# Nanhe @ Indra Kumar v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 427
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-06
- **Case number:** Criminal Misc. Writ Petition No. 6710 of 2009
- **Bench:** Amar Saran, Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanhe-indra-kumar-v-state-of-u-p-and-others-41527
- **Pages:** 6

## Headnote

Constitution of India Article 226- Writ
jurisdiction-alternative Remedy-order of
externment passed under section 3 of
U.P.
Control
of
Gunda
Act,
1970appealable under section 6 of the Act-the
commissioner has ample power to set
aside or grant stay order-challenged on
the ground the petitioner is not resident
of the territorial limit of the District in
question-held-no
avail
District
Magistrate
within
its
territorial
competence of to direct any concern
Gunda to desist from entering the said
area or contiguous district or part
thereof-where
statutory
remedy
available -writ petition not maintainable.

Held: Para 14:

Section 3 of the Act, as extracted above,
empowers the District Magistrate to
direct the concerned Goonda to remove
himself not only outside the area within
the limits of his local jurisdiction but also
from any area and any contiguous
district or districts or any part thereof.
Such removal may be directed to be
made by such route, if any, and within
such time as may be specified in the
order. It is also within the competence of
the District Magistrate to direct the
concerned
Goonda
to
desist
from
entering
the
said
area
or
such
contiguous district or districts or part
thereof until expiry of such period not
exceeding
six
months
as
may
be
specified in the order. The District
Magistrate has also power to impose
other conditions specified in sub-clauses
(I),(ii) and (iii) of clause (b) of subsection (3) in the externment order
besides
mentioning
the
aforesaid
conditions specified in clause (a) of subsection (3) of section 3 of the Act.
Neither
section
3
nor
any
other
provisions of the Act provides that the
person against whom externment order
is passed must be a resident of the
district. If it appears to the District
Magistrate that any person whether he is
a resident of the district or not is
involved in the activities referred to in
clause (b) and (c) of sub-section (1) of
section 3 of the Act in the district and is
a 'Goonda' within the meaning of section
2(b) of the Act, he may pass the
externment order of that person after
making due compliance of the provisions
of sub-section (1) and sub-section (2) of
section 3 of the Act. There is nothing to
stop a person, who is a permanent
resident of a particular district, to move
and
indulge
in
various
activities
including the activities referred to in
section 3(1) of the Act in other districts.
In that situation the District Magistrate
in whose district such activities are being
carried out, has jurisdiction to pass an
externment order under section 3(3) of
the Act against such person. In out view,
the submissions of the learned counsel
for the petitioner that the District
Magistrate, Etah and no jurisdiction on
account of the fact that petitioner was
not a resident of district Etah has no
substance.
Case law discussed:
AIR 1999 SC 22, (2005) 6 Supreme Court
Cases 499, (2003)2 SCC 107, (2004) 4
Supreme Court Cases 268, (2006) 5 S.C.C.
469, (2000) 1 UPLBEC 702.
428 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

## Text

2 All] Nanhe @ Indra Kumar V. State of U.P. and others
427
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2009

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE SHRI KANT TRIPATHI, J

Criminal Misc. Writ Petition No. 6710 of
2009

Nanhe @ Indra Kumar
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri P.C. Mishra

Counsel for the Opposite Party:
A.G.A.

Constitution of India Article 226- Writ
jurisdiction-alternative Remedy-order of
externment passed under section 3 of
U.P.
Control
of
Gunda
Act,
1970appealable under section 6 of the Act-the
commissioner has ample power to set
aside or grant stay order-challenged on
the ground the petitioner is not resident
of the territorial limit of the District in
question-held-no
avail
District
Magistrate
within
its
territorial
competence of to direct any concern
Gunda to desist from entering the said
area or contiguous district or part
thereof-where
statutory
remedy
available -writ petition not maintainable.

