Fakirmohammad vs State

Nevaskar, J.—Additional District Magistrate Indore passed an order against the petitioners u/s 133 Criminal Procedure Code stopping them from carrying on their trade of selling meat at the place where they are doing so in the locality known as Patnipura City Indore on the ground that the manner in which they were conducting themselves while carrying on this trade was Injurious to the health of the persons residing in the neighbourhood and constituted nuisance which ought to be stopped.

The question involved in this case has a history behind. The petitioners are batchers and sell meat in the locality known as Patnipura at their respective shops. In the year 1953 a Challan was submitted against two of the petitioners and some others u/s 133 of the Criminal Procedure Code and this was registered as Criminal Case No. 7621 of 1953. On the application of the petitioners and others who were involved in that case the learned Magistrate required them to carry on their trade subject to certain specific directions given by him. They agreed to abide by these directions and gave undertaking that they would not carry on the trade so as to cause any nuisance. In view of the undertaking given by them no specific final order was passed in that case. Thereafter there were complaints against these petitioners and others. A petition was submitted to the Collector signed by several persons of the locality complaining against the manner in which the trade was being carried on by the petitioner to the nuisance of the residents there and of the passers by. In view of this, the Police after investigation have submitted the Challan for seeking the orders of the Court for stoppage of the shops altogether.

The opponents who are the petitioners before me have denied the allegations made in the Challan that they were causing any nuisance and alleged that this petition was made by persons who wanted to deprive them of their means of livelihood. They denied the fact that there was any nuisance or injury to public health by reason of the manner in which they were carrying on their trade.

On behalf of the prosecution several witnesses were examined. The effect of the statements of these witnesses is that the petitioners are said to expose meat for sale without using any covering. They slaughter goats In that very locality, They allow pieces of meat to lie hither and thither and throw away the rotten pieces in the drains nearby.

Mr. Balwantsingh who appears for the petitioners has assailed the evidence of these witnesses mainly on the ground that all these eight or ten witnesses who are examined belong to a caste which is not meat-eater and that in view of their notions it was most likely that they would like the total closure of these shops there. According to him the prosecution ought to have examined at least some of the persons of the locality who are meat-eaters. If such witnesses, if examined, would have deposed against the conduct of the petitioners there was some justification for complete stoppage of their business.

His further argument is that the defence evidence indicated the existence of these shops in the locality for the last several years and there were no complaints so far about any nuisance being caused. He urged that the matter appears to have been raked up on account of some news items appearing. In a newspaper ''Jagran'' and that both the Courts below have approached the question with pre-conceived notions.

He contended in the alternative that at any rate the Court was not justified in totally stopping the trade of the petitioners. It should have regulated the same by giving specific directions of such nature as to avoid the possible nuisance or injury.

It is no doubt true that the effect of the order passed by the Lower Court is that the petitioners would be deprived of the means of their livelihood for the present at least but the question is as to whether the Lower Court was within its rights in passing the order having regard to the circumstances established on the record or not.

The discretion in passing the order was that of the Magistrate and if the discretion is exercised in a proper and legal manner it would not be within my province to interfere in a revision-petition. I will therefore confine myself to considering whether the Lower Court did exercise its discretion legally or not.

The position appears to be that the locality in question is practically a part of the City of Indore although it is outside the Municipal limits of the City Municipality. Within the Municipal limits of the City of Indore animals are slaughtered at a particular place. Steps are taken for avoiding nuisance or injury to public health. Even the selling of meat is properly regulated. The locality in which the shops of the petitioners are situated being technically outside the Municipal limits they are not subject to these limitations. It also appears that at an earlier stage attempt was made to impose certain conditions. Undertakings were given by some of them engaged in the trade including two of the petitioner that they would not carry on their trade so as to cause any nuisance in the locality. However as the evidence indicated the nuisance continued. It cannot be disputed that the trade of this nature requires restrictions of such a nature as not to cause nuisance or become injurious to the health of the persons residing in the locality. The evidence in the case clearly indicates that the conduct of the petitioners and those who are engaged in a similar trade in the locality is such that it causes nuisance to the persons who reside in the locality as well as to the passers by. It also works injury to the residents there. Mr. Balwant Singh''s argument that the question of nuisance ought to be examined from point of view of persons other than those who are not meat-eaters may be of some weight, but it cannot be said that the matter has got to be looked at from the point of view of meat-eaters alone. Moreover the evidence adduced on behalf of the defence does not indicate that the nuisance is more of a psychological nature than anything else. The acts of the petitioners said to involve nuisance are specifically deposed to by the witnesses and it is on the basis of those acts that the matter will have to be examined as to whether they constitute nuisance or not. Even looked at from this point of view it is difficult to say that the trying Magistrate was not justified in holding that the continuance of these shops at the locality, where they are situated, constitutes nuisance and they should be stopped altogether. The evidence has been examined by both the Courts below and they have arrived at a finding on this question of fact which I am not inclined to interfere with.

As regards the second contention which Mr. Balwantsingh put forward in the alternative, I think that too had been considered by the Magistrate at some stage and he had attempted to give certain directions and had taken undertakings but St practically proved to be of no use.

A somewhat similar situation arose in the case reported in Maksood Ali and Others Vs. President, Union Board, Maksood Ali and others vs. President, Union Board, Garha. It was held in that case that the Magistrate had exercised his discretion in totally stopping the shops in a legal manner and it was not within the province of the High Court acting as a Court of revision to interfere with it or to impose conditions by ordering regulation of trade. I agree with this view.

The question as to whether there should be regulation or total stoppage of the trade was a question entirely for the learned Magistrate to consider. He, having considered that the total stoppage was essential, was justified in passing the order he did.

For these reasons there is no justification for me to interfere in revision.

The petition is therefore dismissed.