# Prashant Tiwari @ Jammu v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-27
- **Case number:** Criminal Misc. Writ Petition No. 296 of 2022
- **Bench:** Suneet Kumar, Vikram D Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prashant-tiwari-jammu-v-state-of-u-p-ors-48422
- **Pages:** 9

## Headnote

A. Criminal Law - Constitution of India,
1950 - Article 226 - U.P. Act No. VIII of
1971-Section 3(1)-maintainability of -
petitioner subjected to a show cause
notice issued u/s 3(1) of the Act, 1971general nature of allegations have been
stated
in
the
alleged
notice-factual
foundation in general terms have been
laid down by the authority concerned in
the impugned order-the correctness of the
those allegations are not subject-matter
of enquiry before the court at this stagepetitioner has an opportunity to file an
explanation
before
the
authority
concerned-Even if an order has been
passed u/s 3(1) of the Act, the person
concerned has a right of appeal u/s 6 of
the Act, 1971.(Para 1 to 26)

B. U.P. Act No. VIII of 1971 - Section 3(1) -
authorizes the District Magistrate to issue a
notice in writing informing of the general
nature of the material allegations against
the
petitioner
in
respect
of
clauses
(a),(b),(c) of Section 3(1) of the Act,1971
and to provide a reasonable opportunity to
the petitioner for tendering an explanation
and thereafter on being satisfied pass an
order u/s 3(3) of the Act including an
externment order.(Para 8 to 10)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

4 All. Prashant Tiwari @ Jammu Vs. State of U.P. & Ors.
171
may have married one Abbas Hussain
Khun Khun but she could not prove that the
Respondent, Umesh Kumar Gupta was also
known as Abbas Hussain Khun Khun.

(b) The Revisionist could not
prove even a live-in relationship in a
separate matrimonial home, and of the
revisionist being recognized as wife of
Umesh Gupta by the public at large.

(c) There was no proof of the first
marriage having been concealed by the
Respondent before alleged marriage to the
Revisionist No.1.

(d) The photographs submitted in
original and the CD and mobile phone set
submitted by the Revisionist No.1 could
however prove familiarity to the extent of
intimacy of the Respondent with the
Revisionist No.1 and with her family
members.

(e) Hence, concubinage can be
presumed from careful examination of the
mobile phone set and Compact Disc
submitted.

38. In such a case the children, i.e. the
Revisionist No.2, 3 and 4 are entitled to
maintenance of Rs. 10,000/- per month
each from the Respondent from the date of
this
judgment
till
their
respective
marriages. The Respondent shall also be
responsible to bear all their wedding
expenses.

39. The Criminal Revision is disposed
of with such modification of the judgment
and order impugned.
----------
(2022)04ILR A171
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Criminal Misc. Writ Petition No. 296 of 2022

Prashant Tiwari @ Jammu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Narendra Deo Shukla, Sri Pankaj Kumar
Tiwari

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Constitution of India,
1950 - Article 226 - U.P. Act No. VIII of
1971-Section 3(1)-maintainability of -
petitioner subjected to a show cause
notice issued u/s 3(1) of the Act, 1971general nature of allegations have been
stated
in
the
alleged
notice-factual
foundation in general terms have been
laid down by the authority concerned in
the impugned order-the correctness of the
those allegations are not subject-matter
of enquiry before the court at this stagepetitioner has an opportunity to file an
explanation
before
the
authority
concerned-Even if an order has been
passed u/s 3(1) of the Act, the person
concerned has a right of appeal u/s 6 of
the Act, 1971.(Para 1 to 26)

B. U.P. Act No. VIII of 1971 - Section 3(1) -
authorizes the District Magistrate to issue a
notice in writing informing of the general
nature of the material allegations against
the
petitioner
in
respect
of
clauses
(a),(b),(c) of Section 3(1) of the Act,1971
and to provide a reasonable opportunity to
the petitioner for tendering an explanation
and thereafter on being satisfied pass an
order u/s 3(3) of the Act including an
externment order.(Para 8 to 10)

The writ petition is dismissed. (E-6)

List of Cases cited:
1. Bhim Sain Tyagi Vs St. of U.P. & ors. (1999)
39 ACC 321 FB
172 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Special Director Vs Mohd. Ghulam Ghouse,
(2004) 3 SCC 440

3. Pandharinath Shridhar Rangnekar Vs Commr.
of Police(1973) 1 SCC 372

(Delivered by Hon'ble Vikram D Chauhan, J.)

