# Smt. Kahkashan Parveen v. State of UP,1999 - **Citation:** (2011) 2 ILRA 563 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2011-05-10 - **Bench:** Amar Saran, S.C. Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kahkashan-parveen-v-state-of-up-1999-41786 - **Pages:** 3 ## Headnote (Prevention) Act 1986-Section 17-by show cause notice property acquired as result of commission of offence-matter referred to competent court for trail-it is for trail court to be consider-whether the property should be confiscated or released-not for writ court-petition dismissed. Held: Para 9 For all these reasons, as the matter has now been referred to the Special Judge, it is for the Special Judge to consider the matter on merits whether the property is to be confiscated or released. Case law discussed: Smt. Kahkashan Parveen Vs. State of UP,1999 (39) 719; 2003 AIR SCW 2458; 2009 (1) ALJ 556; AIR 1981, SC 1363; ## Text 2 All] Anil Kumar Jaiswal V. State of U.P. and others 563 34. Interim order, if any, stands vacated. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHAHAD 10.05.2011 BEFORE THE HON'BLE AMAR SARAN,J. THE HON'BLE S.C. AGARWAL,J. Criminal Misc. Writ Petition No. - 8266 of 2011 Anil Kumar Jaiswal ...Petitioner Versus State of U.P. and others ...Respondent Counsel for the Petitioner: Sri Arvind Kumar Singh II Sri K.K. Singh Counsel for the Respondent: Govt. Advocate U.P. Gangster and Anti Social Activities (Prevention) Act 1986-Section 17-by show cause notice property acquired as result of commission of offence-matter referred to competent court for trail-it is for trail court to be consider-whether the property should be confiscated or released-not for writ court-petition dismissed. Held: Para 9 For all these reasons, as the matter has now been referred to the Special Judge, it is for the Special Judge to consider the matter on merits whether the property is to be confiscated or released. Case law discussed: Smt. Kahkashan Parveen Vs. State of UP,1999 (39) 719; 2003 AIR SCW 2458; 2009 (1) ALJ 556; AIR 1981, SC 1363; (Delivered by Hon'ble Amar Saran,J.) 1. Heard learned counsel for the petitioner and learned Additional Government Advocate. 2. This writ petition has been filed for quashing of orders dated 30.12.2010 and 15.4.2011 passed by the District Magistrate, Kushinagar whereby show cause notice was issued to the petitioner and thereafter his property was attached and the matter was referred to the competent Court having jurisdiction to try the offence under the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as "the Act"). 3. Learned counsel for the petitioner contended that the said proceedings were initiated in a mala fide manner in view of a dispute with one Subhash Chandra Upadhyay because the latter had been allotted a petrol pump. The petitioner had only taken the property on lease from respondent No. 4 Smt. Sirjawati Devi, who was the wife of respondent No. 5 Shiv Kumar. He further submitted that the petitioner Anil Kumar Jaiswal and Smt. Sirjawati Devi, wife of the alleged gangster Shiv Kumar had made representations on 21.1.2011 before the District Magistrate, Kushinagar, wherein they had claimed that the property was acquired with the aid of one Prayag, the father-in-law of Smt. Sirjawati, who was a good carpenter and used to do the work of furniture and possessed a shop. He also had income from agricultural land as he possessed 2 acres of good agricultural land. The District Magistrate rejected this contention as the petitioner and Smt. Sirjawati Devi were unable to substantiate the income from other sources by any documentary or other evidence. 4. Admittedly, Shiv Kumar was facing prosecution in case crime No. 612 of 2007, under sections 41/411, 403, 413, 414, 419, 420, 467, 468 and 471 IPC and 3(1) of the Gangsters Act, P.S. Patherwa and case 564 INDIAN LAW REPORTS ALLAHABAD SERIES [2011 crime No. 362 of 2007, under sections 41/411, 419, 420, 413 and 414 IPC, PS Patherwa, district Kushinagar and the District Magistrate, Kushinagar was prima facie satisfied that the property had been acquired as a result of commission of the offence triable under the Act. He, therefore attached the property and referred the matter to the competent court under section 16(1) of the Act. 5. Learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court in Smt. Kahkashan Parveen Vs. State of UP,1999 (39) 719. However, in the said Division Bench decision, it was observed that no satisfaction was properly recorded by the District Magistrate that the property had been acquired as a result of the anti social activities of the petitioner. Furthermore, the District Magistrate had passed orders of confiscation and not merely of attachment and it was observed by the Division Bench that he has thus, overstepped his jurisdiction. 