SHAKEEL AHMAD Vs. STATE OF U.P.

JUDGEMENT

(1.) By means of this writ petition the petitioners have invoked the extraordinary jurisdiction of this Court with the prayer that the orders dated 30.10.2009 and 15.5.2010 passed by the Sub Divisional Magistrate, Sadar District Chandauli in Criminal Case No. 20 of 2009 State v. Shakeel Ahmad and others, under Section 133 Cr.P.C. and the order dated 7.7.2010 passed by the Sessions Judge, Chandauli in Criminal Revision No. 65/2010 Shakeel Ahmad and others v. State of U.P., be quashed and the respondents be restrained from disturbing the peaceful functioning of the godown of the petitioners and from demolishing the same. For the purpose of disposal of this writ petition the relevant and essential facts are as such that one Abdul Rashid had moved an application before the S.H.O., P.S. Mughal Sarai, District Chandauli against the petitioners Shakil Ahmad, Parvez Ahmad and Sirajul Haque to the effect that they are doing the business of flesh, leather and bones of dead animals in Mohalla Kasab Muhal, Mughal Sarai, District Chandauli. Their business are polluting the atmosphere of the locality and it has become very difficult for the persons of that locality to live in that area due to foul smell. On that application, Raju Diwakar Incharge Outpost Kuda Bazar P.S. Mughal Sarai went to the spot and after inspection he submitted his report to the S.D.M. Sadar Chandauli confirming the averments made in the application moved by Abdul Rashid and requested the S.D.M. Sadar to initiate proceedings under Section 133 Cr.P.C. against the petitioners. On receiving that report, the S.D.M. concerned issued notice dated 30.10.2009 to the petitioners under Section 133 Cr.P.C. asking them to remove the aforesaid nuisance or to show-cause against the notice on the date fixed. In response to the notice, the petitioners through their counsel sought time for filing the objection and further 5.3.2010, 26.3.2010, 15.4.2010 dates were fixed on the application of the petitioners but no objection against the notice was filed by the petitioners. Further, 3.5.2010 was fixed for hearing but on that date none turned up from the side of the petitioners. So, after giving sufficient opportunity S.D.M. Sadar has passed the impugned order dated 15.5.2010 whereby the conditional order was made absolute. Against that order, the petitioners filed Criminal Revision No. 65 of 2010, Shakil Ahmad and others v. State of U.P. In the Court of Sessions Judge, Chandauli. The Sessions Judge, Chandauli after hearing the counsel for both the parties dismissed the revision vide his order dated 7.7.2010 and confirmed the order dated 15.5.2010 passed by the S.D.M. Sadar, District Chandauli. Aggrieved by the said orders, the petitioners have preferred this writ petition before this Court.

(2.) I have heard learned counsel for the petitioners as well as learned counsel for the respondents and perused the record.

(3.) The counsel for the petitioners has submitted that the conditional order of the S.D.M. dated 30.10.2009 under which the notice under Section 133 Cr.P.C. was issued to the petitioners, suffers from illegality as the same was passed without taking evidence. In this regard, the counsel for the petitioners has referred Section 133(1) Cr.P.C. and submitted that according to this Section, a District Magistrate or a Sub Divisional Magistrate empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence, if any, as he thinks fit, may make a conditional order requiring the person concerned to remove obstruction or nuisance or to desist from carrying on objectionable trade or occupation. But, in the present case the conditional order under Section 133(1) Cr.P.C. was passed without taking any evidence, so the whole proceeding initiated under Section 133(1) Cr.P.C. is vitiated.