# Shakeel Ahmad and Ors v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 1053
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-12
- **Case number:** Criminal Misc. Writ Petition No.17236 of 2010
- **Bench:** Mohd. Tahir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shakeel-ahmad-and-ors-v-state-of-u-p-and-ors-42544
- **Pages:** 6

## Headnote

Cr.P.C. Section-133- Petitioner doing
business of restoring bones and leather
of dead animals-polluting atmosphere of
locality-inspite
of
conditional
order
passed by Magistrate neither complied
direction nor shown cause-even the
license not renewed-paying business
taxes-with other local taxes-immaterialMagistrate rightly passed final orderrequired no interference.

Held: Para-11
 According to the the conjoint reading of
Sections 135 and 136 Cr.P.C., it is clear
that
if
the
person
to
whom
the
conditional order is addressed, does not
perform the acts within the time as
directed by the conditional order or fails
to appear and to show cause, the
1054 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

conditional order is made absolute. In
the present case, the petitioners neither
performed the act as directed by the
conditional order nor showed any cause
against the said order in spite of availing
sufficient opportunity for the same. So
the Magistrate concerned rightly made
the conditional order absolute and the
revisional court rightly confirmed the
same.

Case Law discussed:
1992 (Cr.LJ) 379 (Bom.); 2004 Cr.L.J. 2262;
AIR 1939 Patna 183

## Text

2 All] Shakeel Ahmad and Ors. Vs. State of U.P. and Ors.

1053
unreasonably without holding any enquiry
or by prolonging the enquiry itself, is
penal in nature and cannot be sustained.

13. The view I have taken is
supported from another Judgment of this
Court in Ayodhya Rai & others Vs. State
of U.P. & others 2006 (3) ESC 1755."

6. The above dictum is applicable in
the case in hand in entirety. Besides, in the
present case, keeping the petitioner under
suspension for more than two decade is not
only arbitrary and wholly illegal exercise of
power, but it shows an criminal intent on
the part of respondents in wasting public
exchequer by keeping a person under
suspension for two decades and more and
pay him subsistence allowance and not to
take any work for such a long time on the
pretext of pendency of an enquiry which has
not seen the light of the day for the last
more than two decades. Such a prolonged
suspension, in my view, speaks volume and
it appears that respondents after suspending
petitioner forgot it and a Class IV employee
in the result has suffered for this entire
period. It is in these peculiar facts and
circumstances, in my view, not only the
order of suspension is unsustainable and
petitioner is entitled to relief, but this writ
petition deserves to be allowed with
exemplary cost against the respondents.

7. In view of above, impugned
suspension order cannot sustain.

8.

Writ
petition
is
allowed.
Impugned order of suspension dated
8.5.1992 (Annexure 1 to writ petition) is
hereby quashed.

9. Petitioner shall be entitled to all
consequential benefits with cost of Rs.
25,000/- against respondents 2 and 3.

10. At the first instance, the cost
shall be paid by respondent no. 1, but it
shall be at liberty to recover the same
from the concerned officer(s) who is/are
found responsible for such extraordinary
delay in the enquiry and keeping the
petitioner continued under suspension for
the last almost two decades.
---------
ORITGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2013

BEFORE
THE HON'BLE MOHD. TAHIR, J.

Criminal Misc. Writ Petition No.17236 of
2010

Shakeel Ahmad and Ors. ...Petitioners
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Mohd. Naushad Siddiqui, Sri Amar
Nath Tewari
Sri R Nath Tewari

Counsel for the Respondents:
A.G.A., Sri Vinod Kumar

Cr.P.C. Section-133- Petitioner doing
business of restoring bones and leather
of dead animals-polluting atmosphere of
locality-inspite
of
conditional
order
passed by Magistrate neither complied
direction nor shown cause-even the
license not renewed-paying business
taxes-with other local taxes-immaterialMagistrate rightly passed final orderrequired no interference.

Held: Para-11
 According to the the conjoint reading of
Sections 135 and 136 Cr.P.C., it is clear
that
if
the
person
to
whom
the
conditional order is addressed, does not
perform the acts within the time as
directed by the conditional order or fails
to appear and to show cause, the
1054 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

conditional order is made absolute. In
the present case, the petitioners neither
performed the act as directed by the
conditional order nor showed any cause
against the said order in spite of availing
sufficient opportunity for the same. So
the Magistrate concerned rightly made
the conditional order absolute and the
revisional court rightly confirmed the
same.

Case Law discussed:
1992 (Cr.LJ) 379 (Bom.); 2004 Cr.L.J. 2262;
AIR 1939 Patna 183

(Delivered by Hon'ble Mohd. Tahir, J.)

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 vs.
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 vs. 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.

2. 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 vs. 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.

3. I have heard learned counsel for
the petitioners as well as learned counsel
2 All] Shakeel Ahmad and Ors. Vs. State of U.P. and Ors.

1055
for the respondents and perused the
record.

