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Criminal Revision No. 884 of 1970, decided on 23rd Septem ber 1970.

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---- Ss. 107 & 144 --Breach of peace‑Dispute between fruit‑sellers of two rival markets leading to institution of security proceedings under S. 10.7, Cr. P. C. but eventually ending on compromise being filed by parties anti no apprehension of breach of public tranquillity left over‑ Sub‑Divisional Magistrate being Chairman of Municipal Committee running one of markets subsequently promulgating order under S. 141, Cr. P. C. prohibiting continuance of business in market other than that of Municipal Committee‑‑Magistrate having discharged parties earlier in proceedings, under S. 107, held, had no cause left hake action. under S. 144‑‑rllagistratc's order obviously made to protect interest of Municipal Committee‑Order, held, prima facie. Illegal in circum stances.

S. 439‑Revision Sub‑Divisional Magistrate, ex‑officio Chairman of Municipal Com mittee promulgating order under S. 144, Cr. P. C. prohibiting continuance of business at market other than that set up by Com mittee‑Such order made to protect interest of tenants of new fruit market, set up by Municipal Committee with knowledge that parties had already compromised and no apprehension of breach of public tranquillity existed‑Contention that High Court should not act in exercise of its revisional jurisdiction in matter, since remedy by way, of review was available under subsection (4) of S. 144, Cr. P. C:‑Held : Order being illegal passed on back of petitioner, in disregard of principle of audi alteram partem and to jeopardy of their business, was open to revision‑Revision accepted and Magis trate's order quashed‑Criminal Procedure Code (V of 1898), S. 561‑A:

Ch. Khalil-ur‑Rahman for Petitioner.

Sh. Abdun Nazir for the State.

An order under section 144, Cr. P. C. was promulgated by S. D. M., Nankana Sahib on 24th of August 1970 whereby he prohibited the continuation of business by the petitioners in the market other than the market established by the Municipal Committee. The order was challenged through a revision petition in this Court under' section 439, Cr. P. C. The revision petition was admitted and notice was also issued in the miscellaneous application for stay. The application for stay has been fixed for hearing today. Since for the decision of the application one 'has to go into the merits of, the case, I would therefore;' dispose of the revision petition itself by this order.

2 There was a dispute between the fruit‑sellers of the old vegetable market Nankana, Sahib, and the vegetable, market set up by the Municipal Committee. The, parties were proceeded against under, section 107/151 of the Cr. P. C. These proceedings were' pending before the D. M. and were compromised by the parties: The order of discharge was passed by the learned S. D: M. oil 21st of August 1970, therefore, no apprehension of any disturbance of public tranquillity, or affray was left in the field. The learned S. DM. who happens to be the Chairman of the Nankana Sahib Municipal Committee, promulgated the impugned order and it is alleged by the petitioners that this order was made in order to protect the interests of the persons‑carrying on business in the vegetable‑fruit market set up by the. Municipal Committee. The submission has a considerable force for if the learned Magistrate had passed an order' of discharge of the parties, there was no cause left for him to have taken action under section 144 of the Cr. P. C. The order, therefore seems to be illegal on the very face of it.

3. Serious objection has been raised by the learned counsel appearing on behalf of the State;' that this' Court should not exercise its revisional jurisdiction since the petitioners can move the learned S.D. M. under subsection (4) of section 144, Cr. P. C. the objection is ill‑founded. These can be hardly any possibility, of getting a relief at the hands of the S: D. M. who, has promulgated an order under section 144, Cr. P. C. knowing that the parties have compromised only three days before passing the order. The principle of audi alterm partem has also been violated. Rights of these persons who are carrying on business in the old Market since long have been jeopardised by an illegal order made obviously to protect that interests of the merchants of the fruit market set, up by the Municipal Committed; I, therefore, accept this revision and quash the order passed by the learned Magistrate.

Revision accepted.

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