- (1.) A. P. Mishra, J. The petitioner challenges the notice under Section 3 of the U. P. Control of Goondas Act, dated 16-11-91 issued against him (Annexure-1 to the petition ).
(2.) STRONG reliance has been placed by the learned Counsel for the petitioner on the case of Ram Pandey v. State of U. P. and others, 1981 Cr. L. J. 1083 (FB ). Learned Counsel for the State, however, made a reference to the Division Bench decision of this Court reported in 1997 Judicial Interpretation on Crimes, page 519 - (Ballabh Chaubey v. Additional District Magistrate (Finance), Mathura and others):- "the judgment of the Full Bench shows that the question whether the writ petition should be entertained against the notice, was not considered at all. The only question which was canvassed and was considered by the Bench was whether the notice was in accordance with the requirement of Section 3 of the Act. . . The Full Bench having not considered the question of maintainability of the writ petition at the stage of notice, the decision rendered by it cannot be held to be an authority or binding precedent for holding the writ petition to be maintainable. " The only point of difference as noted in this decision is pertaining to the maintainability of writ petition. So far Article 226 of the Constitution of India is concerned, it is always open to the Court to dismiss the petition as not maintainable, if it is against the notice, or it may under the facts and circumstances of each case, entertain it if in the interest of justice it is required to do so. It is significant that the Full Bench in Ramji Pandey's case held: "if the notice issued under Section 3 (1) of the Act is not in accordance with the provisions of Section 3 (1) and if it fails to comply with the mandatory requirement of setting out the general nature of material allegation, the further proceedings initiated in pursuance of that notice would also be rendered illegal. " When we speak-'whether a writ petition should be entertained against a notice, we only refer to the exercise of discretion of this Court under Article 226 of the Constitution of India. When we hold writ not maintainable even on the ground of alternative remedy, we in effect decline to exercise our discretion. There is no bar in the Constitution of India, nor in law nor there could be any to curb constitutional process of this Court under Article 226 of the Constitution. Not to entertain is self-imposed restriction not to exercise this extraordinary discretionary power. But there is no absolute bar. In a given case it could be and has been exercised in several cases. 'not to entertain', in other words, in this context, not to consider the matter on merits. If the petitioner could raise such grounds and could be considered by any authority or Court, then the petition need not be entertained, in other words, dismissed on the ground of alternative remedy. But where the alternative remedy is not equally efficacious, encumbersome or if there be jurisdictional error in a statutory notice, e. g. , Section 21 of U. P. Trade Tax Act. Similarly under Income Tax Act inhibition or shortcoming in notice which makes subsequent proceedings illegal, the Court has discretionary power to consider the case on merit and not to push back the petitioner to contest on merit.
(3.) WE without showing any difference and with due regard to the judgment in the case of Ballabh Chaubey (supra), we examined this case, whether impugned notice on the facts and circumstance 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 to be directly in contradiction 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 Article 226 of the Constitution of India instead of rejecting the petition as not maintainable, held the impugned notice to be illegal. The petition is accordingly, allowed. The impugned notice dated 16-11-91 is quashed. However, it is without prejudice to the right of the respondents to issue fresh notice in accordance with law. Costs on the parties. Petition allowed. .;