4. 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.

5. I find no force in the contention of
the counsel for the petitioners because for
initiation of proceedings under Section
133(1) Cr.P.C. it is the satisfaction of the
Magistrate concerned as to whether any
public nuisance exists. The relevant
portion of Section 133(1) Cr.P.C. reads as
hereunder:-

"133.
Conditional
order
for
removal of nuisance.-(1) Whenever a
District Magistrate or a Sub-divisional
Magistrate
or
any
other
Executive
Magistrate specially 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,
considers-

(a) *****

(b) that the conduct of any trade or
occupation, or the keeping of any goods
or merchandise, is injurious to health or
physical comfort of the community, and
that in consequence such trade or
occupation should be prohibited or
regulated or such goods or merchandise
should be removed or the keeping thereof
regulated; or

(c) *****

(d) *****

(e) *****

(d) *****

Such
Magistrate
may
make
a
conditional order requiring the person
causing such obstruction or nuisance, or
carrying on such trade or occupation, or
keeping any such goods or merchandise,
or owning, possessing or controlling such
building, tent, structure, substance, tank,
well or excavation, or owning or
possessing such animal or tree, within a
time to be fixed in the order-

(i)to remove such obstruction or
nuisance; or

(ii)to desist from carrying on, or to
remove or regulate in such manner as may
be directed, such trade or occupation, or
to remove such goods or merchandise, or
to regulate the keeping thereof in such
manner as may be directed; or

(iii)*****

(iv)*****

(v)*****

(vi)*****
1056 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

or, if he objects so to do, to appear
before himself or some other Executive
Magistrate subordinate to him a a time
and place to be fixed by the order, and
show cause, in the manner hereinafter
provided, why the order should not be
made absolute."

6. The words occurring in Section
133(1) Cr.P.C. "and on taking such
evidence (if any) as he thinks fit" indicate
that recording or taking of evidence
before passing a conditional order under
Section 133(1) Cr.P.C. is discretionary
and not mandatory. In this regard, my
opinion finds support from the view taken
by the Bombay High Court in the case of
Tejmal Poonam Chand Burad vs. State
of Maharashtra, 1992 (CrLJ) 379
(Bom). In that case, the Bombay High
Court has held that the Magistrate is not
required to record evidence when he
passes the conditional order. The trade or
business of storing bones and leather of
dead animals certainly emits foul smell
and injurious to public health and
comfort. So in such a case in the interest
of public immediate action is necessary
and the conditional order for removal of
such public nuisance can be passed by the
Magistrate without taking or recording
evidence. In this regard, my view further
finds support from the view taken by the
Punjab and Haryana High Court in the
case of Ram Lal vs. State of Punjab,
2004 Cr.L.J.2262, in which it has been
held that illegal Hada Rori operation near
National High way emitting foul smell
and causing pollution and discomfort to
the travellers, is public nuisance and in
such a case conditional order can be
passed without recording evidence. In the
present case, the S.D.M. concerned
proceeded under Section 133(1) Cr.P.C.
against the petitioners on the basis of the
report submitted by the police officer.
There is nothing on record to show that
the said police officer had some enmity
with the petitioners or he in collusion with
the opposite party submitted the report
against the petitioners. So, in these
circumstances,
the
non-taking
or
recording of evidence by the Magistrate
before passing the conditional order does
not, in any manner, adversely affect the
proceeding of the present case.

7. The counsel for the petitioners has
further submitted that this business of
storing bones and leather of dead animals
is being carried on by the petitioners on
that place for a long time and prior to that
their ancestors were doing this business
on that place. He has further submitted
that the petitioners are paying business tax
also to the Municipality and in that
regard, the photocopies of tax paying
receipts have been filed from their side.
So the impugned order of the Magistrate
disturbing the business of the petitioners
is unjust and improper and accordingly,
the revisional court's order confirming the
said order of the Magistrate is also unjust
and
improper.
In
support
of
his
contention, the counsel for the petitioners
has cited the following rulings:

(I)Vasant
Manga
Nikumba
and
others vs. Baburao Bhikanna Naidu and
another, 1996 SCC (Cri) 27

(II)Makhan Lal and others vs. Buta
Singh, 2003 CRI. L. J. 4147

8. I find no force in this contention
also because long standing user or
business which creates public nuisance
and which is injurious to health and
physical comfort of the persons of the
community and from which there is
2 All] Shakeel Ahmad and Ors. Vs. State of U.P. and Ors.