Held: Para 14:

Section 3 of the Act, as extracted above,
empowers the District Magistrate to
direct the concerned Goonda to remove
himself not only outside the area within
the limits of his local jurisdiction but also
from any area and any contiguous
district or districts or any part thereof.
Such removal may be directed to be
made by such route, if any, and within
such time as may be specified in the
order. It is also within the competence of
the District Magistrate to direct the
concerned
Goonda
to
desist
from
entering
the
said
area
or
such
contiguous district or districts or part
thereof until expiry of such period not
exceeding
six
months
as
may
be
specified in the order. The District
Magistrate has also power to impose
other conditions specified in sub-clauses
(I),(ii) and (iii) of clause (b) of subsection (3) in the externment order
besides
mentioning
the
aforesaid
conditions specified in clause (a) of subsection (3) of section 3 of the Act.
Neither
section
3
nor
any
other
provisions of the Act provides that the
person against whom externment order
is passed must be a resident of the
district. If it appears to the District
Magistrate that any person whether he is
a resident of the district or not is
involved in the activities referred to in
clause (b) and (c) of sub-section (1) of
section 3 of the Act in the district and is
a 'Goonda' within the meaning of section
2(b) of the Act, he may pass the
externment order of that person after
making due compliance of the provisions
of sub-section (1) and sub-section (2) of
section 3 of the Act. There is nothing to
stop a person, who is a permanent
resident of a particular district, to move
and
indulge
in
various
activities
including the activities referred to in
section 3(1) of the Act in other districts.
In that situation the District Magistrate
in whose district such activities are being
carried out, has jurisdiction to pass an
externment order under section 3(3) of
the Act against such person. In out view,
the submissions of the learned counsel
for the petitioner that the District
Magistrate, Etah and no jurisdiction on
account of the fact that petitioner was
not a resident of district Etah has no
substance.
Case law discussed:
AIR 1999 SC 22, (2005) 6 Supreme Court
Cases 499, (2003)2 SCC 107, (2004) 4
Supreme Court Cases 268, (2006) 5 S.C.C.
469, (2000) 1 UPLBEC 702.
428 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. By means of this writ petition
under Article 226 of the Constitution of
India, the petitioner has questioned the
validity of the impugned order dated
25.03.2009
passed
by
the
District
Magistrate, Etah (Annexure No. 1 to the
writ petition), whereby he has directed
externment of the petitioner from the
district Etah for a period of six months.

2.

The
learned
Additional
Government
Advocate
raised
a
preliminary
objection
regarding
maintainability of the writ petition on the
ground that section 6 of the U.P. Control
of Goondas Act, 1970, (hereinafter
referred to as the Act) provides for an
alternative efficacious remedy of appeal
against the impugned order. The learned
A.G.A.
further
submitted
that
the
petitioner instead of the approaching this
Court should have filed an appeal before
the Commissioner under section 6 of the
Act.

3. The learned counsel for the
petitioner, on the other hand, submitted
the despite there being availability of
efficacious remedy by way of appeal
under section 6 of the Act., the writ
petition
under
Article
226
of
the
Constitution of India is maintainable in
view of the fact that the District
Magistrate, Etah, had no jurisdiction to
pass the impugned order for externment
of the petitioner, as the petitioner was not
resident of district Etah but was a resident
of new district Kanshiram Nagar. The
learned counsel for the petitioner further
submitted that in view of law laid down in
Whirlpool Corporation vs. Registrar of
Trade Marks, Mumbai and others AIR
1999 SC 22, the writ petition is
maintainable.

4. In order to appreciate the
controversy raised in this case,it is
necessary to consider certain important
decisions on the subject.

5. In Whirlpool Corporation's case
(Supra) the Supreme Court has held that
under Article 226 of the Constitution, the
High Court, having regard to the facts of
the case, has a discretion to entertain a
Writ Petition. But the High Court has
imposed upon itself certain restrictions
one of which is that if an effective and
efficacious remedy is available, the High
Court would not normally exercise its
jurisdiction. But the alternative remedy
has been consistently held by this Court
not to operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement
of any of the Fundamental Rights or
where there has been a violation of the
principle of natural justice or where the
order or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged.

