Dismissed

Vidit Jaiswal v. State of Up and Another

Allahabad HC6 Nov 2024A227/2390/2024

Case brief

AI extract

What is this about?

The High Court dismissed a petition under Article 227 challenging an Executive Magistrate's order under Section 133 Cr.P.C. directing restrictions on loading/unloading iron materials to prevent noise pollution. The Court found the conditional order justified and held it did not impede the petitioner's business operation.

What did the court decide?

None granted. Petion dismissed.

Vidit Jaiswal vs State of Up and Another — Public Procurement and Tenders | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:180461

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Court No. - 85

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Case :- MATTERS UNDER ARTICLE 227 No. - 2390 of 2024

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Petitioner :- Vidit Jaiswal Respondent :- State of U.P. and Another Counsel for Petitioner :- Arvind Agrawal,Prashant Pandey Counsel for Respondent :- G.A.,Prateek Rai

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Hon'ble Saurabh Srivastava,J.

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Heard learned counsel for petitioner, Sri Prateek Rai, learned counsel for respondent no. 2 and learned AGA for the State.

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Present petition has been preferred with the following prayer:-

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"i. Issue an order or direction setting aside the order dated 16.01.2024 passed by Sessions Judge, Varanasi passed in Criminal Revision no. 331 of 2023 (Vidit Jaiswal vs. State of U.P. and others) and order dated 28.10.2023 passed by Additional Commissioner of Police/Executive Magistrate, Commissionerate, Varanasi passed in Case no. PN-18/State vs. Mukesh Agrahari under Section 133 Cr.P.C. PS- Sigra Commissionerate, Varanasi."

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It is the case of the petitioner that petitioner is running a wholeseller and retailer firm dealing in iron materials in Ramakant Colony, Nawapura Chetganj, Varanasi. Opposite party no. 2 is the resident of the said area where the firm of the petitioner, is situated and due to jealousy, opposite party no. 2 started creating problems in smooth functioning of the petitioner's firm owing to which an NCR was lodged by both the side against each other which was registered as NCR no. 104/23 and 105/23 and thereafter proceedings under sections 107/116 Cr.P.C. was also initiated against the petitioner and opposite party no. 2. Thereafter, opposite party no. 2 moved a complaint that functioning of petitioner's firm is creating sound pollution due to loading and unloading of iron materials. On the aforesaid complaint, the Sub Inspector, Police Station Sigra, Commissionerate, Varanasi has prepared a challani report under Section 133 Cr.P.C. upon which case was registered and notices were issued to the parties. Thereafter, opposite party no. 2 on 26.09.2023 submitted his complaint that due to business functioning of petitioner, nuisance is being created.

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In reply to the said complaint, petitioner preferred his objection. Vide order dated 28.10.2023, Additional Commissioner of Police/Executive Magistrate, Commissionerate, Varanasi decided

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the said case under Section 133 Cr.P.C. and directed the petitioner to load and unload his materials from 4 A.M and 7 A.M in the morning outside of 200 meter radius of shop and to stop the sound pollution created by business functioning of his shop. Being aggrieved with order dated 28.10.2023, petitioner preferred a revision before the learned District & Sessions Judge, Varanasi who vide order dated 16.01.2024 rejected the said revision which has been challenged through the instant petition.

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Learned counsel for the petitioner challenged the impugned orders on the grounds that both the learned courts below without considering the case that community or public at large is not affected by the business functioning of petitioner have illegally passed the order impugned. In the surrounding of petitioner's business place, several other commercial business set up are also situated. The schools which are situated in the business area of petitioner have no objection with the business functioning of petitioner and this ground was raised by petitioner before the learned court below but it was not considered. The conditional order dated 28.10.2023 passed against the petitioner's firm will ruin the business of the petitioner and as such the impugned orders are liable to be set aside.

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Per contra, Sri Prateek Rai, learned counsel for respondent no. 2 while rebutting the stand taken up by learned counsel for petitioner submitted that existence of other shops in the area does not help the petitioner inasmuch as the proceedings under Section 133 Cr.P.C were drawn against the petitioner not because he was carrying out commercial activities but because his activities were a constant source of noise pollution and public nuisance, a distinction the petitioner has failed to grasp. In so far as the purported NOCs by the schools in question is concerned, the factual situation on the ground, verified in terms of the procedure contemplated under Section 133 Cr.P.C, cannot be washed away simply in the face of unproved and unverified pieces of paper issued by the management of two schools who cannot claim to speak on behalf of even the students, let alone the entire neighborhood.

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Learned AGA seconded the arguments raised by learned counsel for respondent no. 2.

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After hearing the rival submissions extended by learned counsels for the parties and perusing the records, this Court finds that the order which has been challenged through the instant petition i.e. order dated 28.10.2023 through which it was only the

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direction for the petitioner with regard to his shop, to unload the iron material outside radius of 200 meters between 4 A.M. to 7 A.M only, is fully justified. However, there is hardly any restriction over the conduction of the business of petitioner through shop concerned and as such there is hardly any grievance available to the petitioner for challenging the same. The impugned orders have been passed after considering the entire evidence on record and are fully justified.

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The petition thus lacks merit and is hereby dismissed . However, it is made clear that through order dated 28.10.2023 there may not be any other impediment or will be created by the authorities for operation of the shop concerned.

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Order Date :- 18.11.2024 Shaswat

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Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad

Vidit Jaiswal v. State of Up and Another

Case brief

What is this about?

What did the court decide?

Vidit Jaiswal v. State of Up and Another

Case brief

What is this about?

What did the court decide?

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