# Danish v. State Of U.P. & Anr

- **Citation:** (2016) 6 ILRA 358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-30
- **Bench:** Mrs.Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/danish-v-state-of-u-p-anr-43963
- **Pages:** 5

## Headnote

Criminal law - Criminal Procedure Code, 1973 - Section 482 Cr.P.C. - Inherent jurisdiction - Quashing of
order under Section 133 Cr.P.C. - Encroachment on public road - Removal of public nuisance - Shop
obstructing public way - Challani report - Spot inspection - Notice refused - Alternative passage -
Pending civil suit - Criminal Revision dismissed - No ground to interfere - Time granted to remove shop.
6 All. Danish Vs State Of U.P. & Anr.

359
Some facts in brief are that the learned Additional City Magistrate (II), Aligarh, while exercising his powers u/s
133(1) Cr.P.C., vide impugned order dated 31.8.2015 ordered the applicant to remove within one week the
encroachment done by him on the public road by running his shop of goggles and belts on it. Being aggrieved
the applicant filed Criminal Revision no. 904 of 2015 challenging the aforesaid order, which was dismissed by
the court of Additional Sessions Judge, Court No. 4, Aligarh, vide order dated 26.5.2016 and the order of the
learned City Magistrate, directing the applicant to remove his shop obstructing the public way was confirmed
by learned revisional court.(Para-3)

Learned counsel for the applicant has questioned the legality and correctness of both the aforesaid orders by
contending that while passing the impugned order, the learned Magistrate has failed to consider the report
dated 30.6.2015, which clearly shows that there is an alternative passage for going to the market. Learned
counsel for the applicant has next submitted that no notice issued by the Nagar Nigam, Aligarh, was received
by the applicant for removing the said shop. It is next submitted that no spot inspection was made and
merely on the basis of police report the Magistrate has passed the impugned order. It is next submitted by
learned counsel for the applicant that a civil suit is also pending with regard to the same shop of which the
applicant is a tenant and is regularly paying Rs. 400/- per month as rent to its owner. However, one of the coowners of the said shop has initiated eviction suit against him, which is still pending. It is lastly submitted that
the applicant is running a small shop of fancy belts and goggles, which is the only source of his income. But
the learned Magistrate, without considering these facts, has passed the impugned order. More so, the learned
revisional court also, without considering these facts has illegally confirmed the order of the Magistrate and
has wrongly dismissed the revision.(Para-4)

Learned AGA has vehemently opposed the application by contending that the arguments raised by learned
counsel for the applicant are without any basis. Learned AGA has drawn the attention of the court to
Annexure no. 4 of the affidavit, which is the "challani report" of the police station concerned, in which it has
clearly been mentioned that on the application of Parvez Anwar, (O.P. No. 2 in this application) an enquiry
was made and spot inspectio

## Text

358 INDIAN LAW REPORTS ALLAHABAD SERIES

out against the present applicant. For this reason, only on the basis of investigation and evidence
collected in the course thereof, the complaint case registered on the protest petition of the first
informant, cannot be quashed.

5. From the perusal of the record, factual submissions by both the counsels are
substantiated and only question to be examined by the Court is that at the time of passing the
summoning order whether the court has committed any illegality or it has reason to believe that
prosecution was malicious or malafide.

6. After going through the protest petition, it transpires that present applicant is an
influential person, a fact substantiated from the argument of the learned counsel for the applicant
that he is village Pradhan.

7.On behalf of the first informant, probity of the investigation has been challenged.

8.In view of these averments, I think summoning order was passed after due application of
mind because probity of investigation was disputed. The evidence collected by the investigating
officer cannot be made the basis to hold that prosecution is malicious.

9.Hence, the petition is dismissed.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.06.2016

BEFORE

THE HON'BLE MRS.VIJAY LAKSHMI, J.

Application U/s 482 No.- 19403 Of 2016

Danish ...Applicant
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Syed Irfan Ali

Counsel for the Opposite Parties:
G.A

Criminal law - Criminal Procedure Code, 1973 - Section 482 Cr.P.C. - Inherent jurisdiction - Quashing of
order under Section 133 Cr.P.C. - Encroachment on public road - Removal of public nuisance - Shop
obstructing public way - Challani report - Spot inspection - Notice refused - Alternative passage -
Pending civil suit - Criminal Revision dismissed - No ground to interfere - Time granted to remove shop.
6 All. Danish Vs State Of U.P. & Anr.