6. A similar view has been
expressed in the case of State of H.P.
And others vs. Gujrat Ambuja Cement
Ltd. And another (2005) 6 Supreme
Court Cases 499, in which the Supreme
Court observed after relying on few
important earlier decisions that except for
a period when Article 226 was amended
by
the
Constitution
(forty
second
Amendment) Act 1976, the power relating
to alternative remedy has been considered
to be a rule of self imposed limitation. It
is essentially a rule of policy, convenience
and discretion and never a rule of law.
Despite the existence of an alternative
2 All] Nanhe @ Indra Kumar V. State of U.P. and others
429
remedy, it is within the jurisdiction or
discretion of the High Court to grant relief
under Article 226 of the Constitution. At
the same time, it cannot be lost sight of
that though the matter relating to an
alternative remedy has nothing to do with
jurisdiction of case, normally the High
Court should not interfere if there is an
adequate efficacious alternative remedy.
Is somebody approaches the High Court
without availing the alternative remedy
provided, the High Court should ensure
that he has made out a strong case or that
there exist good grounds to invoke the
extraordinary jurisdiction.

7. In Harbanslal Sahnia vs. Indian
Oil Corpn. Ltd. (2003) 2 SCC 107, the
Supreme Court reiterated the same
principles and held that the rule of
exclusion
of
writ
jurisdiction
by
availability of alternative remedy is a rule
of discretion and not one of compulsion
and the Court must consider the pros and
cons of the case and then may interfere if
it comes to the conclusion that the
petitioner seeks enforcement of any of the
fundamental rights where there is a failure
of the principles of natural justice or
where the orders or proceedings are
wholly without jurisdiction or the vires of
an Act is challenged.

8. It is also well settled in the case of
U.P. State Bridge Corporation Ltd.
And others vs. U.P. Rajya Setu Nigam
S. Karamchari Sangh (2004) 4 Supreme
Court Cases 268 and others cases that it
would need a very strong case indeed for
the High Court to deviate from the
principle that where a specific remedy is
given by the Statute, the person who
insists upon such remedy can avail of the
process as provided in that Statute and in
no other manner.
9. In the case of A.P. Foods vs. S.
Samuel and others (2006) 5 S.C.C. 469,
the Supreme Court reiterated the same
principles and held that a writ petition
under Article 226 of the Constitution of
India should not be entertained when the
statutory remedy is available under the
Act, unless exceptional circumstances are
made out.

10. Expressing a serious concern
over the heavy arrears in this court a
Division Bench of this Court held in
Manvendra Misra (Dr.) Vs. Gorakhpur
University (2000) 1 UPLBEC 702 that
since writ jurisdiction is a discretionary
jurisdiction hence if there is an alternative
remedy the petitioner should ordinarily be
relegated to his alternative remedy. This
is specially necessary now because of the
heavy arrears in the High Court and this
Court can no longer afford the luxury of
entertaining writ petition even when there
is an alternative remedy in existence. No
doubt alternative remedy is not an
absolute bar, but ordinarily a writ petition
should not be entertained if there is an
alternative remedy.

11. In view of decisions referred to
above no writ petition under Article 226
of the Constitution should be entertained
when statutory remedy is available under
the concerned statute unless exceptional
circumstances propounded in Whirlpool's
case (supra) are made out. The petitioner's
case needs to be examined in the light of
these settled principles.