1. The present writ petition is filed by
the petitioner challenging the show cause
notice dated 3rd July 2020 said to be issued
by the respondent no. 2 - District
Magistrate, Jaunpur.

2. Heard learned counsel for the
petitioner and learned AGA on behalf of the
State.

3. It is submitted by the learned
counsel for the petitioner that the petitioner
has been subjected to a show notice issued
under Section 3(1) of the Uttar Pradesh
Control of Goondas Act, 1970 (U.P. Act
No. VIII of 1971). The impugned show
cause notice is illegal as the general
material allegation under Section 3(1) of
the U.P. Act No. VIII of 1971 has not been
stated in the impuned show cause notice.
Learned counsel for the petitioner has
further
relied
upon
the
Full
Bench
judgment of this Court in Bhim Sain Tyagi
Vs. State of U.P. and others, reported in
1999 (39) ACC 321 (FB) and submits that
the writ petition against the show cause
notice is maintainable as has been held by
the Full Bench of this court and as such the
impugned notice is liable to be quashed.

4. The learned AGA for the State has
raised
objection
with
regard
to
the
maintainability of the present writ petition
and has stated that in the writ petition the
prayer is made for challenging the show
cause notice whereas petitioner can always
submit a reply to the show cause notice
before the concerned authority and as such,
the writ petition is premature and is liable to
be dismissed.

5. The writ petition involves challenge
to the alleged show cause notice dated 3rd
July, 2020 said to have been issued by the
District Magistrate, Jaunpur. As per the
argument of the learned counsel for the
petitioner,
the
aforesaid
notice
being
Annexure 1 to the writ petition, is a show
cause notice issued under Section 3(1) of the
U.P. Act No. VIII of 1971. A perusal of the
impugned notice would demonstrate that
except mentioning of the criminal cases
pending against the petitioner, the general
material allegations in respect of the
petitioner has not been stated in the impugned
notice and on the strength of the aforesaid,
learned counsel for the petitioner submits that
the notice is bad in law and as such is liable
to be quashed.

6. It is to be seen that the alleged notice
dated 3rd July, 2020 is annexed as Annexure
No. 1 to the writ petition at page 17. A
perusal of the aforesaid document would
demonstrate
that
the
document
is
a
requisition issued by the Superintendent of
Police, Jaunpur and is addressed to the
District Magistrate, Jaunpur wherein the
details as to why the proceedings under
Section 3(1) of the U.P. Act No. VIII of 1971
be issued against the petitioner is stated, with
a further request to the District Magistrate,
Jaunpur to initiate proceedings under Section
3(1) of the U.P. Act No. VIII of 1971.

7. On the aforesaid requisition by the
Superintendent of Police there is an
endorsement by the District Magistrate,
Jaunpur
directing
for
registering
the
aforesaid
case
and
transferring
the
aforesaid matter before the Additional
4 All. Prashant Tiwari @ Jammu Vs. State of U.P. & Ors.
173
District Magistrate, Finance and Revenue
for disposal.

8. In the present case, the dispute
pertains to Section 3 of the U.P. Act No.
VIII of 1971 and for convenience, the same
is reproduced herein-below :-

"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 movements 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 reasonable
grounds for believing that he is engaged or
about to engage, in the district or any part
thereof, in the commission of an offence
referred to in sub-clauses (i) to (iii) of
clause (b) of Section 2, or in the abetment
of any such offence; and

(c) That witnesses not willing to
come forward 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 materials allegations against
him in respect of clauses (a), (b) and (c)
and give him a reason-able 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 witness that he
may wish to produce 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 -

(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 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 or 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 expiration of such
period, not exceeding six months as may be
specified in the order."

