Madhya Pradesh High Court
Nitin Sahu vs Suresh Kumar Sahu on 19 January, 2018
THE HIGH COURT OF MADHYA PRADESH
CRR-3834-2017
(NITIN SAHU Vs SURESH KUMAR SAHU)
3
Jabalpur, Dated : 19-01-2018
Shri Sankalp Kochar, learned counsel with Shri Rohan Harne,
learned counsel for the petitioner.
Shri A.T. Faridee, learned counsel for the respondent.
The petitioner/complainant has preferred this revision under Section 397 read with Section 401 of Cr.P.C. to challenge the order dated 07/12/2017, passed by the Third ASJ, Raisen in Cr.R. No.71/17, wherein the order dated 13/11/2017, passed by SDM, Bareli in Criminal Case No.02/SDM/Bareli/16-17 under Section 133 of Cr.P.C. has been set aside.
The factual matrix of the case given rise to the filing of the present petition in brief is that, the respondent and the petitioner are the neighbours. The respondent is running a flour mill and rice mill in his house. The petitioner filed a complaint under Section 133 of Cr.P.C. before the Sub-Divisional Officer, Bareli, in which he contended that the petitioner's house is adjacent to the respondent's house. Respondent is running a flour mill and rice mill with his motor of 25 horse power when rice mill is being run, it makes a high sound which creates nuisance for the petitioner and his family members. It also creates vibrations in the house. Petitioner's old mother could not be able to take rest because of the noise of the mills and fallen ill. Petitioner's small children are not being able to study properly nor they are able to sleep properly. Their hearing power has been reduced because of the high noise created by the mills. The neighbour residents are also effected by the noise pollution and the mill, therefore, effect the health adversely to all the family members of the petitioner. Hence, he requested for legal action under Section 133 of Cr.P.C.
The respondent/the owner of the flour and rice mills vehemently opposed the contentions and raised the plea that the rice mill has been functional since 1998 with permission from the Panchayat and only 10 horse power connection has been obtained for running of the mill. The mill is the only source of income for the respondent. The neighbours and the other residence are using the rice and flour mill and have never raised any objection stating that it inconvenient for them. Therefore, the petitioner due to personal grudge had filed this application has been dismissed.
The learned SDM sought the inspection report from the Patwari subsequently, he sought report from the Tehsildar. The Patwari in his report mentioned that there was noise when the flour mill and rice mill are in use. After running engine, he went to the house of the complainant and observed the noise of the mills and also observed that there are vibrations in the wall. Subsequent thereto, another report was called from the Tehsildar, Bareli. He has submitted in the report that the mill is functional since 1998 but no such document has been filed. He also mentioned that the vibration in the wall is very nominal. The noise at the house of the petitioner observed after running the mill is very nominal. There is three phase connection and the mill is being operated from 9am to 7pm. The Naib Tehsildar went to the extend of examining whether the petitioner has any document of ownership but no such document has been produced by the petitioner.
The learned SDM vide the order impugned observed that noise and vibration is there in the house of the petitioner.
Keeping in view the same, the SDM directed the respondent not to run the rice mill.
The respondent has preferred the revision, the Revisional Court after considering the same, set aside the order of the learned SDM, therefore, the present petition has been filed.
The petitioner claimed that the report of the Halka Patwari is clear and it is axiomatic that the rice mill run by the respondent in the residential area is causing public nuisance. The order of the SDM restrained the respondent to run the rice mill. However, the Revisional Court has set aside the order without any apparent reason.
On behalf of the respondent, the petition is contested on the ground that the rice mill and flour mill is running since 1998, no such nuisance was created. Because of the enmity between the petitioner and the respondent, the petitioner has filed this application. It is claimed that the petitioner for wrecking his vengeance has filed this application. It is also contended that the Sub-Divisional Magistrate did not pass any preliminary order and, therefore, the order impugned is bad in the eyes of law.
Counsel for the respondent has placed reliance in the case of C.A. Avarachan Vs. C.V. Sreenivasan reported as 1960 SCC (Cri.) 174, Hon'ble the Apex Court in this case has observed that, the Sub- Divisional Magistrate was required to draw a preliminary order for initiating the proceeding under Section 133 of Cr.P.C. and without following the procedure provided for by Section 138 of Cr.P.C., the order made by the Sub-Divisional Magistrate is unsustainable. It would be appropriate to mention here that no such plea was taken in the Revisional Court, therefore, the respondent cannot take such plea at this stage.
Respondent has further placed reliance in the case of Subodh Kumar Vs, Vipin Kumar decided by this Court on 26/08/2015, in which, the plastic industry running in a house situated at a place held to be causing pollution and health hazard to the citizen was held to be not a public nuisance but a private nuisance and there is no warrant to exercise the powers under Section 133 of Cr.P.C. It is further held that the respondent may approach the Green Tribunal if there is a public nuisance.
The facts in the present case claimed to be a nuisance of running the flour mill and rice mill which causes noise and vibrations in the house, therefore, his old mother did not rest properly and fallen ill. His small children are not able to study properly besides they are losing their hearing capacity. Therefore, the above citations are not applicable in the present case.
Respondent also placed reliance in the case of Ramavtar Vs. State of Uttar Pradesh decided by the Hon'ble Apex Court on 03/05/1962 in Criminal Appeal No.79/60, wherein it has been held that, auctioning of the private house was not held to be a nuisance under Section 133 of Cr.P.C. merely because of the discomfort caused by the noise.
The petitioner has placed reliance in the case of Krishna Gopal Vs. State of Madhya Pradesh reported as 1985 SCC OnLine MP 188, in which the Indore Bench of this Court has observed that, the nuisance to the community at large is not by installation of a boiler but also by the factory itself. In such circumstances while affirming the order passed by the Revisional Court, the original order by the Sub- Divisional Magistrate was modified and restored by confirming the same.
While considering the case in hand, it would be appropriate to mention here that, where the running of the flour and rice mill in the neighbour of the petitioner causing noise and vibrations in the house effects the health of the people in the family of the petitioner, the rice mill running in the vicinity is a nuisance. When the running of such mill is hazardous or injurious to the senior citizen in the vicinity certainly it would be termed as injurious to her health, therefore, it amounts to nuisance.
In this regard, it would be appropriate to refer the case of State of M.P. Vs. Manji Raghu reported as (1964) 2 Cr.L.J. 94 and Bankelal Gupta Vs. Anand Saxena reported as 2008 Cr.L.J. 1772 (1775) (MP), this Court would not be oblivious to the pathetic conditions of the old persons and the small children who are not able to study and whose hearing capacity effects in such a tender age, therefore, the petition on the above analysis and following the case laws, is allowed. It is directed that the respondent is allowed to run the flour mill only from 9 am to 7 pm. The order of the SDM, Raheli is restored.
The revision is, therefore, disposed accordingly.
(SUSHIL KUMAR PALO) JUDGE RS