12. The learned counsel for the
petitioner conceded that the impugned
order for externment of the petitioner is
appelable before the Commissioner under
section 6 of the Act. In out view the
Commissioner has not only power to
430 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
entertain an appeal against the externment
order passed under section 3 of the Act
but has also power to confirm the order
with or without modification or set it
aside and has power even to stay the
operation of the order pending disposal of
the appeal subject to such terms as he
thinks fit. As such the remedy of appeal
provided under section 6 of the Act being
in the nature of a continuation of the
original proceedings seems to be very
comprehensive, in which the petitioner
may not only question the legality of the
impugned order on merit but may also
question the jurisdiction of the District
Magistrate
Etah
in
initiating
the
proceeding and passing the externment
order under section 3 of the Act.

13. The main contention of the
learned counsel for the petitioner in
support of the maintainability of the writ
petition was that the District Magistrate,
Etah had no jurisdiction to pass the
impugned order in view of the fact that
the petitioner is not a resident of district
Etah but is a resident of district Kashiran
Nagar. This submission seems to have no
substances. The act has been enacted to
make special provision for the control and
supersession of Goondas for the purpose
of maintaining public order. Section 3 of
the Act empowers the District Magistrate
to order for externment of Goondas. In
order to appreciate the submission of the
learned counsel for the petitioner, it is
desirable to look into the relevant
provisions of section 3 of the Act, which
reads:

"3.
Externment,
etc.
of
Goondas, (1) where it appears to the
District Magistrate-

(a) that any person is a
Goonda; and

(b) (i) that his movement or acts in
the district or any part thereof are
causing, or are calculated to cause alarm,
danger or harm to persons or property;
or

(ii)
that
there
are
reasonably
grounds
for
believing
that
he
is
engaged,or doubt to engage, in the
district or any part thereof, in the
commission of an offence referred to in
Sub-clause(i) to (iii) of Clause (b) of
Section , or in the abetment of any such
offence; and

(c) that witness are not willing to
come forwarded to give evidence against
him by reason of apprehension on their
part as regards the safety of their person
or property,

the District Magistrate shall by notice in
writing inform him of the general nature
of the material allegations against him in
respect of clause(a), (b) and (c) and give
him a reasonable opportunity of tendering
an explanation regarding them.

(2) The person against whom an
order under this section is proposed to be
made shall have the right to consult and
be defended by a counsel of his choice
and
shall
be
given
a
reasonable
opportunity of examining himself, if he so
desires, and also of examining any other
witnesses that he may wish to produc3e in
support of his explanation, unless for
reasons to be recorded in writing the
District Magistrate is of opinion that the
request is made for the purpose of
vexation or delay.

(3)
Thereupon
the
District
Magistrate on being satisfied that the
conditions specified in clauses (a)(b) and
(c) of sub-section (1) exist may by order
in writing-
2 All] Nanhe @ Indra Kumar V. State of U.P. and others
431

(a) direct him to remove himself
outside the area within the limits of his
local jurisdiction or such area and any
district or districts or any part thereof,
contiguous thereto, by such route, if any,
and within such time as may be specified
in the order and to desist from entering
the said area or the area and such
contiguous district or districts or part
thereof, as the case may be, from which
he was directed to remove himself until
the expiry of such period not exceeding
six months as may be specified in the said
order:

(b) (i) require such person to notify
his movements, or to report himself, or to
do both, in such manner, at such time and
to such authority or person as may be
specified in the order:

(ii) prohibit or restrict possession or
use by him of any such article as may be
specified in the order:

(iii) direct him otherwise to conduct
himself in such manner as may be
specified in the order.

Until the expiry of such period, not
exceeding six months as may be specified
in the order."