9. A bare perusal of Section 3 (1) of
the U.P. Act No. VIII of 1971 would
demonstrate that the aforesaid authorises
the District Magistrate to issue a notice in
writing informing of the general nature of
the
material
allegations
against
the
petitioner in respect of clauses (a), (b), (c)
and Section 3(1) of U.P. Act No. VIII of
1971
and
to
provide
a
reasonable
opportunity to the petitioner for tendering
174 INDIAN LAW REPORTS ALLAHABAD SERIES
an explanation and thereafter on being
satisfied pass an order under Section 3(3)
of the U.P. Act No. VIII of 1971 including
an externment order.

10. Under Section 15 of the U.P. Act
No. VIII of 1971, the State Government has
been authorised to make Rules for the
purpose of carrying out the provisions of
the Act. In pursuance thereof, the State
Government has notified Uttar Pradesh
Control of Goondas Rules, 1970. Under
Rule 3(1) it is provided that the action
under Section 3(1) will not ordinarily be
taken by the District Magistrate except on
the information in writing received from
the Superintendent of Police of the District
or Magistrate in-charge of the sub-division
or on information in writing received from
two respectable citizens of the locality in
which the person to be proceeded against is
ordinarily resident or is active. In this
respect,
the
Rule
3(1)
is
quoted
hereinbelow :

"3. (1) Action under sub-section
(1) of Section 3 will not ordinarily be taken
by the District Magistrate except on
information in writing received from the
Superintendent of Police of the District or
Magistrate in-charge of a sub-division or on
information in writing received from two
respectable citizens of the locality in which
the person to be proceeded against is
ordinarily resident or is active. It will not
be necessary for the District Magistrate to
disclose the identity of the informants and
particulars from which such identity can be
ascertained to the person proceeded against
but only the general nature of the material
allegations shall be intimated to such
person."

11. Rule 4 of the Uttar Pradesh
Control of Goondas Rules, 1970 further
provides that the notice to be issued under
Section 3(1) shall be, as far as, may be in
conformity with the Form I provided along
with the said Rules. It is to be seen that a
specific Form has been provided in the
Rules for initiating proceedings/show cause
notice under the U.P. Act No. VIII of 1971.
The FORM I prescribed under the Rules is
extracted herein-below :

"SCHEDULE

FORM I

Notice under Section 3 of the Uttar
Pradesh Control of Goondas Act, 1970

(See Rule 4)

Whereas it appears to me on basis of
information laid before me that-

(a)
Sri......son
of
Sri.....ordinarily
residing in.....is as "goonda", that is to say,
he either himself *or* as a member or
leader of gang, habitually commits, *or*
attempts to commit, *or* abets the
commission of offences punishable under
*Chapter XVI*, Chapter XVII or *Chapter
XXII of the Indian Penal Code* has been
convicted
under
the
Suppression
of
Immoral Traffic in Women and Girls Act,
1956/* has been convicted not less than
thrice under the U.P. Excise Act, 1910/* is
generally reputed to be a person who is
desperate and dangerous to the community;
and that

(b) his movements or acts in......are
causing or are calculated to cause alarm,
danger or harm to persons or property/*
there are reasonable grounds for believing
that he is engaged or about to engage in the
district or any part thereof, in the
commission of any offence punishable
*under Chapter XVI/* Chapter XVII/* or
Chapter XXII of the Indian Penal Code, *or
under the Suppression of Immoral Traffic
in Women and Girls Act, 1956* or under
4 All. Prashant Tiwari @ Jammu Vs. State of U.P. & Ors.
175
the U.P. Excise Act, 1910,* or in the
abetment of any such offence, and that

(c) witnesses are not willing to come
forward to give evidence against him by
reasons of apprehension on their part as
regards the safety of their person or
property ;

And whereas the material allegations
against him in respect of the aforesaid
clauses (a)/(b)/(c) are of the following
general nature :

1. .............

2. .............

3. .............

The said Sri......is hereby called upon
to appear before me on (date) at (time) in
my Court-room and if he so desires, to
tender an explanation in writing regarding
the said material allegations showing cause
why an order under sub-section (3) of
Section 3 of the Uttar Pradesh Control of
Goondas Act, 1970, may not be made
against him, also intimating me whether he
desires to examine himself of any other
witness (if so, their names and address) in
support of his explanation.