359
Some facts in brief are that the learned Additional City Magistrate (II), Aligarh, while exercising his powers u/s
133(1) Cr.P.C., vide impugned order dated 31.8.2015 ordered the applicant to remove within one week the
encroachment done by him on the public road by running his shop of goggles and belts on it. Being aggrieved
the applicant filed Criminal Revision no. 904 of 2015 challenging the aforesaid order, which was dismissed by
the court of Additional Sessions Judge, Court No. 4, Aligarh, vide order dated 26.5.2016 and the order of the
learned City Magistrate, directing the applicant to remove his shop obstructing the public way was confirmed
by learned revisional court.(Para-3)

Learned counsel for the applicant has questioned the legality and correctness of both the aforesaid orders by
contending that while passing the impugned order, the learned Magistrate has failed to consider the report
dated 30.6.2015, which clearly shows that there is an alternative passage for going to the market. Learned
counsel for the applicant has next submitted that no notice issued by the Nagar Nigam, Aligarh, was received
by the applicant for removing the said shop. It is next submitted that no spot inspection was made and
merely on the basis of police report the Magistrate has passed the impugned order. It is next submitted by
learned counsel for the applicant that a civil suit is also pending with regard to the same shop of which the
applicant is a tenant and is regularly paying Rs. 400/- per month as rent to its owner. However, one of the coowners of the said shop has initiated eviction suit against him, which is still pending. It is lastly submitted that
the applicant is running a small shop of fancy belts and goggles, which is the only source of his income. But
the learned Magistrate, without considering these facts, has passed the impugned order. More so, the learned
revisional court also, without considering these facts has illegally confirmed the order of the Magistrate and
has wrongly dismissed the revision.(Para-4)

Learned AGA has vehemently opposed the application by contending that the arguments raised by learned
counsel for the applicant are without any basis. Learned AGA has drawn the attention of the court to
Annexure no. 4 of the affidavit, which is the "challani report" of the police station concerned, in which it has
clearly been mentioned that on the application of Parvez Anwar, (O.P. No. 2 in this application) an enquiry
was made and spot inspection was conducted on 27.6.2015 and it was found that the only way from where
the public can reach to the market where shop of O.P. No. 2 is situated is a slope on which the applicant is
running his shop of belts and goggles and thereby he has encroached the public way, which is the only access
point not only to the shop of O.P. no. 2 but to the entire market, which is situated at some higher level from
the ground. The learned AGA has next submitted that no such fact about the existence of any alternative path
is mentioned in the challani report and the learned revisional court has already discussed all these objections
raised by the applicant and on finding all these objections baseless, has confirmed the order passed by the
learned Magistrate.(Para-5)

Held:Paras(6,7,8,10,11,12)

A perusal of the impugned order passed by the revisional court shows that the notice sent by the City
Magistrate to the applicant was refused by him. Hence it can not be said that no notice was issued to him.
Only due to the reason that a civil suit for eviction of the applicant from the shop in question is pending, there
appears no ground to quash the proceedings under section 133 Cr.P.C., which provides for the removal of
public nuisance. There is no doubt that now a days the encroachment on public road by the shopkeepers has
become a big nuisance, which should be dealt with strictly by the courts.

In view of the above, this court does not find any good ground to interfere in the impugned orders passed by
the courts below. The application has no force and it is liable to be dismissed.

At this stage learned counsel for the applicant prays that in view of the coming festival of Id, at least some
time may be given to the applicant for removal of his shop.
360 INDIAN LAW REPORTS ALLAHABAD SERIES

Considering the facts and circumstances of the case, fifteen days time from today is granted to the applicant
to remove his shop and to comply with the order dated 31.8.2015 passed by the learned City Magistrate duly
confirmed by learned Additional Sessions Judge vide order dated 26.5.2016.With the aforesaid directions this
application is disposed of finally. A copy of this order be sent immediately to both the courts below for
compliance and necessary action.

Case Law discussed:

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. The applicant by means of the instant application u/s 482 Cr.P.C. has invoked the
inherent jurisdiction of the court with prayer to quash the order dated 26.5.2016 passed in
Criminal Revision No. 904 of 2015, Danish Vs. State and another, as well as order dated
31.8.2015 passed in Case No. D20151802002022, State Vs. Danish, under section 133
Cr.P.C. P.S. Civil Lines, District Aligarh.

2. Heard learned counsel for the applicant and learned AGA. Perused the record.

3. Some facts in brief are that the learned Additional City Magistrate (II), Aligarh,
while exercising his powers u/s 133(1) Cr.P.C., vide impugned order dated 31.8.2015
ordered the applicant to remove within one week the encroachment done by him on the
public road by running his shop of goggles and belts on it. Being aggrieved the applicant
filed Criminal Revision no. 904 of 2015 challenging the aforesaid order, which was
dismissed by the court of Additional Sessions Judge, Court No. 4, Aligarh, vide order dated
26.5.2016 and the order of the learned City Magistrate, directing the applicant to remove his
shop obstructing the public way was confirmed by learned revisional court.

4. Learned counsel for the applicant has questioned the legality and correctness of
both the aforesaid orders by contending that while passing the impugned order, the learned
Magistrate has failed to consider the report dated 30.6.2015, which clearly shows that there
is an alternative passage for going to the market. Learned counsel for the applicant has next
submitted that no notice issued by the Nagar Nigam, Aligarh, was received by the applicant
for removing the said shop. It is next submitted that no spot inspection was made and merely
on the basis of police report the Magistrate has passed the impugned order. It is next
submitted by learned counsel for the applicant that a civil suit is also pending with regard to
the same shop of which the applicant is a tenant and is regularly paying Rs. 400/- per month
as rent to its owner. However, one of the co-owners of the said shop has initiated eviction
suit against him, which is still pending. It is lastly submitted that the applicant is running a
small shop of fancy belts and goggles, which is the only source of his income. But the
learned Magistrate, without considering these facts, has passed the impugned order. More so,
the learned revisional court also, without considering these facts has illegally confirmed the
order of the Magistrate and has wrongly dismissed the revision.
6 All. Danish Vs State Of U.P. & Anr.

