Anshuman Singh - (1.) THE facts giving rise to this petition under Article 226 of the Constitution of India briefly stated are that proceedings under section 3 of the U. P. Control of Goondas Act, 1970 (hereinafter referred to as the Act) were initiated against the petitioner on the basis of the report of the Superintendent of Police, Banda, dated 4-7-1988. THE said proceedings were contested by the petitioner and on the basis of the materials the Additional District Magistrate was satisfied that the conditions prescribed in section 3 of the Act existed and it was expedient to direct the petitioner to remove himself outside the district for a period of six months by order dated 16-6-1989. Being aggrieved against the aforesaid order of the Additional District Magistrate the petitioner filed an appeal as provided under section 6 of the Act before the Commissioner Jhansi Division, Jhansi. It appears that an application for staying the operation of the order dated 16-6-1989 passed by the Additional District Magistrate was also filed by the petitioner before the Commissioner. THE Commissioner by the impugned order dated July 18, 1989 was of the opinion that it was not desirable to stay the operation of externment passed by the Additional District Magistrate pending disposal of the appeal and as such rejected the stay application. THE petitioner feeling aggrieved against the said order has come to this Court in the instant writ petition
(2.) SINCE there are no private parties in the writ petition, I have heard Sri R. B. Rao, counsel for the petitioner, and the Standing Counsel on behalf of the State and as provided under the second proviso to rule 2 of Chapter XXII of the Rules of Court the writ petition is being disposed of finally at the admission stage itself. It was vehemently urged on behalf of the counsel for the petitioner that the Commissioner acted illegally in rejecting the stay application of the petitioner during the pendency of the appeal. He further contended that the rejection of the stay application by the Commissioner amounts to dismissal of the appeal as the petitioner has to remove himself outside the limits of district Banda in pursuance of the order passed by the Additional District Magistrate dated 18-6-1989. He further contended that the power conferred on the appellate authority under section 6 (3) of the Act is mandatory and not discretionary and the Commissioner has no jurisdiction to reject the stay application till the disposal of the appeal. The sole question which has arisen in this writ petition for consideration is whether the power conferred on the appellate authority under section 6 (3) for staying the operation of the order passed by the District Magistrate is mandatory or discretionary. For deciding the aforesaid question it is pertinent to mention the language used in section 6 (3) of the Act which runs as under:- "6 (3) The Commissioner may either confirm the order, with or without modification, or set it aside, and may, pending disposal of the appeal, stay the operation of the order subject to such terms, if any, as he thinks fit" (Emphasis underlined) The point which has to be considered is whether the word 'may' used by the legislature should be read as 'shall' and in case it is to be read as 'shall then the contention raised on behalf of the petitioner may have force but if it is not to be read as 'shall' then the power conferred under section 6 (3) would be wholly discretionary and not mandatory. In this context the purpose for which this Act was enacted by the State legislature should be taken into account while deciding the controversy involved in the case. A perusal of the Act indicates that this Act was enacted to make special provisions for the control and suppression of Goondas with a view to the maintenance of public order. It appears that the sole object for enacting this legislation was to prevent mischief by a Goonda for the maintenance of public order and once the District Magistrate after perusing the materials comes to the conclusion that the stay of the Goonda in the district will be detrimental to the maintenance of public order because of the terror created by him, he passes an order under section 3 of the Act for his externment. It is true that the right of appeal is a statutory right conferred on a person against whom an order under section 3 of the Act has been passed by the District Magistrate and the appellate authority i.e. the Commissioner has been given power under section 6 (3) of the Act to stay the operation of the order passed by the District Magistrate, but keeping in view the object for which this legislation was enacted I am of the opinion that the power conferred on the appellate authority i.e. the Commissioner to stay the operation of the order passed by the District Magistrate under section 3 of the Act is not mandatory but discretionary. There may be case" in which after passing of the order by the District Magistrate the Commissioner in view of the gravity of the activities of a Goonda against whom an order under section 3 of the Act has been passed may feel that his presence in the district during the pendency of the appeal may be detrimental to the call for which this Act was enacted and in that situation he would be justified in not allowing a person to remain within the district during the pendency of the appeal.
(3.) AFTER hearing counsel for the parties and for the reasons stated above I am of the definite view that the legislature while conferring power on the Commissioner under section 6 (3) of the Act of staying the operation of the order passed by the District Magistrate during the pendency of the appeal is only discretionary and not mandatory and as such the argument of the counsel for the petitioner that the word 'may' used in section 6 of the Act should be read as 'shall' seems to be wholly fallacious. In the result the petition fails and is accordinnly rejected. However, the Commissioner, Jhansi Division, Jhansi is directed to dispose of the appeal filed by the petitioner as expeditiously as possible. There will be no order as to costs Petition dismissed.;