Gujarat High Court
Mohmedhanif Kasambhai Beewala, Owner, ... vs Bhagubhai S Gohil on 21 November, 2024
NEUTRAL CITATION
R/SCR.A/897/2013 ORDER DATED: 21/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 897 of 2013
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MOHMEDHANIF KASAMBHAI BEEWALA, OWNER, KULSUM POULTRY
FARM
Versus
BHAGUBHAI S GOHIL & ORS.
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Appearance:
MR MANOJ SHRIMALI(2331) for the Applicant(s) No. 1
MR ADIL R MIRZA(2488) for the Respondent(s) No. 1,2,3
MS.MONALI BHATT APP for the Respondent(s) No. 5
RULE SERVED for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 21/11/2024
ORAL ORDER
1. Heard learned advocate Mr.Manoj Shrimali for the petitioner, learned advocate Mr.Adil Mirza for respondent Nos.1 to 3 and learned APP Ms.Monali Bhatt for respondent-State.
2. Considering the facts and circumstances of the case and with consent of learned advocates for the parties, the present petition is taken up for final disposal. Page 1 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024
NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined
3. By way of the present petition, petitioner has challenged the order dated 09.11.2011 passed by the learned Sub Divisional Magistrate, Valsad in Nuisance Case No.4 of 2011 and common order dated 23.01.2012 passed by the learned Additional Sessions Judge, Valsad in Criminal Revision Application Nos.52 and 53 of 2011.
4. Brief facts narrated in the present petition are as under:-
4.1 Petitioner is carrying on business of selling chicken since last 25 years. Petitioner has been running business in the name of 'Kulsum Poultry Farm' since last 19 years. Petitioner is not engaged in breeding chickens at the poultry farm, but instead he purchases chickens from outside and sells them within one or two days.
4.2 Petitioner is having space for keeping only 200 to 300 chickens. The total area of farm is approximately Page 2 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined 2,200 square feet, which can accommodate upto 200 chickens. There are other poultry farms and shops operating in village as of now. The farm is not surrounded by residential units on three sides only one side has residential units, which are situated 300 feet away from the petitioner's poultry farm. Respondent Nos.1 to 3 filed an application before the Sub Divisional Magistrate, Valsad seeking an order to prevent the petitioner from causing a nuisance by closing the poultry farm.
4.3 The Sub Divisional Magistrate (SDM), Valsad has received a report dated 24.06.2011 from Police Sub Inspector, Valsad Rural Police Station, that poultry farm of petitioner i.e., Kulsum poultry farm and the farm of other accused i.e., Darshan Poultry farm have been started functioning again. Earlier, vide order dated 30.12.2010, the Sub Divisional Magistrate (SDM), Valsad has ordered to shut down these two farms for a period of 60 days.Page 3 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024
NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined 4.4 The complainant dated 15.06.2011 made a complaint before the Superintendent of Police, Valsad that accused did not comply with the prior order dated 30.12.2010 of Sub Divisional Magistrate (SDM), Valsad. Therefore, in result of disobedience, complainant asked for appropriate action by removing the poultry farm and to initiate proceedings under Section 188 of Code of Criminal Procedure, 1973.
4.5 Therefore, the Sub Divisional Magistrate (SDM), Valsad issued notice dated 08.08.2011 to both accused. The petitioner replied to the said notice on dated 20.09.2011, but accused no.1 did not give any reply to the said notice.
4.6 The Sub Divisional Magistrate (SDM), Valsad vide letter dated 20.09.2011 called for a report of Executive magistrate, District Health Officer as well as Gujarat Pollution Control Board concerning the safety of Page 4 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined the residents residing in the said area. In addition to that, the Sub Divisional Magistrate (SDM), Valsad has ordered the accused to shut down the farms and to prevent a public nuisance within the 7 days.
4.7 In result, the Sub Divisional Magistrate (SDM), Valsad registered Nuisance Case No.4/11 and issued order dated 20.09.2011 directing the accused to immediately stop poultry farm within 7 days. By interim Order dated 27.09.2011, the accused was ordered to close the farm. The Sub Divisional Magistrate (SDM), Valsad passed impugned order dated 09.11.2011 confirming the order dated 27.09.2011. Being aggrieved by the said Order dated 09.11.2011, accused no.1 preferred Criminal Revision Application No.52/2011 and accused no.2 preferred Criminal Revision Application No.53/11 before the learned Additional Sessions Court, Valsad. The learned Additional Sessions Court vide impugned Order dated 23.01.2012 Page 5 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined rejected both revision applications by common order. Being aggrieved, the petitioner-accused no.2 before this Court. The accused No.1-Darshan Polutry Farm, did not challenge the order dated 23.01.2012.
