Vinod Prasad, J. - (1.) ALTHOUGH instant appeal was admitted on 10.7.2003 and was listed for final hearing on 21.1.2010 but, arguendo, a legal preliminary objection was mooted for judicial determination by the two counsels for the respondents 2 to 18 Sri R.K. Awashthi and Sri Srikant, regarding maintainability of instant appeal against the impugned order dated 19.5.2003 passed by Special Judge (Gangster's Act), Kanpur Nagar, recorded in S.T. No. 96 of 1987, Kailash Sahakari Avas Samiti v. Nand Lal and Ors. and they submitted that their objection be judicially determined first as a preliminary question and then the appeal be heard on merits, if at all it becomes necessary, as according to their objection instant appeal is not maintainable against the impugned order purported to have been passed under Section 17 of the U.P. Gangster's and Anti Social Activities (Prevention) Act 1986, herein after referred to as the Act. In their submissions no appeal lay under Section 18 of the Act against an order passed under Section 17 thereof. According to the objectors an appeal is maintainable only against a conviction and sentence recorded under Section 3 of the Act and against no other order. Appellee's counsels drove support from some observations made in a decision of this Court in Badan Singh v. State of U.P. and Ors., 2001 (43) ACC 1133. Since the objectors hankered and prayed the raised question to be decided ab initio, therefore, in agreement with both the sides, they were heard on 21.1.2010 for and against the objection and order was reserved, which is being delivered now.
(2.) BEFORE judging to the mooted question, a resume of background facts, as is borne out from the record of the appeal, shorn off un -necessary details, are registered below. In trial of S.T. No. 96 of 1987, Kailash Sahkari Awas Samiti v. Nand Lal Gupta and Ors., under Section 16 of the Act several properties were attached under the orders passed by Special Judge, Gangsters Act vide it's order dated 24.12.1987. Five different sets of persons including the appellant moved to the court of Special Judge for release of the attached properties. Besides appellant, rest of the fragmented groups consisted of many persons who are respondent objectors 2 to 18, in this appeal. Respondents 10 to 14, Jagmohan, Bhola, Genda Lal, Smt. Usha and Kanhaiya Lal conglomerated in one group, Ganga Prasad and Ram Krishna Verma respondents No. 8 and 9 joined in third group, Nand Lal Gupta, Smt. Pramila @ Urmila Agarwal and Basudha Agarwal respondent Nos. 2 to 4 joined in 4th group and the last group consisted of Smt. Sant Kumari, Vijay Kumar, Abhai Kumar and Jayant Kumar respondent Nos. 15 to 18. Objection of the group of respondent Nos. 10 to 13 was in respect of Plot Aaraji No. 78 shown in the written argument of the appellant Samiti under the heading DA. Special Judge, Gangsters Act in respect of the said property recorded a finding that as per the case of both the parties, no order of release of said property is required as according to the case of appellant Samiti itself, the said landed property was not involved in the case. In respect of the other properties also the claim of the appellant was rejected by the Special Judge, who ordered the release of those properties to respondents 2 to 18 vide his impugned order dated 19.5.2003 in the light of the observations made therein.
(3.) HENCE this appeal by the appellant Samiti, which was admitted and the notices were issued to all the respondents on 10.7.2003 and the operation of the impugned order passed by Special Judge (Gangsters Act) in S.T. No. 96 of 1987 was stayed. After years when the appeal was listed for final hearing that an objection regarding it's maintainability was raised as is already noted above, which is now being determined.;