# Lalta Prasad Dubey v. The Director General of Police, U.P. and others

- **Citation:** (2001) 1 ILRA 284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-11-18
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalta-prasad-dubey-v-the-director-general-of-police-u-p-and-others-39616
- **Pages:** 2

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
284
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By the Court

1. This petition under Article 226 of
the
Constitution
has
been
filed
challenging the order dated 18.11.2000 of
Additional District Magistrate (Finance &
Revenue), Baghpat. The impugned order
is a very short one and it recites that the
Station House Officers of different police
stations
had
identified
mischievous/
Criminal elements. Who are likely to
create disturbance during the forthcoming
municipal elections. It further recites that
he was satisfied from the report of the
S.P. which in turn was based upon the
report of the Station House Officers that
the
petitioner
is
likely
to
create
disturbance in the forthcoming municipal
election and it was not in public interest
that he should remain within the limits of
the district. Thus holding the petitioner to
be a "goonda" he was externed from the
limits of district Baghpat for a period of
one month. Though the order does not
mention anywhere that the proceedings
were drawn under U.P. Control of
Goondas Act,1970 but on the top of the
order it is mentioned as "case no.255
under section 3⁄4 Goonda Act State Versus
Irfan."

2. We have heard learned counsel
for the petitioner, learned A.G.A. for the
State and have perused the record.

3. It is specifically averred in para 5
of the writ petition that the order has been
passed without issuing any notice and
without
giving
any
opportunity
of
hearing. If the proceedings were initiated
under U.P. Control of Goondas Act
(hereinafter referred to as the Act), it was
1All] Lalta Prasad Dubey V. The Director General of Police, U.P. and others
285
obligatory to issue notice to the petitioner
under sub-section (1) of section 3 of the
Act informing him of the general nature
of the material allegations against him and
giving him a reasonable opportunity of
tendering an explanation regarding them.
The averments in the writ petition and
also the contents of the order clearly show
that no notice was issued to the petitioner
and he was not afforded any opportunity
of tendering an explanation. 'Goonda' has
been defined in sub-section (b) of section
2 of the Act. There is no finding that the
petitioner comes within the expression
'Goonda' as provided under the Act. No
proceeding under the Act can be initiated
against a person simply on the basis of a
report by the S.H.O. that he is likely to
create disturbance in the election. The
power under the Act can be exercised on
the basis of objective consideration of
evidence and material and no on the basis
of a report made by S.H.O. which itself is
based upon his subjective satisfaction.
Therefore, the impugned order is not only
illegal
but
also
wholly
without
jurisdiction and cannot be sustained at all.

4. Learned A.G.A. has submitted
that against an externment order passed
under sub-section (3) of section 3 of the
Act, an appeal lies to the Commissioner
under section 6 and, therefore, this writ
petition is liable to be dismissed on the
ground
of
alternative
remedy.
The
principle requiring exhaustion of statutory
remedies before the writ will be granted is
a rule of convenience, discretion and
policy and not a rule of law. There are
also exceptions to such a principle. If the
authority against whom the writ is sought
is shown to have had no jurisdiction or
had
purported
to
usurp
jurisdiction
without any legal foundation, a writ can
be
issued
in
an
appropriate
case.
Similarly, if the order impugned violates
the fundamental right or if the same has
been passed in violation of principles of
natural justice, this Court will not hesitate
to entertain a writ petition. In the present
case, the impugned order has been passed
in complete violation of principles of
natural justice and also in complete
violation of the procedure prescribed
under the Act. The A.D.M. seems to have
been in complete misapprehension about
his authority and was dealing with the
case as if it related to a matter pertaining
to preventive detention where the order
can
be
passed
on
the
subjective
satisfaction of the detaining authority. In
our opinion this is a most appropriate case
where this Court must interfere and
exercise its power under Article 226 of
the Constitution.

5. In the result, the writ petition
succeeds and is hereby allowed. The
impugned order dated 18.11.2000 of
Additional District Magistrate (Finance &
Revenue),
Baghpat,
externing
the
petitioner from the limits of the district is
quashed.

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