5. Learned advocate for the petitioner submitted that the petitioner is carrying on business of selling chicken for about 2 years and operating under the name of 'Kulsum Poultry Farm'. It is submitted that the petitioner is not involved in breeding chickens in the poultry farm but he is purchasing chickens from outside and selling them within one or two days. It is further submitted that, residential units are not located on three sides of the farm, with only one side having residential units at a far distance.
5.1 It is further submitted that respondent Nos.1 to 3 filed an application before respondent No.4-Sub Divisional Magistrate, Valsad seeking an order to prevent Page 6 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined the petitioner from causing a nuisance by closing the poultry farm. An interim order was passed on 30.12.2010 directing the petitioner to stop the activities of poultry farm for a period of 60 days. Thereafter, respondent Nos.1 to 3, filed another application on 30.06.2011 seeking further action before respondent No.4. Respondent No.4 passed an interim order on 27.09.2011, directing the petitioner to close the poultry farm for a period of 7 days. 5.2 It is further submitted that, petitioner complied with both the orders i.e. order dated 30.12.2010 and the order dated 27.09.2011. However, on 01.11.2011, respondent Nos.1 to 3, filed another application alleging that the petitioner continued to operate the poultry farm which is confirmed vide order dated 27.09.2011. 5.3 A Criminal Revision Application No.53 of 2011 came to be filed by the present petitioner challenging the order dated 09.11.2011 before the learned Additional Page 7 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined Sessions Judge, Valsad alongwith the interim relief application which came to be rejected by the learned Sessions Judge on 23.01.2012.
5.4 Learned advocate for the petitioner further submitted that the learned Additional Sessions Court has not considered the report dated 14.10.2011, which clearly indicates that the investigating team did not detect any smell at the poultry farm and also found that there was no selling of chicken and the vehicle which was used for transportation was clean and well-maintained. It is submitted that the learned Additional Sessions Court, in a routine manner, confirmed the order dated 30.12.2010 passed by the learned Sub-divisional Magistrate, Valsad. 5.5 It is further submitted that, except respondent Nos.1 to 3, no other residents of the surrounding locality have raised any grievance or complaint about the nuisance Page 8 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined caused by the petitioner. It is submitted that the poultry farm was constructed after obtaining permission from the Gram Panchayat.
6. Per contra, learned advocate for respondent Nos.1 to 3 submitted that, the Sub-divisional Magistrate, while passing the order dated 30.12.2010, considered the report dated 07.10.2010 submitted by the Gujarat Pollution Control Board, Vapi. Based on this report, the learned Magistrate directed the petitioner to close the poultry farm for a period of 60 days, and the said order was not assailed by the petitioner. Thereafter, on 30.06.2011, another application was filed by respondent Nos.1 to 3 against the present petitioner as well as against 'Darshan Poultry Farm' alleging non-compliance with the order dated 30.12.2010 and requested the Prant Officer to initiate the proceedings under Section 188 of the Criminal Procedure Code.
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NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined 6.1 It is further submitted that Sub-divisional Magistrate- respondent No.4, vide order dated 27.09.2011, again directed to close the poultry farm for a period of 7 days, and after the said period, petitioner again started with purchasing and selling chicken at the poultry farm. After considering the report of Gujarat Pollution Control Board dated 07.10.2010, and also a report of the Mamlatdar dated 20.05.2010, Sub Divisional Magistrate directed the petitioner to close poultry farm by invoking the provisions of Section 138 of the Criminal Procedure Code.
6.2 It is further submitted that when two Courts below have concurrently held that the petitioner has committed an offence under the said Act and also found that a nuisance was created pursuant to the business of selling chicken at the poultry farm, this Court may not interfere in the findings of fact which has been arrived at Page 10 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined by the Courts below.
6.3 It is further submitted that respondent Nos.1 to 3 filed a complaint against the petitioner as well as 'Darshan Poultry Farm'. By a common order dated 09.11.2011, poultry farm of the petitioner as well as the owner of Darshan Poultary Farm were directed to be closed down. The owner of Darshan Poultry Farm challenged the impugned order dated 09.11.2011 by way of an application being Special Criminal Application No.2419 of 2012. However, On 03.11.2012, 'Darshan Poultry Farm' withdrew the said application. It is further pointed out by learned advocate for respondent Nos.1 to 3 that there is no illegality committed by the Courts below. Therefore, this Court should not interfere in the findings of fact.
