THE HONOURABLE SRI JUSTICE N.TUKARAMJI WRIT PETITION No.32525 OF 2017

O R D E R:

This Writ Petition is filed under Article 226 of Constitution of India seeking the following relief/s:-

“…to issue writ or order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned order passed by the 2^nd respondent dated 19.9.2017 is absolutely illegal, arbitrary and consequently direct the respondents not to interfere in the business activities of the petitioner in the premises bearing No.6-2-291, Sadana Building, Hyderguda, Hyderabad..….”

2. None appeared on behalf of the petitioners.

3. Heard Mr. M.Srinivas, learned Assistant Government Pleader for Home appearing for respondent Nos.1 and 2.

4. Learned Assistant Government Pleader for Home submits that the Executive Magistrate, upon considering the report and circumstances presented by the concerned police authorities, issued the impugned notice. It is further submitted that as the petitioner failed to comply with the directions contained therein, the authorities proceeded further, resulted in the closure of the business premises. The said action was taken solely on the ground that the petitioner’s business establishment was allegedly causing public nuisance. Therefore, it is contended that the petitioner’s allegations are devoid of substance, and accordingly, the learned Government Pleader prays for dismissal of the writ petition.

5. I have perused the material on record.

6. The grievance of the petitioner is directed against the impugned notice dated 19.09.2017 issued by the third respondent under Section 133 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”). It has been stated that the Executive Magistrate, who is the second respondent herein, issued the said notice directing the petitioner to close the Snooker Parlour within 48 hours on the grounds of public nuisance, rowdy behaviour in the vicinity, and the alleged location of the business in a residential area. Per contra, in the supporting affidavit, the petitioner asserts that the establishment is situated within a commercial building, operates with due permission, complies with all safety norms, and is under constant CCTV surveillance. It is further contended that there have been no complaints from the general public, nor is there any evidence of nuisance or violence traceable to the petitioner’s premises.

7. Section 133 Cr.P.C. empowers an Executive Magistrate to issue a conditional order requiring the removal of unlawful obstructions or nuisances, or to regulate or prohibit certain activities that may pose a threat to public safety, health, or convenience. The provision is preventive and summary in nature and not punitive. It is well settled that the exercise of power under Section 133 Cr.P.C. must be based on credible material showing the existence of an unlawful obstruction or public nuisance affecting the community at large.

8. The Supreme Court in C.A. Avarachan v. C.V. Sreenivasan, (1996) 7 SCC 71, held that the Magistrate’s power under Section 133 Cr.P.C. is not unbridled and should be invoked only when there is clear and convincing evidence of public nuisance. The provision contemplates a two-stage process: initially, the Magistrate may issue a conditional order under Section 133 Cr.P.C., calling upon the person concerned either to remove the nuisance or to appear and show cause against the order. Thereafter, under Section 135 Cr.P.C., the person has a right to be heard. Upon considering the explanation, if the Magistrate finds the cause unsatisfactory, the conditional order may be made absolute under Section 138 Cr.P.C.

9. Sections 137 to 143 Cr.P.C. further envisage that before finalizing such an order, the Magistrate must conduct an inquiry to ascertain the existence of the alleged nuisance or obstruction, and only upon due satisfaction and observance of procedural safeguards can an order be made absolute.

10. In the present case, the record does not disclose that any such inquiry was conduct