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Judgment
U.C. Dhyani, J.—Heard.
Learned counsel for the parties agree that this writ petition may be decided at the admission stage itself.
This criminal writ petition is filed by the petitioner for issuing a writ of certiorari to quash the orders dated 8.9.2008 and 17.10.2011 passed by respondent no. 2. A prayer has also been made to issue a writ in the nature of mandamus to direct the respondents to release the property in question to the petitioner. The petition is supported by an affidavit.
Petitioner alleged that the petitioner is a trusty of Mokshdham Ashram, which is adjoining with Dudhadhari Ashram. Dudhadhari Ashram is a very prosperous Ashram, which has political approach. In this Ashram, a number of politicians come and stay, and Dudhadhari Ashram wants to grab the land of the petitioner''s Ashram. Due to this, a number of cases (both civil and criminal) were filed against each other. In some of the cases, the petitioner has been acquitted and some of the cases are still pending. The petitioner purchased a plot (area 2000 sq. ft.) on 25.1.2006 in Rs. 1,50,000/- (One Lac Fifty Thousand). The said plot of the petitioner was seized by the respondents and they fixed a date of auction u/s 14 of the Uttar Pradesh Gangsters and Anti-social Activities (Prevention) Act, 1986 (hereinafter referred to as the Act). Against this, the petitioner filed a reference before the Special Judge, Gangster Court, Haridwar. In the said application, the petitioner submitted that the learned Judge has passed an order that the respondent has not submitted any information to the court concerned and not any reference has been filed by the District Magistrate. Hence, he stayed the auction of the said plot. The petitioner has submitted that no case is pending against the petitioner in Case Crime No. 411/07 u/s 2/3 of the Act, P.S. Jawalapur, District Haqridwar and in all the alleged cases, he has been acquitted. The petitioner has further submitted that in the above Case Crime No. 411/07 u/s 2/3 of the Act, the Investigating Officer has already submitted final report on 1.3.2008. It has further been stated in paragraph 9 of the petition that respondent no. 2 has passed order without due consideration of facts and circumstances of the case, misusing the Act. The petitioner has submitted that though no case is pending against him in Case Crime No. 411/07 u/s 2/3 the Act at P.S. Jawalapur, District Haridwar, yet the plot of the petitioner has been seized, which is absolutely arbitrary and misuse of the Act.
Learned counsel for the petitioner prayed that when no case is pending against the petitioner in the Act, the seizure of the property under the Act is in violation of principles of natural justice and is misuse of Sections 14 to 16 of the Act. While the learned Special Judge has held that the order of District Magistrate / collector is prima facie illegal, but he has not released the Ashram of the petitioner in his favour. A prayer has, therefore, been made to quash the order dated 8th September, 2008 passed by learned District Magistrate, Haridwar, whereby certain property situated in Devpur, Mustakam, Pargana Jawalapur, Tehsil and District Haridwar was seized in favour of the State Government, given in Supurdagi of Inspector Incharge Jawalapur and Tehsildar Haridwar was authorised to hold public auction of said property.
Aforesaid order dated 8th September, 2008 of District Magistrate, Haridwar was challenged by the present petitioner before the learned Special Judge, Haridwar dealing with the said Act.
Section 14 of the Act provides as under:
Attachment of property.-(1) If the District Magistrate has reason to believe that any property, whether movable or immovable, in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under this Act, he may order attachment of such property whether or not cognizance of such offence has been taken by any Court.
(2) The provisions of the Code shall mutates mutandis apply to every such attachment.
(3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under sub-section (1) and the Administrator shall have all the powers to administer such property in the best interest thereof.
(4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property. which It is the case of the petitioner y way of this writ petition, the petitioner seeks to issue a writ, order or direction in the nature of mandamus directing respondent no. 1 to accept the application form of the petitioner for the post of Trainee Teacher in Govt. Primary Schools of Uttarakhand State pursuant to the advertisement dated 14.12.2011.
Section 15 of the Act provides for release of the property, which is attached u/s 14. The claimant thereof may, within three months from the date of knowledge of such attachment, make a representation to the District Magistrate showing the circumstances in and the sources by which such property was acquired by him. If the District Magistrate is satisfied about the genuineness of the claimant, he is required to release the property from attachment forthwith and thereupon such property shall be made over to the claimant.
Learned counsel for the petitioner drew the attention of the Court towards Section 16 of the Act, which runs as follows:
Inquiry into the character of acquisition of property by Court.-(1) Where no representation is made within the period specified in sub-section (1) of Section 15 or the District Magistrate does not release the property under sub-section (2) of Section 15 he shall refer the matter with his report to the Court having jurisdiction to try an offence under this Act.
(2) Where the District Magistrate has refused to attach any property under sub-section (1) of Section 14 or has ordered for release of any property under sub-section (2) of Section 15, the State Government or any person aggrieved by such refusal or release may make an application to the Court referred to in sub-section (1) for inquiry as to whether the property was acquired by or as a result of the commission of an offence triable under this Act. Such Court may, if it considers necessary or expedient in the interest of justice so to do, order attachment of such property.