7. Per contra, learned APP Ms.Monali Bhatt has placed reliance upon the decision of Mor. Iqbalbhai Page 11 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined Ibrahimbhai & Ors. Vs. State of Gujarat, reported in 2016(0)AIJEL-HC236429 and submitted that there is no substance in the application and both the Courts below after considering the reports of Mamlatdar and Gujarat Pollution Control Board, have passed the order impugned. Nothing contrary has been pointed out by the learned advocate for the petitioner whereby this Court can interfere in the findings of fact. Therefore, she has prayed for dismissal of the present petition.
8. In the case of Mor. Iqbalbhai (supra), this Court has while discussing the question of public nuisance and the proceeding initiated under Section 133 of the Code, has observed in para 11 and 12 as under:-
"11. The guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present. "All power is a trust that we are accountable for its exercise that, from the people, and for the people, all springs and all must exist". The conduct of the trade must be Page 12 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined injurious in praesenti to the health or physical comfort of the community. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and occupation is in fact injurious to the health or the physical comfort of that community, an order under Section 133 cannot be passed. A conjoint reading of Sections 133 and 138 of the Code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under Section 133.
12. Section 133 of the Code as noted above appears in Chapter X of the Code which deals with maintenance of public order and tranquility. It is a part of the heading "Public nuisance". The term "nuisance" as used in law is not a term capable of exact definition and it has been pointed out in Halsbury's Laws of England that: "even in the present day there is not entire agreement as to whether certain acts or omissions shall be classed as nuisances or whether they do not rather fall under other divisions of the law of tour"."
9. Having considered the submissions and materials placed on record. It surfaces on record pursuant to the complaint of respondent Nos.1 to 3 that, the report of the Gujarat Pollution Control Board and Mamltdar, were called Page 13 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined for. After considering the report of the Gujarat Pollution Control Board, petitioner's poultry farm was directed to be closed for a period of 60 days. Thereafter, vide order dated 27.09.2011, poultry farm of the petitioner was directed to be closed down for a period of 7 days. The Sub-divisional Magistrate, Valsad, has considered both the reports, and thereafter directed the petitioner to close down the poultry farm. The said decision was upheld by the learned Additional Sessions Court. The learned Additional Sessions Court has affirmed the report of Mamlatdar, Valsad dated 20.05.2010 as well as the report of Gujarat Pollution Control Board, dated 07.10.2010 and rejected the petitioner's Criminal Revision Application. The learned Additional Sessions Court has considered the reported 20.05.2010 submitted by the Mamlatdar and confirmed the nuisance aspects which has been caused by the Petitioner. The second poultry farm namely Darshan Poultry Farm whose owner is opponent No.1. Mohanbhai Page 14 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined Nathubhai Patel has not challenged the order dated 23.01.2012 passed by the learned Additional Sessions Court. And has accepted the decision of closure of poultry farm on the ground of public nuisance. Merely because the petitioner is having a licence to run a poultry farm, cannot claim to have a right to create a public nuisance, whereby, the residents of the surrounding area of poultry farm undergo a nuisance which is hazardous to public health. The learned Courts below have considered the report of the Gujarat Polution Control Board as well as report of the Mamaltdar and thereafter ordered the closure the both the poultry farms. On perusal of the materials placed on record, I do not find any reason in interfere in the finding of fact which has been arrived at by two Courts below. In absence of any irregularity or illegality being committed by the learned Additional Sessions Court in arriving at the conclusion, this Court has a very limited power to quash and set aside the impugned order. When Page 15 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024 NEUTRAL CITATION R/SCR.A/897/2013 ORDER DATED: 21/11/2024 undefined both the Courts below have concurrently found that the petitioner is involved in committing the offence of causing public nuisance, this Court while exercising the powers under Section 482 of the Criminal Procedure Code is not inclined to interfere in the findings of fact which has been arrived at after considering the evidence on record.
10. In view of the above discussions, the present petition lacks merits and deserves to be dismissed. It is hereby dismissed. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs.
(D. M. DESAI,J) MANOJ Page 16 of 16 Uploaded by MANOJ KUMAR(HC01092) on Wed Dec 11 2024 Downloaded on : Sat Dec 14 01:22:26 IST 2024