The said Sri.......is hereby informed
that if he fails to appear in aforesaid or if
no explanation or intimation is received
with the time specified it will be presumed
that Sri......has no desire to tender any
explanation/examine any witness in regard
to the said allegations and I will proceed to
pass the proposed order.

Seal of Court

District Magistrate/

Additional District Magistrate."

12. A perusal of the aforesaid would
demonstrate that under Section 3(1) it is
the District Magistrate who is authorised
to issue the show cause notice under the
U.P. Act No. VIII of 1971 and the District
Magistrate is obliged under Rules to issue
notice in FORM I giving details of the
general nature of material allegations
against the person to be proceeded with.

13. In the present case, a perusal of
the alleged impugned show cause notice,
at page 17 of the writ petition, would go to
show
that
the
aforesaid
is
information/requisition received from the
Superintendent of Police, Jaunpur by the
District
Magistrate,
Jaunpur,
for
proceeding under Section 3 of the U.P. Act
No. VIII of 1971 and on the aforesaid
information so received, the District
Magistrate has directed registration of the
same and has further transferred the matter
to the Additional District Magistrate,
Finance and Revenue, for disposal. The
aforesaid document, at page 17 of the writ
petition, is neither in FORM I as
prescribed under the Rules for issuance of
the show cause notice nor the same can be
said to be a show cause notice as it is only
an information that has been received from
the Superintendent of Police, Jaunpur to
the office of the District Magistrate,
Jaunpur for initiation of proceedings.
Under the U.P. Act No. VIII of 1971 the
aforesaid document at page 17 of the writ
petition is relatable to Rule 3(1) of the
Uttar Pradesh Control of Goondas Rules,
1970 and cannot be said to be a notice
under Section 3(1) of U.P. Act No. VIII of
1971.

14. Once the show cause notice itself
is not before this Court, it would not be
proper for this Court to exercise the writ
jurisdiction as the basic principle for
quashing any order under writ jurisdiction
is that the aforesaid order ought to have
been placed before the Court and that no
order under writ jurisdiction can be passed
without such document being brought on
record by the petitioner.
176 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In so far as the issuance of show
cause notice under Section 3(1) of the U.P.
Act No. VIII of 1971 is concerned, the
notice can be issued when the conditions
prescribed under Section 3(1) of the
aforesaid Act are fulfilled and on the basis
of the aforesaid, a notice in writing has
been issued to the person concerned
informing him of the general nature of
material allegations against him and a
reasonable opportunity of tendering an
explanation regarding the same is provided.
It is to be noted that the show cause notice
so issued by the District Magistrate under
the Act is for the purpose of calling an
explanation in order to ascertain whether
the proceedings under Section 3 of U.P. Act
No. VIII of 1971 may be proceeded with
against the person concerned or not.

16. It is to be seen that against a show
cause notice, the writ petition may be
premature as the show cause does not give
rise to any cause of action as no adverse
order which affects the right of the party is
in operation and unless the same is issued
to the person concerned, the litigant have
no right to challenge the show cause notice.
It is also the settled law that the writ
petition would lie when some right of the
party is infringed. Further, where the show
cause notice alleged to have been issued
without jurisdiction of the authority, to do
so, the writ petition would lie.

17. The Apex Court in Special
Director v. Mohd. Ghulam Ghouse,
(2004) 3 SCC 440 has deprecated the
practice of entertaining writ petition against
the show cause notice and in paragraph 5
has held

"This Court in a large number of
cases has deprecated the practice of the
High Courts entertaining writ petitions
questioning legality of the show-cause
notices stalling enquiries as proposed and
retarding investigative process to find
actual facts with the participation and in the
presence of the parties. Unless the High
Court is satisfied that the show-cause
notice was totally non est in the eye of the
law for absolute want of jurisdiction of the
authority to even investigate into facts, writ
petitions should not be entertained for the
mere asking and as a matter of routine, and
the writ petitioner should invariably be
directed to respond to the show-cause
notice and take all stands highlighted in the
writ petition. Whether the show-cause
notice was founded on any legal premises,
is a jurisdictional issue which can even be
urged by the recipient of the notice and
such issues also can be adjudicated by the
authority issuing the very notice initially,
before the aggrieved could approach the
court. Further, when the court passes an
interim order it should be careful to see that
the statutory functionaries specially and
specifically constituted for the purpose are
not denuded of powers and authority to
initially decide the matter and ensure that
ultimate relief which may or may not be
finally granted in the writ petition is not
accorded to the writ petitioner even at the
threshold
by
the
interim
protection
granted."