(3)(a) On receipt of the reference under sub-section (1) or an application under sub-section (2), the Court shall fix a date for inquiry and give notices thereof to the person making the application under sub-section (2) or, as the case may be, to the person making the representation u/s 15 and to the State Government, and also to any other person whose interest appears to be involved in the case.
(b) On the date so fixed or on any subsequent date to which the inquiry may be adjourned, the Court shall hear the parties, receive evidence produced by them, take such further evidence as it considers necessary, decide whether the property was acquired by a gangster as a result of the commission of an offence triable under this Act and shall pass such order u/s 17 as may be just and necessary in the circumstances of the case.
(4) For the purpose of inquiry under sub-section (3) the Court shall have the power of a Civil Court while trying a suit under this Code of Civil Procedure, 1908 (Act No. V of 1908), in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any Court or office;
(e) issuing commission for examination of witness or documents;
(f) dismissing a reference for default or deciding it ex part;
(g) setting aside an order of dismissal for default or ex parte decision.
(5) In any proceedings under this Section, the burden of proving that the property in question or any part thereof was not acquired by a gangster as a result of the commission of any offence triable under this Act, shall be on the person claiming the property, anything to the contrary contained in the Indian Evidence Act, 1872 (Act No. 1of 1872), notwithstanding.
It is the contention of the learned counsel for the petitioner that he has already moved a representation to the District Magistrate showing the circumstances and resources by which such property was acquired by him. District Magistrate has not released the property under Sub-section (2) of Section 15. District Magistrate has not referred the matter with his report to the Court having jurisdiction to try an offence under this Act. The proceedings regarding the attached property have been initiated, which is contrary to provisions of law.
Learned Special Judge vide order dated 12.12.2011 has also held that the District Magistrate has not referred the matter to the Court under the provisions of Section 16(1) of the Act. Learned Special Judge has also observed that auction proceedings have been initiated before submission of the charge sheet. When the reference (of petitioner) is pending, auction proceedings (of the attached property) was not desirable. The auction proceedings were stayed by learned Special Judge and application of the petitioner (Paper No. 13 A) was allowed in part.
Learned counsel for the petitioner drew the attention of this Court towards the application dated 23.11.2011, which was moved before learned Special Judge at Haridwar.
In his application, the petitioner made two prayers before learned Special Judge:
(i) the orders dated 8.9.2008 and 17.10.11 passed by the learned District Magistrate be quashed and (ii) property confiscated in favour of the State be released in applicant''s favour.
A perusal of prayer made in the writ petition, application moved before Special Judge, orders passed by the Special Judge on such application and orders passed by learned District Magistrate, reveals that present writ petition moved on behalf of the petitioner is premature. A prayer is being made to issue a writ of certiorari to quash the orders passed by respondent no. 2 District Magistrate, Haridwar and to issue a writ in the nature of mandamus to direct the respondents to release the property in question to the petitioner. An elaborate provision is made by the legislature in the form of Section 16 regarding inquiry into the character of acquisition of property by Court. It has been provided therein, inter alia, that the Court shall fix a date for inquiry and give notices thereof to the person making the application under Sub-section (2) of Section 16 or to the person making representation u/s 15 to State Government and also to any other person, whose interest appears to be involved in the case. The Court is required to hear the parties, receive evidence produced by them, take such further evidence as it considers necessary and decide whether property was acquired by a gangster as a result of the commission of offence triable under this Act and shall pass such order u/s 17 as may be just and necessary in the circumstances of the case. Section 17 says that if upon such inquiry Court finds that the property was not acquired by a gangster as a result of the commission of any offence triable under this Act it shall order for release of the property of the person from whose possession it was attached. In any other case, the Court may make such order as it thinks fit for the disposal of property by attachment, confiscation or delivery to any person entitled to the possession thereof, or otherwise.
After such an order is passed only thereupon provision of appeal is prescribed u/s 18 of the Act saying that the provisions of Section XXIX of the Code shall, mutates mutandis, apply to an appeal against any judgment or order of a Court thus passed.
In view of above scheme of law, this Court is of the view that the writ petition filed on behalf of the petitioner is premature and therefore the reliefs sought in the writ petition cannot be considered at this stage.
Thereafter, learned counsel for the petitioner made a prayer that since his application has not been disposed of by learned Special Judge, therefore, learned Special Judge should be directed to dispose of his application expeditiously. As said earlier, the petitioner made two fold prayers before the learned Special Judge: (1) regarding quashing of orders passed by District Magistrate, and (2) to release the property in his favour which has been confiscated in favour of the State.
Learned Special Judge did not pass any order, interim or otherwise, in respect of these two prayers. Instead, he has simply stayed auction proceedings till further orders.
The prayer of learned counsel for the petitioner is innocuous. The same deserves to be allowed. A direction should be issued to the learned Special Judge to dispose of the pending application of the petitioner at an early date but keeping in view the provisions of the Act, which have been mentioned above.
A direction is, therefore, issued to learned Special Judge, Haridwar to decide the pending application of the petitioner as expeditiously as possible in accordance with the provisions of U.P. Gangsters and Anti-social Activities (Prevention) Act, 1986.
With these observations, criminal writ petition is disposed of finally at admission stage itself.