- (1.) THROUGH this writ petition the petitioner has prayed for a writ in the nature vfcertiorari tor quashing a notice dated 23-1-98 issued by the Apar Zila Magistrate (Addl. District Magis trate), Mahamaya Nagar, under Section 3 of the U. P. Control of Goondas Act, 1970. Amongst other grounds, it was stated that the Addl. District Magistrate (for short, ADM) could not have issued the notice. It was further stated that the notice was bad in terms of decision of the Allahabad High Court in the case of Ratnji Pandey (as reported in 1981 Crl. L. J. 1983 ). The learned AGA took up a preliminary objec tion stating that the notice was merely for showing cause and the petitioner should have approached the authority who issued the notice and should have raised all the points regarding illegality of the notice and the grounds mentioned there in and in view of the existence of an alternative remedy, the present writ petition was not maintainable.
(2.) SO far the first point is concerned, papers were placed before us by the learned AGA to show that the ADM was specifically empowered by the State Government in this behalf. The definition of the term 'district Magistrate' as given in the U. P Control of Goondas Act includes an Addl. District Magistrate specifically empowered by the State Government in that behalf. When there had been such empowerment, as per papers produced before us, the first objection taken by the petitioner is not sustainable. The parties were heard on the preliminary objection raised by the learned AGA. Reliance was placed by the learned AGA on a Division Bench decision of the Allahabad High Court in Ballabh Chaubey's case (as reported in 1997 JIC 519 All ). Here was also there was an issuance of a notice under Section 3 (1) of the U. P Control of Goondas Act. The validity of the notice was challenged and the Court was of the view that an alterna tive remedy was available to the petitioner and, as such, the writ petition was not maintainable. It was observed in para graph 6 of the judgment. "it is settled prin ciple that if proceedings are initiated under a statute which creates a liability and also provides for a remedy, the remedy provided by that statute only must be availed of and not a writ petition under Article 226 of the Constitution. " The Division Bench relied on a decision of the Supreme Court as reported in AIR 1952 SC 64, N. P Poonu Swami v. Returning Of ficer, An order of the returning officer rejecting the nomination papers of the petitioner was challenged in a petition under Article 226 of the Constitution of India and it was held that the Repre sentation of the Peoples Act was a self-contained enactment, so far elections were concerned and it provided for one remedy through an election petition. The High Court had dismissed the writ petition on the ground of alternative remedy and the Supreme Court confirmed the view of the High Court. Reference was also made by the Division Bench of the Allahabad High Court in the case of Ballabh Chaubey to another decision of the Supreme Court as reported in AIR 1957 SC 2140, Nan-hoomalv. Heeramal. The Allahabad High Court had allowed a writ petition chal lenging the validity of the procedure adopted by the District Magistrate who had issued notice to the members of the Municipal Board to fill up a casual vacancy in the office of the President of the Board. The Supreme Court reversed the judg ment of the High Court upon a finding that the election to the office of the President of the Municipal Board could be challenged only in accordance with the procedure prescribed by the U. P Municipalities Act, i. e. by means of an election petition and the High Court could not have exercised its powers under Article 226 of the Con stitution of India to set aside an election. The Division Bench in deciding the question of entertainability of the writ petitions on the faceof availability of alter native remedy had further relied on case-laws touching elections. Reference was also made to a decision touching certain proceedings under the Income Tax Act against a notice which was challenged on the ground of illegalities.
(3.) LEARNED AGA further relied on a recent (unreported) decision of another Division Bench of this High Court in Crl. Misc. Writ Petition No. 1626 of 1997, Bhunesh Misra v. State of U. P. [since reported in 1998 JIC 186 (All)]. We had called for the records of this case and perused the judgment in it. Here also a notice under the U. P. Control of Goondas Act was challenged in a petition under Article 226 of the Constitution and a preliminary objection was taken on the ground of alternative remedy. The Division Bench relied on the decision given in Ballabh Chaubey's case (supra) and dismissed the writ petition on the ground that the objection could be raised before theauthority issuing the notice. On behalf of the petitioner reliance was placed on the decision in the case of Ramji Pandey (supra ). This decision was referred to by the Hon'ble Judges of the Division Bench deciding the matter of Bhuhesh Misra (supra ). The Division Bench was of the view that the defects in the notice, as observed by the Full Bench in the case of Ram Ji Pandey (supra), could well be agitated before the authority issu ing the notice. In Ramji Pandey's case the Court was of the view that the notice under Section 3 (1) must contain the general na ture of material allegations for being the basis of the opinion of the District Magistrate. It was further held that if a notice did not comply with the require ments of Section 3 (1), it was invalid and any consequential action taken upon such notice would affect the personal liberty of a citizen and such notices must be strictly construed. The Court had allowed the petition and quashed the notice on the ground of non-observance of provisions of Section 3 (1) of the UP. Control of Goon-das Act and this order was passed on the basis of a petition under Article 226 of the Constitution of India. In Ballabh Chaubey's case, the Division Bench had observed that the question whether such a writ petition would lie or not, was not at all raised or considered in Ramji Pandey's case. The Division Bench observed in Bal labh Chaubey's case. "the only question which was canvassed and was considered by the bench was whether the notice was in accordance with the requirement of Sec tion 3 of the Act" no such argument that a writ petition under Article 226 of the Con stitution should not be entertained at the stage of notice seems to have been can vassed and, therefore, no decision has been given on this point. It is well-setted that a decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observa tion found therein nor what logically flows from the various observations made in it. " It was further observed, "doctrine of precedents is limited to the decision itself and as to what is necessarily involved in it. Judicial authority belongs not to the exact words used in this or that judgment, nor even to all reasons given, but only to the principle accepted and applied as neces sary grounds of decision. " The petitioner further relied on another decision of a Division Bench of this High Court in the case otsubhash Singh, as reported in 1997 JIC 908 All. Here also a question of validity of the notice under Section 3 (1) of the U. P. Control of Goondas Act was raised in a writ petition under Article 226 of the Constitution. A question was raised before this Court with reference to Bal labh Chaubey's case if a writ petition could be maintainable. The Division Bench ob served as follows: "we without showing any difference and with d. ue regard to the judgment in the case of Ballabh Chaubey (supra), we examined this case, whether impugned notice on the facts and circumstances of this case would render the subsequent proceedings illegal or not. If yes, it would be futile to send him there to participate in the subsequent proceedings. We having perused the notice and finding, on the facts of this case, the said notice lo be directly in con tradiction with the judgment of the aforesaid Full Bench, which would make subsequent proceedings illegal, we feel it appropriate to exercise our discretion in this regard under Ar ticle 226 of the Constitution of India instead of rejecting the petition as not maintainable, held the impugned notice to be illegal. ";