IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL W.P.M.S. 2605 of 2001 (Old No. 5637 of 1999) Smt. Khursheed Bano .. Petitioner. Versus State of U.P. and 3 others .. Respondents. Mr. Gopal Krishna, Advocate for the petitioner. Mr. B.K. Gupta, Advocate for respondent No.4. Dated: 26-6-2008 Hon’ble B.C. Kandpal, J. This petition, under Article 226 of the Constitution of India, has been preferred for issue of a writ, order or direction in the nature of certiorari quashing the order dated 26.8.1998, passed by S.D.M. Kashipur and order dated 1.9.1999, passed by III Additional Sessions Judge, Nainital. 2- The record shows that proceedings U/S 133 Cr.P.C. were initiated by the Executive Magistrate/ S.D.M. Kashipur on the report dated 20-10-1997 forwarded by Tehsildar, Kashipur. The S.D.M. got the matter inquired by Naib Tehsildar, Jaspur at the spot. The Naib Tehsildar also forwarded his report. The learned Magistrate passed conditional order and after affording opportunities to the parties, confirmed the conditional order dated 28-1- 98, vide impugned order dated 26-8-1998, and directed the opposite party/petitioner to close the floor mill, cotton mill, expeller and spice-grinding machine, situated in Mohalla Dilla Singh, Jaspur, from immediate effect and in future also not to run these machines. The learned S.D.M. also directed that the machines in question be removed from the present place within 15 days, failing which the order of the court shall be implemented at the expenses of the opposite party. 3- Feeling aggrieved with the aforesaid order the opposite party preferred criminal revision before the Additional Sessions Judge, Nainital, who vide impugned judgment and order dated 1-9-1999, dismissed the same. 4- The opposite party/petitioner has preferred this petition for quashing the aforesaid judgment and orders with the allegations that the petitioner has been carrying on the business for the last more than fifteen years and he has also been granted license by the Nagar Palika, Jaspur to carry on the business. It was further alleged that original document of the Pollution Board was not filed and no employee/person was examined in the court to prove the said document and in this way the conclusion drawn by the Magistrate as well as the learned Sessions Judge is based on inadmissible evidence and cannot be sustained in the eyes of law. 5- The respondent No.4, filed counter affidavit in the writ petition alleging therein that the courts below have passed the impugned orders by applying legal aspects of the matter. The order passed by the learned S.D.M. was based on the report of P.S. Jaspur and Tehsildar Kashipur. There was ample evidence of witnesses as well as reports of responsible officers that the business of the petitioner is causing a nuisance not only to the nearby people, but all the passerby. 6- Rejoinder affidavit has been filed by the petitioner alleging therein that the averments made in the counter affidavit by the respondent No. 4 are not correct and reiterated the facts mentioned in the petition. 7- Heard learned counsel for the parties and perused the record. 8- Perusal of record shows that the respondent No.4 moved application U/S 133 Cr. P.C. to the effect that the petitioner who is carrying on the business of flour chakki, Expeller and cotton machine, is causing the hindrances to the public at large and consequently desired that the business of the petitioner should be closed. The S.D.M. concerned passed a conditional order U/S 133 Cr. P.C. Parties filed objection before the trial Magistrate and produced evidence. The learned Magistrate confirmed the conditional order vide final order dated 26-8-1998 and passed the order to remove the nuisance from the public place which was injurious to the health and physical comfort of the community. Pollution Control Board, Lucknow also reported the matter to the District Magistrate, Udham Singh Nagar mentioning therein that the Regional Office Haldwani inspected the industry in question on 1.12.95 and found that the old-used cotton is spreading in the air which is hazardous and the petitioner is causing serious hindrance to the people living nearby and also to the passerby. The flour mill, Expeller, spice grinding machine established on the ground floor, are also creating sound-pollution and nuisance. The Executive Officer, Nagar Palika also submitted the copies of report of Junior Engineer and Health Inspector in which recommendation was made for taking action to prevent the nuisance by the use of the aforesaid machines. Besides this, the Naib Tehsildar Jaspur and S.O. Jaspur also submitted report mentioning the fact of nuisance by use of the machines in question. Therefore, there was ample evidence before the learned Magistrate that on account of spreading of cotton in the air was hazardous to all the people living not only in the neighbourhood but also at some distance and passersby too. The learned Magistrate has rightly exercised its jurisdiction in order to save the public at large and the same does not call for any interference by this court. The learned Sessions Judge also recorded categorical finding while endorsing the conclusion arrived at by the learned Executive Magistrate. I do not find any illegality in the impugned judgment and orders passed by the courts below. 9- The petition lacks merit and is accordingly dismissed. The impugned judgment and orders passed by both the courts below are confirmed. 10- The interim order, if any, stands vacated. (B.C. Kandpal, J.) ISB