1057
strong apprehension of spreading the
serious diseases, cannot be legalised on
the basis of its long existence. In the
present case, there is clear report of the
police
officer
concerned
that
the
petitioners are running the business of
storing the bones and leather etc. in their
godowns, in the thickly populated locality
of Mohalla Kasab Muhal, P.S. Mughal
Sarai, District Chandauli, as a result of
which foul smell spreads out all around
and it has become very difficult for the
persons of that locality to live there. This
report is of the date of 1.9.2009. Prior to
this report, on 19.7.2007 petitioners
Shakeel Ahmad, Parvez Ahmad and
Sirajul
Haque
had
given
written
undertaking (Tehrir) to the Additional
Superintendent of Police to the effect that
they would shift their godowns of bones
and
leather
outside
the
Abadi
by
30.9.2007. This report clearly shows that
the
petitioners
were
operating
this
noxious business inside the Abadi and
further it shows that they promised to
shift this business outside the Abadi
before 2 years of the said police report.
The report of the committee, dated
19.5.2010, consisting of S.D.M. Sadar,
C.O. Sadar and Chief Veterinary Officer,
Additional
Chief
Medical
Officer
submitted to the District Magistrate,
Chandauli also further fortifies this fact
that this business was being carried on
inside the Abadi and the said godown of
bones etc. was emitting unbearable smell
and was creating health hazards to the
people of that locality. The photocopies of
the aforesaid two papers have been filed
along with the counter affidavit filed by
the private respondent and these two
papers have not been challenged by the
petitioners. So, such a business which
creates health hazards to the community
of the locality and from which there is
strong apprehension of spreading serious
diseases in the locality, cannot be allowed
to continue on the basis of its long
existence.
Therefore,
no
length
of
enjoyment can legalise a public nuisance
involving danger to the health of the
community. In this regard, my view finds
support from the view expressed by the
Division Bench of Patna High Court in
the case of Maksood Ali and others vs.
President, Union Board, Garhwa, AIR
1939 Patna 183. In the cases relating to
the rulings cited by the counsel for the
petitioners the public nuisance was not
proved but in the case at hand the public
nuisance undisputedly and by its nature is
very well proved, so the rulings cited by
the counsel for the petitioners are
distinguishable
on
facts
and
circumstances of the matter, so they are
not applicable in the present case.

9. It is also pertinent to mention here
that the petitioners in the revision memo
filed by them in the revisional court have
admitted that they have no licence to run
the business in question. So, the business
tax payment receipts are of no help to the
petitioners. In that view of the matter also,
the impugned order of the Magistrate
concerned is fully just and proper and the
revisional court has rightly dismissed the
revision filed against that order.

10. The counsel for the petitioners
has further challenged the order dated
15.5.2010 of the Magistrate concerned on
this ground also that this order is an ex
parte order and on the date, this order was
passed, the Advocates of Chandauli court
were on strike, so in the absence of the
parties or their counsel this order ought
not to have been passed by the Magistrate
concerned and in this regard, the copy of
the Resolution of Bar Association has
1058 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

been filed by the petitioners. This
contention is also bereft of any force
because there was no such resolution of
Bar Association that the Magistrate or any
other officer would not pass any order on
that date and moreover, there is no law
that the Magistrate or any other officer
cannot pass any order on the day of strike
of the advocates. The impugned order of
the Magistrate concerned indicates that
the petitioners were given about 5 dates
for filing their objections against the
conditional order but no objection was
filed by the petitioners against the
conditional order and the petitioners even
remained regularly absent on two dates
from the court. So, sufficient opportunity
was given to the petitioners by the
Magistrate concerned to file objection
against the conditional order but they
failed to file the objection against the
same, as a consequence thereof the
conditional order was made absolute by
the Magistrate concerned under the
provisions of Section 136 Cr.P.C. In this
regard, the reference of Sections 135 and
136 Cr.P.C. appears essential. Sections
135 Cr.P.C. reads as follows:-

"135. Person to whom order is
addressed to obey or show cause.-The
person against whom such order is made
shall-

(a) perform, within the time and in
the manner specified in the order, the act
directed thereby; or

(b) appear in accordance with such
order and show cause against the same.

Section 136 Cr.P.C. reads as follows:

"136. Consequences of his failing
to do so.-If such person does not perform
such act or appear and show cause, he
shall be liable to the penalty prescribed in
that behalf in section 188 of the Indian
Penal Code (45 of 1860,) and the order
shall be made absolute."

11. According to the the conjoint
reading of Sections 135 and 136 Cr.P.C.,
it is clear that if the person to whom the
conditional order is addressed, does not
perform the acts within the time as
directed by the conditional order or fails
to appear and to show cause, the
conditional order is made absolute. In the
present case, the petitioners neither
performed the act as directed by the
conditional order nor showed any cause
against the said order in spite of availing
sufficient opportunity for the same. So the
Magistrate concerned rightly made the
conditional
order
absolute
and
the
revisional court rightly confirmed the
same.

12. In view of the above, I find no
illegality or impropriety or jurisdictional
or procedural error in the impugned
orders of both the courts below and
therefore, these orders call for no
interference.

13. For the foregoing reasons, the
writ petition is dismissed and the
impugned orders of both the courts below
are confirmed.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 23.05.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 19200 of 2012

Shishupal Parihar

 ...Petitioner