Allahabad High Court
Danish vs State Of U.P. And Another on 30 June, 2016
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 46
Case :- APPLICATION U/S 482 No. - 19403 of 2016
Applicant :- Danish
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Syed Irfan Ali
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Vijay Lakshmi,J.
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.
Heard learned counsel for the applicant and learned AGA. Perused the record.
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.
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.
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.
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.
The learned AGA has no objection in giving some time to the applicant for removing his shop.
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.
Order Date :- 30.6.2016
Pcl