18. It is also to be noted that the Full
Bench decision in the case of Bhim Sain
Tyagi (supra) has held that a show cause
notice which fails to indicate the 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 to
issue fresh notice in accordance with law.
In this reference, attention is drawn to
paragraph no. 17 of the aforesaid judgment
and the same is quoted hereinbelow:-
4 All. Prashant Tiwari @ Jammu Vs. State of U.P. & Ors.
177

"17. The aforesaid anxiety of the
Division Bench should be taken due note by 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."

19. In the present case, it has to be
seen whether the alleged show cause
notice, as impugned in the present writ
petition, is within the four corners of
Section 3(1) of the U.P. Act No. VIII of
1971 or the general nature of material
allegations are missing in the alleged
notice.

20. The alleged notice dated 3rd July,
2020 specifically states that the petitioner is
a Goonda and there is a terror; fear in the
mind of the ordinary citizens; the petitioner
is having connection with other persons
having criminal antecedents; is involved in
abatement of the crime and there is an
atmosphere where no ordinary citizens is
ready to be witness against the petitioner.
Further, the Superintendent of Police,
Jaunpur has also reported seven cases of
crime or offence pending against the
petitioner and on the basis of the aforesaid,
the Superintendent of Police, Jaunpur has
recommended for action under the U.P. Act
No. VIII of 1971 against the petitioner.

21. The meaning of the words
"general nature of material allegations" has
not been provided in the Act and the same
has to be considered in light of the object of
the Act. A plain reading of the above
referred provision of law would indicate
that what is required to be informed in
writing is only the general nature of the
material allegations in order to give the
person
proposed
to
be
externed
a
reasonable opportunity of tendering an
explanation
regarding
the
allegations.
When it is said that the material allegations
against the person be communicated to him
generally or in a manner as to give an idea
of
the
general
nature
of
material
allegations, it necessarily means that the
material allegations with all their details
regarding the date, place and specific facts
of the incident must not be disclosed and
only as much indication of these allegations
178 INDIAN LAW REPORTS ALLAHABAD SERIES
be made in general terms as is sufficient to
give notice to the proposed extemee about
what he has to face and explain in the
enquiry. Such information must contain in
general terms the main allegations made
against the proposed externee and not all
the details of the allegations. In all these
proceedings, the notice to be issued under
section 3(1) should contain as much of
material allegations stated in general terms
as would be necessary for constituting a
sufficient notice contemplated under the
Act. If the show-cause notice were to
furnish to the proposed externee concrete
data like specific dates of incidents or the
names of persons involved in those
incidents, it would be easy enough to fix
the identity of those who out of fear of
injury to their person or property are
unwilling to depose in public. If such
details are to be given, it would defeat the
very purpose of an extemment proceeding.

22. The Hon'ble Apex Court in
Pandharinath Shridhar Rangnekar Vs.
Commr. of Police, (1973) 1 SCC 372 in
para 9 has observed as under:-

