THE HONOURABLE SRI JUSTICE N.TUKARAMJI WRIT PETITION No.37441 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 action of the Respondent No.2 issuing the notice dated 19.9.2017 under section 133 of Cr. P.C. without inspecting the premises of the Premises of the Petitioners as well as putting lock the Snooker Parlour on 31.10.2017 running in the name of GROUND ZERO at the premises of House No. 3-6-290, Flat No. 405 and 406 Fourth Floor, Sai Tirumala Towers, Hyderguda, Hyderabad with all the permissions from the Government Departments without issuing the seizure notice or giving opportunity to the Petitioner No.1 and spoiling the business of the Petitioner No.1 as Illegal, Arbitrary, Unjust, Unconstitutional and against the Principles of Natural Justice consequently direct the Respondent No.2 withdraw the notice dated 19.9.2017 as well as open the locks directions against the said Business Establishment i.e., Ground Zero so as to enable the Petitioner No.1 to run his legalized business and pass..….”

2. None appeared on behalf of the petitioners.

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

4. Learned Assistant Government Pleader for Home submits that the Executive Magistrate, upon considering the report submitted by the concerned police authorities, issued the impugned notice. Since the petitioners failed to comply with the directions contained therein, the authorities proceeded further and closed the business premises. It is contended that the said action was taken solely on the ground that the business premises in question was causing public nuisance. He further pleaded that earlier, two summary trial cases had been registered against the petitioners’ establishment, which were compounded upon payment of fines. Therefore, the present contention of the petitioners lacks substance and the writ petition deserves dismissal.

5. I have carefully perused the materials available on record.

6. The grievance of the petitioners is directed against the impugned notice dated 19.09.2017 issued under Section 133 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) by the respondent No.3.

7. It is the case of the petitioners that, acting upon the recommendation of the respondent No.3, the Special Executive Magistrate (respondent No.2) issued a notice directing closure of the petitioners’ establishment, namely, a parlour, within 48 hours, on the grounds of alleged public nuisance and on the assertion that the premises is situated in a residential area. Per contra, in the affidavit filed in support of the writ petition, the petitioners assert that their business operates from a duly sanctioned commercial building; that no complaints have ever been received from the general public; and that all requisite safety measures, including CCTV surveillance and restricted entry for individuals above 18 years of age, are in place. The petitioners further contend that the respondents, without conducting any prior enquiry, inspection, or proceedings as mandated under law, issued the impugned notice and sealed the premises on 31.10.2017.

8. Section 133 Cr.P.C. empowers an Executive Magistrate to pass a conditional order requiring the removal of unlawful obstructions or nuisances, or to prohibit conduct or activities hazardous to public safety, health, or convenience. It is well settled that proceedings under this section are preventive and summary in nature, not punitive. The object of the provision is to prevent imminent danger or public nuisance and to protect the public at large. However, for an order of closure of a business establishment to be justified under Section 133 Cr.P.C., the Magistrate must form an objective opinion, based on tangible evidence, that the activity in question amounts to a public nuisance