MAHBOOB HASAN Vs. STATE OF U P

JUDGEMENT

(1.) K. L. Sharma, J. This is a Criminal Miscellaneous Writ Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorari quashing the notice/order, dated 5. 4. 1994 issued/passed by the S. D. M. , Kairana, Muzaifarnagar under Section 107/116, Cr. P. C. whereby the nine persons including the four petitioners were directed to appear and show cause on 6. 4. 1994 as to why they may not be required to keep peace for a period of one year by executing a personal bond with two sureties each in the amount of Rs. 5,000. Another prayer for issuance of a writ of mandamus has been made for commanding the respondents, their agents and employees not to interfere with the petitioner in holding their cattle markets in plot Nos. 102 and 103 etc. at village. But are District Muzaifarnagar on every Wednesday and Thursday by arresting and detaining the petitioners, their relations and partners. This Writ Petition has been contested on behalf of the respondent No. 2.

(2.) AFTER hearing the learned Counsel for the petitioners on several dates and the learned Counsel appearing for the Zila Parishad now Zila Panchayat, Muzaifarnagar, it has come to the notice of the Court that the impugned order, dated 5. 4. 1994 passed by the S. D. M. , Kairana (as contained in Annexure-8 to the Writ Petition) has been withdrawn on account of the expiry of the limitation of one year as prescribed by the Code of Criminal Procedure. In view of this position learned Counsel appearing on behalf of the contesting respondent has submitted that this Writ Petition has become infructuous and no relief as prayed by the petitioners, can be granted in this Writ Petition. He has further submitted that this Writ Petition was also not maintainable in view of the pending judicial proceedings of civil and criminal nature in the subor dinate Courts.