9.These provisions show that the
reasons which necessitate or justify the
passing of an externment order arise out of
extraordinary circumstances. An order of
externment can be passed under clause (a)
or (b) of Section 56, and only if, the
authority
concerned
is
satisfied
that
witnesses are unwilling to come forward to
give evidence in public against the
proposed
externee
by
reason
of
apprehension on their part as regards the
safety of their person or property. A full and
complete disclosure of particulars such as
is requisite in an open prosecution will
frustrate the very purpose of an externment
proceeding. If the show-cause notice were
to furnish to the proposed externee concrete
data like specific dates of incidents or the
names of persons involved in those
incidents, it would be easy enough to fix
the identity of those who out of fear of
injury to their person or property are
unwilling to depose in public. There is a
brand of lawless element in society which
is impossible to bring to book by
established
methods
of
judicial
trial
because in such trials there can be no
conviction without legal evidence. And
legal evidence is impossible to obtain,
because out of fear of reprisals witnesses
are unwilling to depose in public. That
explains why Section 59 of the Act imposes
but a limited obligation on the authorities to
inform the proposed externee "of the
general nature of the material allegations
against him". That obligation fixes the
limits of the co-relative right of the
proposed externee. He is entitled, before an
order of externment is passed under Section
56, to know the material allegations against
him and the general nature of those
allegations. He is not entitled to be
informed of specific particulars relating to
the material allegations."

23. In the present case, the general
nature of allegations have been stated in the
alleged notice dated 3rd July, 2020 and the
factual foundation in general terms have
been laid down by the authority concerned
in the impugned order. The correctness or
sanctity of the aforesaid allegations are not
subject matter of enquiry before this Court
at this stage. Once the general nature of
material allegations is provided by the
concerned authority in the impugned order,
it would not be open for this Court to
examine the correctness of the general
allegations on merit in the writ jurisdiction
specifically when the authority concerned
is seized of the matter and the petitioner
has an opportunity to file an explanation
4 All. M/s Himalaya Sahkari Awas Samiti Ltd., Ghaziabad Vs. U.P. Awas Vikas Parishad
 Lucknow & Anr.
179
before the authority concerned. Even if an
order has been passed under Section 3 (1)
of the U.P. Act No. VIII of 1971, the person
concerned has a right of appeal under
Section 6 of the aforesaid Act.

24. In view of the aforesaid, since the
nature of the general allegations are
provided in the impugned order. This Court
under extraordinary jurisdiction decline to
interfere with the impugned order at this
stage and liberty is granted to the petitioner
to approach the authority concerned for
appropriate redressal.

25. It is made clear that we have not
addressed the issues raised by the petitioner
on the merit of the allegation in the
impugned order dated 3rd July, 2020 and it
shall be open for the authority concerned to
independently apply its mind to the facts
and circumstances and material available
and come to a logical conclusion in
accordance with law.

26. Accordingly, the writ petition
lacks merit and is dismissed with liberty to
the petitioner to approach the authority
concerned in accordance with law.
----------
(2022)04ILR A179
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal No. 374 of 2019

M/s Himalaya Sahkari Awas Samiti Ltd.,
Ghaziabad ...Appellant
Versus
U.P. Awas Vikas Parishad Lucknow & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Vishnu Singh, Sri Anil Kumar Rai, Sri
Greesh Kumar Malviya

Counsel for the Respondents:
Sri Chandra Shekhar Singh, Sri Anand
Kumar

Civil Law - U.P. Co-operative Society Act,
1965- whether demanding interest at the
rate of 18% and penal interest at the rate
of 21% is bad - Held - rate of interest
would be 8% (Para 17)

Two acres plot was given to the appellant -
appellant had to make payment by way of
installments - appellant deposited the amount
for five years but could not pay installments -
respondents claimed 18% rate of interest and
21% as penalty interest for unpaid amount - In
the allotment order it was not fixed what
additional interest would be liable to be paid by
the society if the the amount of installment was
not deposited within stipulated period of time -
society already deposited a sum which is more
than 50% of the cost of land - Held - appellant -
plaintiffs would be obliged pay the remaining
amount with 8% rate of interest.

Allowed. (E-5)

List of Cases cited:

1. Swasthya Enclave Sahkari Awas Samiti Ltd. &
anr.Vs D.M. Ghaziabad & Others WRIT - C No. -
13223 of 2002

2. UP Avas Evam Vikas Parishad Vs. Swasthya
Enclave Sahkari Awas Samiti Ltd. & ors. Civil
Appeal No.9088 of 2015

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Vishnu Singh, learned
counsel for appellant and Sri Chandra
Shekhar
Singh,
learned
counsel
for
respondent.