Gourav And Ors vs State And Ors. (2024:Rj-Jd:47448) on 20 November, 2024

[Cites 17, Cited by 0]

Rajasthan High Court - Jodhpur

Gourav And Ors vs State And Ors. (2024:Rj-Jd:47448) on 20 November, 2024

1. By way of the instant criminal misc. petition filed under Section 482 of Cr.P.C., a challenge has been made to the order dated 27.06.2015, whereby learned Additional Sessions Judge, Anoopgarh Camp Gharsana, District Sri Ganganagar dismissed the Criminal Revision No.64/2015 and upheld the order dated 16.12.2014 passed by the learned Sub Divisional Magistrate, Gharsana, District Sri Ganganagar (hereinafter to be referred as 'the Magistrate') in Case No.Nil/2014, whereby the complaint filed under Section 133 of Cr.P.C. by the respondent No.4 was accepted (Downloaded on 26/11/2024 at 09:33:23 PM) [2024:RJ-JD:47448] (2 of 7) [CRLMP-2715/2015] and direction for removal of the encroachment made by petitioner and the respondent No.4 was passed.

2. Brief facts of the case are that a complaint under Section 133 of Cr.P.C. was filed at the instance of respondent No.4 alleging therein that the petitioner runs a business of furniture and used to cut wood by a saw machine which generates significant noise and dust, thereby creating a public nuisance. Furthermore, the encroachment made by the petitioner also restricts public access to the way. Upon which, the police investigated the matter and submitted its report before the learned Magistrate, who vide order dated 16.12.2014 ordered for removal of the encroachments made by the petitioner as well as respondent No.4. Against the said order dated 16.12.2014, the petitioner preferred a revision petition, which came to be dismissed by the learned Sessions Judge vide order dated 27.06.2015 affirming the order of learned Magistrate. Hence, this criminal misc. petition.

3. Learned counsel for the petitioner submits that the learned Magistrate as well as learned Sessions Judge have not gave any finding of this effect that the saw machine, from which the petitioner used to cut wood, generates significant noise and dust, thereby creating a public nuisance. It is further submitted that in compliance of the directions issued by the learned Magistrate, the petitioner had removed the encroachments, which did not create any nuisance. Thus, the instant criminal misc.

petition may kindly be allowed and orders under assail may kindly be quashed and set aside.

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4. Learned counsel for the petitioner places reliance on the decision dated 22.09.2004 rendered by Hon'ble the Supreme Court in the case of Kachrulal Bhagirath Agrawal & Ors. Vs. State of Maharashtra & Ors. (Criminal Appeal No.1350/2003) reported in (2005) 9 SSC 36 and submits that Section 133 of Cr.P.C. provides for conditional order for removal of nuisance, which was elaborately discussed by Hon'ble the Supreme Court in the above referred case. The relevant part of that judgment is reproduced hereunder :-

"10*. A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquility. The chapter has been classified into four categories. Sections 129 to 132 come under the category of "unlawful assemblies".

Sections 133 to 143 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category covers Sections 145 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds, i.e. (i) public; and (ii) private. "Public nuisance" or "common nuisance" as defined in Section 268 of the Indian Penal Code, 1860 (in short the 'IPC') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. "Private nuisance" on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds - civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short "CPC"). Under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The (Downloaded on 26/11/2024 at 09:33:23 PM) [2024:RJ-JD:47448] (4 of 7) [CRLMP-2715/2015] second provides for summary proceedings under Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this section shall be called in question in any civil court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Sections 133 and 144 of the Code shows that while the former is more specific, the latter is more general. Therefore, nuisance specially provided in the former section is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort. It itself deals with physical comfort to the community and not with those acts which are not in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word "community" in clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with "public nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula.

11. The guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate (Downloaded on 26/11/2024 at 09:33:23 PM) [2024:RJ-JD:47448] (5 of 7) [CRLMP-2715/2015] 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 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".

13. In Vasant Manga Nikumba v. Baburao Bhikanna Naidu1 it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse, etc. The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately, irreparable danger would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of (Downloaded on 26/11/2024 at 09:33:23 PM) [2024:RJ-JD:47448] (6 of 7) [CRLMP-2715/2015] time. It does not deal with all potential nuisances and on the other hand applies when the nuisance is in existence. It has to be noted that sometimes there is confusion between Section 133 and Section 144 of the Code. While the latter is a more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. (See State of M.P. v. Kedia Leather & Liquor Ltd.2).

14. In the background of legal principles set out above, the judgment of the High Court does not suffer from any infirmity.

15. The residual question, however, is whether learned SDM could consider the suggestions, if any, given by the appellants, as to the manner in which goods can be stored or connected activities by passing order of a regulatory nature. This is permissible by the provisions itself which provide that SDM can regulate such activities. Therefore, without expressing any opinion on that matter for which material can be placed by the appellants before the learned SDM for appropriate orders in the matter, we direct that if any suggestion or alternative arrangement is brought to the notice of learned SDM, it shall be considered in its proper perspective in accordance with law.

16. With the aforesaid observations, the appeal is dismissed."

5. Learned Dy.GA opposes the prayer of the petitioner.

6. Heard learned counsel for the parties and perused the material as made available to this Court as well as the judgment ibid.

7. In view of the law laid down by Hon'ble the Supreme Court in the case of Kachrulal Bhagirath Agrawal (supra), this Court is of the view that the elements of nuisance were not present in the case in hand and the learned Magistrate has exceeded its jurisdiction in making the observation regarding commission of above offences by the petitioner and; therefore, the orders under assail are not sustainable in the eyes of law.

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8. Accordingly, the instant criminal misc. petition is allowed in the light of judgment rendered by Hon'ble the Supreme Court in the case of Kachrulal Bhagirath Agrawal (supra). The order dated 27.06.2015 passed by the learned Additional Sessions Judge, Anoopgarh Camp Gharsana, District Sri Ganganagar in Criminal Revision No.64/2015 as well as the order dated 16.12.2014 passed by the learned Sub Divisional Magistrate, Gharsana, District Sri Ganganagar in Case No.Nil/2014 are quashed and set aside.

9. Stay petition is disposed of accordingly.

(FARJAND ALI),J Abhishek Kumar S.No.61 (Downloaded on 26/11/2024 at 09:33:23 PM) Powered by TCPDF (www.tcpdf.org)

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Rajasthan High Court - Jodhpur