(3.) ACCORDING to the petitioners, Late Israil father of the petitioner No. 1 Mah boob Hasan and the respondent Nos. 8 to 10 had been holding private cattle market in old No. 178, 178-M and 180 (new plot Nos. 102 and 103) of village Butrara District Muzaifarnagar on every Wednesday and Thursday since the year 1951. Learned Coun sel for the petitioners orally pointed out that the petitioners had been holding cattle market in Plot Nos. 1397 to 1405) (new plot Nos. 1272 to 1281) of village Banat District Muzaifarnagar on every Wednesday and Thursday. Since the year 1947 in the village Banat situated at a distance of more than 8 kms. away from village Butrara in Pargana Kairana, District Muzaifarnagar. However, a dispute arose between the partners and a civil suit No. 127 of 1960 was filed by Shabbir Hasan and another (Shabbir Hasan v. Mahboob Hasan), for injunction, rendition of account and for dissolution of partnership, which was dismissed on 30. 9. 1963 by the Additional Civil Judge after recording a finding that the petitioner alone has been holding the cattle market on the aforesaid plots on Wednesday and Thursday. An appeal filed against the judgment and order of dismissal of the suit No. 127 of 1960 was dismissed on 20. 10. 1964 by the District Judge, Muzaifarnagar. A second appeal filed against the judgment and decree, dated 20. 10. 1964 in the first appeal by the District Judge was also dismissed by the High Court on 26. 8. 1971. The bye-laws of the District Board Muzaifarnagar prohibiting the cattle markets by any person were held to be illegal by the Hon'ble Supreme Court in the case of Tahir Husain v. District Board, Muzaffar nagar, AIR 1954 SC 630. The District Board Act, 1922 was repealed and replaced by U. P. Kshetra Samiti and Zila Parishad Adhiniyam, 1961. In exercise of the powers conferred by Section 239 of U. P. Kshetra Samiti and Zila Parishad Adhiniyam, 1961 the Zila Parishad Muzaffarnagar being successor of District Board, Muzaffarnagar framed fresh bye-laws in 1966 for regulating cattle markets. Bye-law No. 34 and Government Order, dated 11. 6. 1968 however provide that within the radius of 4 kms. of existing cattle market, no other cattle market could be established. On the basis of this bye-law and Government Order the Zila Parishad, Muzaffarnagar threatened to establish a cattle market at Banat. Moreover bye-law No. 25 was challenged and struck down in W. P. No. 3504 of 1966 Bhullan v. Zila Parishad, Muzaffarnagar, and Special Appeal No. 15 of 1967 filled by Zila Parishad, Muzaffarnagar was also dismissed. The petitioner filed a Civil Suit No. 259 of 1977 for restraining the Zila Parishad from interfering in his right to hold the cattle market at village Banat and a prayer for licence to hold the cattle market was also made. This suit was decreed on 25. 5. 1990 by the learned Munsif, Muzaffarnagar. The Zila Parishad felt aggrieved and filed Civil Appeal No. 63 of 1990, but no stay order was granted by the District Judge. However, the Zila Parishad, Muzaffarnagar notified the cattle market at Banat for public auc tion for holding it on contract basis. In the civil appeal pending before the learned Additional District Judge, the petitioner as respondent filed an application for injunc tion to restrain the Zila Parishad from conducting public auction of the cattle market. On 8. 2. 1991 the learned Additional District Judge before whom the appeal came by transfer directed that in the event auction is held, the auction money recovered shall be deposited in the Court. The public auction was held on 9. 2. 1991 for Rs. 15 lacs for a period of three years, but the Zila Parishad has not deposited the auction money in the Court. The petitioner moved an application under Order XXXIX, Rule 2-A, C. P. C. for taking action for non-compliance of the order, dated 8. 2. 1991. A notice of the application was issued, but the matter is still bending. However again the Zila Parishad, Muzaffarnagar notified the cattle market of Banat for public auction fixing 16. 3. 1994. This public auction was also held and contract was given to respondent Nos. 8 and 9 who paid the money to the Zila Parishad but the Zila Parishad, Muzaffar nagar did not deposit that amount also in the Court. The appeal as well as the proceedings are still pending before the Addition il District Judge, Muzaffarnagar. The Zila Parishad, its officers with the help of d strict police and the district ad ministration illegally initiated proceedings against ihe petitioners under Section 144, Cr. PC. and under Section 107/116, Cr. P. C. the petitioners challenged these proceed ings in this High Court and through Criminal Mis (j. Application No. 3577 of 75 this Court allowed Criminal Misc. Application No. 3577 of 75 on 8. 10. 1976 and the proceedings under Section 144, Cr. P. C. were quashed. Late Sri Israil had also filed a civil suit No. 84 of 1975 for a permanent prohibitory injunction restraining the Zila Parishad and its employees from interfering in his right to hold the cattle market. The interim injunction was also granted on 3. 3. 1975 against which a Misc. Civil Appeal was filed by the Zila Parishad which was dismissed The Civil Judge, Muzaffarnagar confirmed the interim injunction. The Zila Parishad filed an appeal No. 92 of 1975 before the District Judge, Muzaffarnagar which was dismissed by the Ilnd Additional District Judge, Muzaffarnagar on 10. 10. 1978, bui the petitioner was directed to deposit a licence fee for holding the cattle market ai the rate of Rs. 500 per annum in the office of the Zila Parishad. The petitioners had been regularly paying the licence fee and also paid licence fee for the year 1994-95. However their application for grant of formal licence has been rejected. The order of Ilnd Addl. District Judge, dated 10. 10. 1978 has not been challenged by the Zila Parishad before the High Court. In Writ Petition No, 5296 of 1982 certain directions were issued to the Zila Parishad to consider the application for grant of licence but the Zila Parishad dismissed the application for the licence. The Zila Parishad also notified public auction of the cattle market in village Butrara and gave the contract by public auction to one Sri Vijaipal and Abbas Ali and it entered into collusion with the police authorities to get the cattle market of the petitioners at Butrara closed down. On 5. 4. 1994 a police report under Section 107/116, Cr. P. C. was procured with concocted false allegations and thereupon the same day the S. D. M. , Kairana respondent No. 4 issued notices against the petitioners and the respondents Nos. 8 to 10 and a few others under Section 111, Cr. P. C. Sri Irshad, Akhtar and Rasheed challenged the validity of the notices and the proceedings by filing Criminal Revision No. 85 of 1994 before the Sessions Judge, Muzaffarnagar, which was ad mitted but it has since been pending on 6/7. 4. 1994 the respondents Nos. 5 to 7 reached the cattle market of the petitioners and uprooted the tents and arrested the petitioners and other persons. There up on the petitioners filed the present Criminal Misc. Writ Petition on 4. 8. 1994 in which notice were issued and interim prohibitory order was passed. Special Appeal No. 590 of 1994 against the interim order, dated 5. 8. 1994 passed in the present writ Petition was dismissed by a Division Bench of this Court on 18. 8. 1994. A special Writ Petition No. 228 () of 1994 against the order, dated 5. 8. 1994 has also been dismissed by the Hon'ble Supreme Court against the interim orders passed by this Court. However the proceedings under Section 107/116, Cr. P. C. were illegally continued by the respondent Nos. 1 to 7 until they have been dropped as late as 17. 10. 1994 by the S. D. M. , Kairana.