dispute in legal proceedings
-
second
respondent resorted to invoke U.P. Goondas
Act - against petitioner - misusing forum of
criminal administration.(Para -3, 17)

HELD:-Conduct of second respondent not
justified. Second respondent exposed himself to
civil and criminal consequences. Impugned
notice issued by District Magistrate quashed.
Cost of Rs. 5 lacs imposed upon second
respondent (District Magistrate). Direction to
inquire and initiate disciplinary enquiry against
then. (Para - 17, 18)

Writ Petition allowed. (E-7)

List of Cases cited:-

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

2. Ramji Pandey Vs St. of U.P. & ors., 1981 SCC
Online All 305
11 All. Kailash Jaiswal Vs. State of U.P. & Ors.
995
3. Bhim Sain Tyagi Vs The St. of U.P. & ors.,
1999 SC Online All 1403

(Delivered by Hon'ble Suneet Kumar, J. &
Hon'ble Syed Waiz Mian, J.)

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
996 INDIAN LAW REPORTS ALLAHABAD SERIES
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 the said property. It
appears that thereafter, the Tax Advocate
Association filed an objection under Order
XXI Rule 97 C.P.C. before the trial court
which came to be rejected vide order dated
25 September 2010. The matter was carried
in civil revision and the revisional court
dismissed the revision on 23 October 2010.
Aggrieved, Association approached this
Court in Writ-C No. 65183 of 2010 (Tax
Advocate Association and another Versus
State of U.P. and others). This Court vide
order dated 2 November 2010, dismissed
the writ petition. The operative portion of
the order reads thus:

In this view of the matter, even if the
petitioners are licensee of the tenant, they
are bound by the decree notwithstanding
the fact that they were not impleaded in the
suit for ejectment. Also there is nothing on
record to show that any allotment etc. was
made in favour of the petitioners. In
absence of any title to the property in
dispute, the Courts below have rightly
rejected the objections filed under Order
21 Rule 97 C.P.C.

It has come on record that the Sales
Tax Office has been shifted elsewhere. It
follows that there is no Sales Tax Office
presently on the spot. In this fact situation,
the petitioners are unnecessarily keeping in
their possession the disputed property. The
object and purpose, if any, to grant a
license to them has come to an end due to
shifting of the Sales Tax Office.

The petitioners claim themselves that
they are lawyers. If that is so, they should
abide by law and follow the law and not to
commit its breach. It is hoped that goodsense will prevail upon them.

There is no merit in the petition. The
petition lacks merit and it is dismissed."

6. Aggrieved, Association carried the
matter in appeal before the Hon'ble
Supreme Court which came to be dismissed
vide order dated 13 December 2010.

7. It appears that thereafter the
petitioner started making construction on
the property which was being objected by
the
District
authorities.
Aggrieved,
petitioner approached this Court in Writ-C
No. 17431 of 2015 (Kailash Jaiswal Versus
State of U.P. and others). This Court after
recording the history of the litigation, inter
se, parties restrained the City Magistrate to
interfere with the peaceful possession of
the property and quashed the order of the
City Magistrate, restraining the petitioner
from raising construction. The operative
portion of the order reads thus:

"In such circumstances, the impugned
order dated 14 September 2015 passed by
the City Magistrate cannot be sustained. It
11 All. Kailash Jaiswal Vs. State of U.P. & Ors.
997
is, accordingly, set aside. A direction is
issued
to
the
District
Magistrate,
Gorakhpur
as
also
the
Senior
Superintendent of Police, Gorakhpur to
ensure that no hindrance is caused in the
raising of constructions by the petitioner if
they are in accordance with the plan
sanctioned by the Gorakhpur Development
Authority.

The writ petition is, accordingly,
allowed."

8. It appears that the District
administration was not satisfied that the
petitioner
had
obtained/purchased
the
property in dispute which is on prime
location, District Magistrate instituted a
suit being Suit No. 259 of 2002 for
cancellation of freehold deed dated 24/25
September 1999 (State of U.P. through
Collector,
Gorakhpur
Versus
Kailash
Jaiswal and others). During pendency of
the suit, F.I.R. being case Crime No. 212 of
2019, under sections 189, 332, 504, 506
I.P.C. came to be lodged at Police Station
Cantt. District Gorakhpur by Deputy
Commissioner (Administration) Trade Tax
Department Gorakhpur, alleging that after
recording his statement in the court while
returning,
petitioner
threatened
him.
Petitioner approached this Court by filing
Misc. Writ Petition No. 7526 of 2019,
seeking quashing of the first information
report. This Court granted protection to the
petitioner till the submission of the charge
sheet under Section 173(2) of Cr.P.C. vide
order
dated
28
March
2019.
After
investigation, police report (charge sheet)
came to be submitted in the aforenoted
Case Crime No. 212 of 2019 against the
petitioner. The charge sheet and entire
proceeding was subjected to challenge by
the
petitioner
in
an
petition
being
Application No. 26502 of 2019 filed under
Section 482 Cr.P.C., wherein, this Court
vide order dated 9 July 2019, directed that
no coercive action shall be taken against
the petitioner. It is further asserted in
paragraph 54 of the writ petition that on 10
April 2019, at about 10.00 in the night, 1012 police officials in uniform, alongwith 67 officers in plain dress, visited the house
of the petitioner. On enquiry, it is alleged
that they started abusing the petitioner and
threatened him to come out from the house
otherwise they would kill him in a fake
encounter. It is further alleged that the
petitioner's daughter was present at the
relevant time and informed the police
officials that they are restrained from
adopting coercive measure against the
petitioner. It is submitted that the presence
of the officers has been recorded in CCTV
camera.