14. Section 3 of the Act, as extracted
above, empowers the District Magistrate
to direct the concerned Goonda to remove
himself not only outside the area within
the limits of his local jurisdiction but also
from any area and any contiguous district
or districts or any part thereof. Such
removal may be directed to be made by
such route, if any, and within such time as
may be specified in the order. It is also
within the competence of the District
Magistrate
to
direct
the
concerned
Goonda to desist from entering the said
area or such contiguous district or districts
or part thereof until expiry of such period
not exceeding six months as may be
specified in the order. The District
Magistrate has also power to impose other
conditions specified in sub-clauses (I),(ii)
and (iii) of clause (b) of sub-section (3) in
the externment order besides mentioning
the aforesaid conditions specified in
clause (a) of sub-section (3) of section 3
of the Act. Neither section 3 nor any other
provisions of the Act provides that the
person against whom externment order is
passed must be a resident of the district. If
it appears to the District Magistrate that
any person whether he is a resident of the
district or not is involved in the activities
referred to in clause (b) and (c) of subsection (1) of section 3 of the Act in the
district and is a 'Goonda' within the
meaning of section 2(b) of the Act, he
may pass the externment order of that
person after making due compliance of
the provisions of sub-section (1) and subsection (2) of section 3 of the Act. There
is nothing to stop a person, who is a
permanent resident of a particular district,
to move and indulge in various activities
including the activities referred to in
section 3(1) of the Act in other districts.
In that situation the District Magistrate in
whose district such activities are being
carried out, has jurisdiction to pass an
externment order under section 3(3) of the
Act against such person. In out view, the
submissions of the learned counsel for the
petitioner that the District Magistrate,
Etah and no jurisdiction on account of the
fact that petitioner was not a resident of
district Etah has no substance.

15. It may not be out of context to
mention that petitioner's village Patiyali
was a part of the district Etah when the
proceeding under section 3 of the Act was
432 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
initiated against him. Learned counsel for
the
petitioner
conceded
that
the
proceedings under section 3 of the Act
was pending against the petitioner before
the District Magistrate, Etah, when the
new district Kanshiram Nagar was carved
out. He further conceded that the new
district Kanshiram Nagar has been carved
out from a portion of he district Etah and
the remaining portion is still a part of the
district Etah. The show cause notice given
to petitioner under section 3(1) of the Act
was in regard to his externment from the
entire area of the district Etah including
the area that has fallen subsequently in the
new district Kanshiram Nagar. Even
assuming that the area comprising the
new district Kanshiram Nagar is no more
a part of the district Etah, the jurisdiction
of the District Magistrate, Etah, did not
cease to exist in regard to the area that
continued to be the part of the district
Etah even after formation of new district
Kanshiram Nagar. It may also be
mentioned that whenever new districts are
formed ordinarily provisions are made in
the notification to protect the pending
proceedings in the old district. The
petitioner has not filed the notification in
regard to the formation of district
Kanshiram Nagar to show as to what
provisions were made in the notification
in regard to proceedings pending before
different courts and authorities in the old
district Etah.

16. In out view, the submission of
the learned counsel for the petitioner has
not substance.

17. For the reasons stated above, the
writ petition is not maintainable and is
accordingly dismissed with costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2009

BEFORE
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No.59277 of 2005

Wakf Al Aulad Yusfia

...Petitioner
Versus
Controlling Authority/Commissioner and
others

 ...Respondents

Counsel for the Petitioner:
Sri S.K. Verma,
Sri Bhagawati Prasad,
Sri R.N. Yadav

Counsel for the Respondents:
Sri K.C. Kishan Srivastava
Sri R.N. Singh
Sri G.K. Singh
Sri V.K. Singh
Sri Prabhakar Awasthi
Sri R.N. Yadav
Sri A.K. Rai
Sri S.N. Singh
S.C.

(A) Constitution of India Art., 226-read
with Code of Civil Procedure-Order IX
Rule 9-Suit dismissed in Default-Second
Suit for same cause of action not
maintainable-once the Second Suit is
precluded by Specific provision-can not
be subjected under writ jurisdiction.

Held: Para 32 & 33

From the above decisions, it follows that
even though the provision contained in
Order IX, Rule 9 of the Code of Civil
Procedure, 1908 as such is not applicable
to the proceedings under Article 226 of
the
Constitution
of
India,
but
the
principle underlying the said provision
may be applied to the proceedings under
Article 226 of the Constitution of India.