361
5. Learned AGA has vehemently opposed the application by contending that the
arguments raised by learned counsel for the applicant are without any basis. Learned AGA
has drawn the attention of the court to Annexure no. 4 of the affidavit, which is the "challani
report" of the police station concerned, in which it has clearly been mentioned that on the
application of Parvez Anwar, (O.P. No. 2 in this application) an enquiry was made and spot
inspection was conducted on 27.6.2015 and it was found that the only way from where the
public can reach to the market where shop of O.P. No. 2 is situated is a slope on which the
applicant is running his shop of belts and goggles and thereby he has encroached the public
way, which is the only access point not only to the shop of O.P. no. 2 but to the entire
market, which is situated at some higher level from the ground. The learned AGA has next
submitted that no such fact about the existence of any alternative path is mentioned in the
challani report and the learned revisional court has already discussed all these objections
raised by the applicant and on finding all these objections baseless, has confirmed the order
passed by the learned Magistrate.

6. A perusal of the impugned order passed by the revisional court shows that the
notice sent by the City Magistrate to the applicant was refused by him. Hence it can not be
said that no notice was issued to him. Only due to the reason that a civil suit for eviction of
the applicant from the shop in question is pending, there appears no ground to quash the
proceedings under section 133 Cr.P.C., which provides for the removal of public nuisance.
There is no doubt that now a days the encroachment on public road by the shopkeepers has
become a big nuisance, which should be dealt with strictly by the courts.

7. In view of the above, this court does not find any good ground to interfere in the
impugned orders passed by the courts below. The application has no force and it is liable to
be dismissed.

8. At this stage learned counsel for the applicant prays that in view of the coming
festival of Id, at least some time may be given to the applicant for removal of his shop.

9. The learned AGA has no objection in giving some time to the applicant for
removing his shop.

10. Considering the facts and circumstances of the case, fifteen days time from today
is granted to the applicant to remove his shop and to comply with the order dated 31.8.2015
passed by the learned City Magistrate duly confirmed by learned Additional Sessions Judge
vide order dated 26.5.2016.

11. With the aforesaid directions this application is disposed of finally.

12. A copy of this order be sent immediately to both the courts below for compliance
and necessary action.
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362 INDIAN LAW REPORTS ALLAHABAD SERIES

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.06.2016

BEFORE

THE HON'BLE ARUN TANDON, J.
THE HON'BLE MRS. SUNITA AGARWAL, J.

Public Interest Litigation (PIL) No.- 28916 Of 2016

Vijay Kumar Dwivedi ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Devbrat Mukherjee, Syed Rafat Ali

Counsel for the Respondents:
C.S.C.

MINOR MINERALS - Grant of mining leases - Government Order dated 31.5.2012 - Mandatory etendering under Rule 23, U.P. Minor Minerals (Concession) Rules, 1963 - No fresh lease, renewal, extension
or permission for obstructed period permissible thereafter (Paras 4-6, 14)

MINING LEASES - Applications pending prior to 31.5.2012 - No vested right to renewal or grant -
Applications to be governed by rules in force on date of consideration (Paras 5, 6)
ILLEGAL MINING - Excavation without subsisting lease - Issuance of Form MM-11 without authority -
Collusion of district authorities alleged - Court directions for strict enforcement and accountability (Paras 3,
14-15)

EXTENSION FOR OBSTRUCTED PERIOD - Lease expired - No right to continue excavation on plea of
earlier restraint by Court or authorities - Only compensation in money permissible, not extension of term
(Paras 13-14)

JUDICIAL PRECEDENTS - Binding nature of earlier Division Bench judgments and Supreme Court
decisions - State cannot overreach judicial pronouncements by executive amendments (Paras 5-9)

ADMINISTRATIVE ACCOUNTABILITY - Collector, SSP and District Mining Officer made personally
responsible to prevent illegal mining - Affidavits directed to be filed (Paras 14-15)

PUBLIC INTEREST LITIGATION - Protection of natural resources - Directions issued to ensure
compliance of statutory scheme - Clarification that valid leases prior to 31.5.2012 unaffected (Paras 14, 16)

List of Cases cited:

Nar Narain Mishra vs. State of U.P. and others, 2013 (2) ADJ 166 (DB)
Sukhan Singh versus State of U.P., 2014 (11) ADJ 89
Deepak Kumar v. State of Haryana, 2012 (4) SCC 629
Ramakant Dwivedi vs. Rafiq Ahmad and others, 2016 (3) SCC 352