9. In the counter affidavit filed on
behalf of the second respondent, District
Magistrate, Gorakhpur, the contents of
paragraphs 54 and 55 have been denied,
but, in paragraph no. 35, it has been stated
that the proceedings initiated against the
petitioner is just and proper which does not
suffer from any illegality, infirmity or
defect. On the very next day of the above
noted incident i.e. 11 April 2019, the
impugned notice under Section 3⁄4 of U.P.
Goondas Act was issued to the petitioner.

10. In this backdrop, it is relevant to
take notice of the communication dated 9
May 2003, issued by the Special Secretary,
Government of U.P. addressed to the
second respondent, District Magistrate,
Gorakhpur, wherein, the State directed the
District Magistrate to withdraw the suit
instituted on behalf of the State against the
petitioner regarding cancellation of free
hold deed. In response, District Magistrate,
vide communication dated 2 June 2006,
addressed
to
the
Deputy
Secretary,
998 INDIAN LAW REPORTS ALLAHABAD SERIES
Government of U.P. sought recall of the
aforenoted
direction.
The
Special
Secretary,
Government
of
U.P.
vide
communication dated 28 February 2006,
addressed to the Principal Secretary, Tax
and Registration, stated that the direction
issued by the State Government to
withdraw the suit, is legal and requires no
reconsideration.
Thereafter,
State
Government vide communication dated 2
June 2006, addressed to the District
Magistrate conveyed that the recall of the
earlier State Government order to withdraw
the suit filed against the petitioner being
lawful and proper cannot be reconsidered.
Despite the communication of the State
Government, the suit has not been
withdrawn by the District Magistrate.

11. In this backdrop, it is submitted
that the notice under the U.P. Goondas Act
is not only malicious but misuse of the
power vested upon the District Magistrate,
the proceedings have been initiated in
colourable exercise of power to coerce the
petitioner to vacate the premises which
admittedly does not vest with the State.
Further, it is submitted that on a single
case, proceedings under the U.P. Goondas
Act cannot be initiated as the petitioner is
not a habitual offender.

12. Reliance has been placed on the
decision of this Court rendered in Suresh
Tewari Versus State of U.P. and others,
2018 (5) ALJ 1.

13. In the counter affidavit, there is no
specific denial of the assertions made in the
writ petition and the legal issues raised by
the petitioner. It is also not the case of the
respondent authorities that the reputation of
the
petitioner
is
dangerous
to
the
community. The undisputed facts reflect
high handedness and gross misuse of the
power by the District Magistrate. The
conduct of the District Magistrate in not
complying the repeated orders of the State
Government to withdraw the suit against
the
petitioner
tantamounts
to
gross
indiscipline and insubordination.

14. Learned counsel for the petitioner
submits that impugned notice is not in
conformity with the Rule 4 of the U.P.
Control of Goondas Rules, 1970. He
further submits that Section 3 of the
U.P.Control
of
Goondas
Act,
1970
(hereinafter to be referred to as the "Act")
confers powers on the concerned District
Magistrate to extern anyone, who is the
Goonda outside the district or to place
restriction on his movement. If the District
Magistrate is satisfied that the matters set
forth in clauses (a), (b) and (c) of subSection (1) of the Goondas Act are made
out he may issue notice to the Goonda
informing him of the general nature of
material allegations against him in clause
(d) of the Act. He further submits that in
the instant case clause (d) mentions about
the only case registered against the
petitioner being Case Crime No. 212 of
2019, thus the second respondent has
mechanically noted the case pending
against the petitioner in the prescribed
proforma without applying its mind, as well
as, without recording satisfaction about the
matter set out in clauses (a), (b) and (c) of
Act. Learned counsel for the petitioner has
placed reliance upon paragraph no.5 of the
Full Bench decision of this Court rendered
in the matter of Ramji Pandey Vs. State of
Uttar Pradesh and others, 1981 SCC
Online All 305, which reads as under:-