6. Reliance has also been placed by the learned counsel for the petitioner in the case of State of Bihar Vs. Kalika Kuer alias Kalika Singh and others, 2003 AIR SCW 2458 for the proposition that a subsequent Division Bench is bound to follow the earlier Division Bench and not to simple declare the earlier decision as per incuriam, but the Court should refer the matter to a larger bench. 7. As we find that the facts of this case are completely different, there is no need to refer the matter to a larger bench. Moreover, in an earlier Division Bench decision in Manzoora and others Vs. State of UP and others, 2009 (1)ALJ 556, it has been observed as follows: 16.... The order of attachment by the D.M. is also not final, as he is required to refer the matter under Section 16(1) to the Court entitled to try the offence under the Gangster Act, which after conducting an inquiry as provided under Section 6(3), passes appropriate orders under Section 17 of the Gangsters Act This order is also subject to an appeal to the High Court under Section 18. Thus this writ petition must also fail on account of the availability of effective alternative remedies to the petitioners and because a complete code for dealing with such matters has been provided under the Gangsters Act. 17. Such a view has also been taken by the Division Bench in the case of Krishna Murari Agarwal v. District Magistrate, Jhansi and Ors. 2001 (1) JIC 236 (All) which is to the effect that the Special Judge, Gangsters Act is the appropriate authority to examine such questions of fact and that the Act and that a writ petition is not the appropriate forum for questioning such orders. Paragraph 4 of the aforesaid judgement may be usefully extracted as under: The question whether the property attached has been acquired by a gangster as a result of the commission of an offence under U.P. Gangsters & Anti-Social (Activities) Prevention Act, 1986 is a pure question of fact The claim of the petitioner that the property has not been acquired by commission of an offence or that it is an ancestral property can only be established by appraisal of the evidence. It will be open to the petitioner to lead oral and documentary evidence in support of his 2 All] Shiv Rama Verma V. U.P.Cooperative Union Ltd. Thru Secy. and 2 others 565 claim before the Special Judge (Gangsters Act), where the matter has been referred. Such appraisal of evidence is not possible in the present proceedings under Article 226 of the Constitution of India. The act provides a complete machinery as against the decision of the court an appeal lies under Section 18 of the Act." 8. Reference was also made in Manzoora's case (Supra) to the decision of Supreme Court in Badan Singh alias Baddo Vs. State of UP and others, AIR 1981, SC 1363 for the proposition that the Court cannot investigate into the adequacy or sufficiency of the reasons which weighed with the authority for having reason to believe something, but the Court could only examine whether the reasons were relevant and have a bearing on the matter in regard to which it was required to entertain this belief. It could not be said that in the present case, the District Magistrate could have no reason to believe that the said properties had been acquired as a result of the commission of the offences triable under the Gangsters Act. 9. For all these reasons, as the matter has now been referred to the Special Judge, it is for the Special Judge to consider the matter on merits whether the property is to be confiscated or released. 10. In view of what has been indicated herein above, the writ petition is dismissed. 11. It is made clear that the Special Judge should not be prejudiced by the observations made herein above, which were only for the purpose of disposal of the writ petition and he sould decide the matter on merits. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 30.05.2011 BEFORE THE HON'BLE SUDHIR AGARWAL,J. Service Single No. - 10303 of 2006 Shiv Ram Verma ...Petitioner Versus U.P.Cooperative Union Ltd. Thru Secy. and 2 others. ...Respondents Counsel for the Petitioner: Pt. D.R. Shukla Counsel for the Respondents: C S C Sri Rakesh Kumar Constitution of India, Article 226-Salary during suspension period-petitioner suspended on ground of pendency of Criminal Trail-after 15 years disciplinary authority passed reinstatement order subject to out come of criminal case-but except subsistence allowance-on ground of "No Work No Pay"-salary during suspension period denied-Criminal Trail given fair acquittal-held-Principle of "No work No pay" not applicable in case in hand-employer can not be allowed to take benefit of their own wrong if an employee not allowed to work-salary can not be denied in view of Brijesh Kumar Kushwaha case. Held: Para 17 and 18 This Court in the case of Brijendra Prakash Kulshrestha Vs. Director of Education & others 2007 (3) ADJ 1 (DB) has considered the applicability of "no work no pay" and it has been held that an employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to the employer.