- (1.) The neat point for determination in the present writ petition under Article 226 of the Constitution is whether a bona fide student of Master of Arts can be dubbed as 'Goonda' primarily for the reason that he adopted an agitational approach to espouse the cause of the students of the college with a view to get the memorandum of their demand accepted by the college authorities. The thumb nail sketch of the case is as follows : Imram alias Abdul Quddus Khan, a student of Master of Arts in Bundelkhand College, Jhansi has been issued a show cause notice by Sri Bhagwat Prasad Misra, District Magistrate Jhansi under the provisions of Section 3 of the U. P. Control of Goonda Act, 1970 (Act No. VIII of 1971) (hereinafter referred to as 'the Act') case No. 65 of 1999. This show cause notice has been challenged on the ground that it has been issued by the District Magistrate on insufficient and perfunctory material and there has been total non-application of mind to the stringent provisions of law and since the notice has been issued in an arbitrary, perfunctory and cursory manner to repress the legitimate demands of the students, it may be quashed.
(2.) The learned A.G.A. took notice on behalf of the District Magistrate/State and vehemently urged that a writ petition against a 'show cause notice' is not maintainable. The submission was repelled and appears to be against the well established legal position.
(3.) Normally, a writ petition against a show cause notice is not maintainable as has been held in Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, AIR 1996 SC 691 wherein, the Apex Court was concerned with the entertainment of the writ petition against a show cause notice issued by the competent authority. In that case there was no attack against the vires of the statutory provisions governing the matter and no question of infringement of any fundamental right guaranteed by the Constitution was alleged or proved. It could also not be said in that case that the notice was ex facie 'nullity' or totally 'without jurisdiction' in the traditional sense of that expression that is to say, that even the commencement or initiation of the proceedings on the face of it and without anything more, was totally unauthorized. In the backdrop of these facts, the Apex Court observed as follows :- ". . . . . . In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternative remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India." Learned counsel for the petitioner urged that in view of the law laid down by a Full Bench decision of this Court in Bhim Sain Tyagi v. State of U. P., 1999 UP Cri R 417 : (1999 All LJ 1845) in which the earlier decision of this Court in Ramji Pandey v. State of U. P., (1982) UP Cri R 1 : (1981 All LJ 897 : 1981 Cri LJ 1083) (FB) has been relied upon and approved and in the light of the observations of the Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 : (AIR 1999 SC 22 : 1998 AIR SCW 3345) alternative remedy does not affect the jurisdiction of the High Court under Article 226 of the Constitution of India, the present writ petition is maintainable.;