"Now coming to the provisions of the
Act, it would be seen that Section 3 confers
power on the District Magistrate to extern
any one who is a Goonda outside the
11 All. Kailash Jaiswal Vs. State of U.P. & Ors.
999
district or to place restrictions on his
movement. If the District Magistrate is
satisfied that the matters set forth in
Clauses (a), (b) and (c) of Sub-section (1)
are made out he may issue notice to the
Goonda informing him of the "general
nature of material allegations" against him
in respect of those matters. The District
Magistrate is further required to give him
reasonable opportunity of tendering his
explanation regarding those matters. The
notice issued by the District Magistrate
must contain the general nature of material
allegations on the baggies of which the
District Magistrate may have formed his
opinion under Section 3(1) of the Act. In
the absence of material allegations the
person to whom notice is issued will be
denied opportunity of explanation. It is
therefore, mandatory to set out the general
nature of material allegations in the notice
issued under Section 3(1) of the Act. If the
notice fails to contain the general nature of
material allegations it would be vitiated
and the proceedings taken in pursuance
thereof would be rendered null and void.
We are in agreement on this question with
the view taken by the Division Bench in
Harsh Narain's case 1972 All LJ 762."

15. This Court in Bhim Sain Tyagi
Vs. The State of U.P. and others, 1999
SC Online All 1403, observed as under:-

"22. Before concluding this matter it
may be useful to mention that the right of
the petitioners to offer explanation would
have
to
depend
upon
the
material
allegations consequently, the reasonable
opportunity which is afforded by subSection (2) of producing his evidence in
support of his explanation, which is
guaranteed to the petitioner shall not be
exercisable if the petitioner does not come
to know the general nature of allegations
against them."

16. The Division Bench of this Court
in Suresh Tewari (supra), held relying
upon the Supreme Court judgment that on
one stray incident only petitioner could not
be deemed to be habitual offender on the
basis of that single incident. Para nos. 19
and 23 reads thus:

19...........The
requirement
of
applicability of the clause (i) is that
Goonda means that 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
offences punishable referred to in the said
clause. In the impugned show cause notice
there is a description of only one criminal
case against the petitioner, while as per the
definition and the law settled by this Court
as well by the Hon'ble Apex Court, one
cannot be treated to be a habitual offender
unless and until there is recurrence of
offences. Since there is a reference of one
stray incident only in the notice, the
petitioner could not be deemed to be a
habitual offender on the basis of that single
incident only and so the notice fails to
satisfy the legal requirement.

23. 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
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
of Bhim Sain Tyagi v. State of U.P. And
others 1999 (39) ACC 321.

17. Having regard to the facts and
circumstance of the case, prima-facie, we
are convinced that the proceedings initiated
against the petitioner is not only malicious
but to harass the petitioner in respect of the
property in dispute which admittedly vests
with the petitioner lawfully. Further, the
conduct of the respondent, in particular, the
second respondent, District Magistrate,
Gorakhpur, clearly demonstrates that he
has no respect for the rule and law and has
become law unto himself. The second
respondent
declines
to
comply
the
directions of the State Government, the
orders passed by the trial court, High Court,
as well as, the Supreme Court. Failing to
obtain the property in dispute in legal
proceedings, the second respondent has
now resorted to invoke U.P. Goondas Act
against the petitioner misusing the forum of
criminal administration. The facts, noted
herein above, in no uncertain terms,
justifies
the
conduct
of
the
second
respondent. The second respondent has
exposed himself to civil and criminal
consequences.

18. In the circumstance, we are
constrained to quash the impugned notice
dated 11 April 2019, issued by the
District Magistrate, Gorakhpur. A cost
assessed at Rs. 5 lacs is imposed upon the
second respondent, District Magistrate,
Gorakhpur, to be deposited with the High
Court Legal Services Committee within
10 weeks from date. The first respondent
Principal Secretary (Home Department),
Government
of
U.P.,
Lucknow,
is
directed to get the matter inquired and
initiate disciplinary enquiry against the
then
delinquent
District
Magistrate,
Gorakhpur.

19. The writ petition is allowed.
----------
(2022) 11 ILRA 1000
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 8561 of 2022

Santosh Malviya & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ramesh Kumar Tiwari, Aditi Pandey

Counsel for the Respondents:
A.S.G.I., Sri Ankur Goyal, Sri Gaurav
Mahajan

Civil Law - Constitution of India,1950 -
Article 15, 16, 16(1), 16(4), 32, 226, 227,
323(a), 323(b) & 335 - Administrative
Tribunal Act, 1985 - Sections 14 & 15 -
Writ Petition - Challenging Office Memorandum
issued by Central Govt. declaring ultra vires - it
is settled law that Central Administrative
Tribunal has absolute power to hear the cases of
Central Govt. Employee including quashing of
office memorandum, rules and regulations or
declare ultra vires - accordingly writ Petition is
not maintainable - dismissed. (Para - 11, 12)

Writ Petition is dismissed. (E-11)

List of Cases cited: -

1. L. Chandra Kumar Vs U.O.I., 1997 (0)
SU.P.reme(SC) 516,

2. All India Equality Forum & ors. Vs U.O.I. &
ors. (2018 DLT 636(DB),

3. S.P. Sampath Kumar Etc Vs U.O.I. & ors.,
1987 AIR 386

(Delivered by Hon'ble Neeraj Tiwari, J.)