Gujarat High Court
Mor Iqbalbhai Ibrahimbhai & 4 vs State Of Gujarat & 2 on 23 September, 2016
Author: S.G.Shah
Bench: S.G.Shah
R/CR.RA/729/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 729 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MOR IQBALBHAI IBRAHIMBHAI & 4....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR MA KHARADI, ADVOCATE for the Applicant(s) No. 1 - 5
MR SHAKEEL A QURESHI, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 23/09/2016
CAV JUDGMENT
1. Rule. Learned advocate Mr.Shakeel A.Qureshi waives service of notice of rule for respondent No.3 and learned APP Mr.Manan Mehta waives Page 1 of 24 HC-NIC Page 1 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT service of notice of rule for respondent Nos.1 and 2.
2. Heard learned advocate Mr.M.A. Kharadi for the applicants, learned advocate Mr.Shakeel A.Qureshi for the respondent No.3 and learned APP Mr.Manan Mehta for respondents No.1 and 2.
3. Perused the record. The applicants herein have challenged the order dated 7.11.2015 by the Sub-Divisional Magistrate, Dhoraji in Cr.P.C. Case No.133/Case No.1 of 2015, which is u/s.133 of the Criminal Procedure Code, 1973 ('Code', for short).
4. Section 133 falls in Chapter X of the Code, which envisages certain provisions for maintenance of public order and tranquility. Part-B of such Chapter provides for "public nuisance" from Sections 133 to 143. The text of Section 133 is quite lengthy, but, at present, for the purpose of deciding this revision application, following part of Section 133 is material to be recollected herein:-
"133. Conditional order for removal of nuisance.
(1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers --
(a) xxxx xxxx xxxx xxxx ; or
(b) that the conduct of any trade or occupation or the Page 2 of 24 HC-NIC Page 2 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such, goods or merchandise should be removed or the keeping thereof regulated; or
(c) xxxx xxxx xxxx xxxx ; or
(d) xxxx xxxx xxxx xxxx ; or
(e) xxxx xxxx xxxx xxxx ; or
(f) xxxx xxxx xxxx xxxx , Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within time to be fixed in the order-
(i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
(iii)xxxx xxxx xxxx xxxx ; or
(iv) xxxx xxxx xxxx xxxx ; or
(v) xxxx xxxx xxxx xxxx ; or
(vi) xxxx xxxx xxxx xxxx ;
or, if he objects so to do, to appear before himself or some other Executive Magistrate Subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any civil court. Explanation. A "public place" includes also property belonging to the state, camping grounds and grounds left unoccupied for sanitary or re-creative purposes."
5. Bare perusal of the Section makes it clear that a District Magistrate or a Sub-Divisional Magistrate ('SDM', for short) or even Executive Magistrate specially is empowered by the State Page 3 of 24 HC-NIC Page 3 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT Government in this behalf may pass orders to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit for considering the conduct of any trade or occupation or the keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence may prohibit or regulate such trade or occupation or remove such goods or merchandise. The Section empowers the Magistrate even to make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal etc. and if he objects to abide by the directive orders as aforesaid, then, to summon him to appear before himself or some Executive Magistrate subordinate to him to show-cause that why the order should not be made absolute. Sub-section(2) of Section 133 imposes ban on questioning such order before any Civil Court.
6. The rest of the Sections in Part-B of the Chapter are also material to some extent, but Page 4 of 24 HC-NIC Page 4 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT instead of reproducing all the Sections, at present, it would be enough to recall the issues for which provision is made in such part, which includes:-
(1) Mode of service or notification of order; (2) Who has to obey the order i.e. person to whom the order is addressed to obey or show-cause; (3) Consequences of failing to obey such order; (4) Procedure to be followed where existence of public right is denied, which is considered as a nuisance;
(5) Procedure to be followed when person appears before the Magistrate;
(6) Power to furnish written instructions; (7) Procedure to be followed for making order absolute and consequences of disobedience of such order;
(8) Issuance of order of injunction pending inquiry and order to prohibit occupation or continuation of public nuisance;
7. Whereas Part-C of the same Chapter deals with almost similar provisions in case of urgent cases of nuisance or apprehended danger.
8. Section 144 empowers competent authorities listed herein above to pass appropriate orders for immediate prevention or speedy remedy of the issue. The Sub-section (2) of Section 144 even empowers the competent authorities to pass ex- parte order. Therefore, Part-B & C of Chapter X Page 5 of 24 HC-NIC Page 5 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT of the Code is a complete Code in itself for dealing with the public nuisance as enumerated in different provisions of these parts and bare reading of the provisions, makes it clear that such powers are wide enough so as to enable the competent authority to stop the public nuisance immediately and permanently.
9. Few judgments on the subject are also relevant to be referred herein before recollecting the factual details for determination of dispute and issue on hand, they are as under:-
A) AIR 2003 SC 3236 between State of Madhya Pradesh v. Kedia Leather & Liquor Ltd.
wherein Hon'ble Supreme Court of India has observed as under:-
"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 damage would be done to the public. It does not deal with all potential nuisance, and on the other hand applies when the nuisance is in existence. It has to be noted that some times there is a confusion between Section 33 and Section 144 of the Code. While the latter is more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings."
B) (2005)9 SCC 36 between Kachrulal Bhagirath Agrawal & Ors. Vs. State of Maharashtra & Ors, wherein the Hon'ble Supreme Court of India has observed in paragraphs 10, 11, 12 and 13 as under:-
"10. A proceeding under Section 133 is of a summary Page 6 of 24 HC-NIC Page 6 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT 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 cover 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 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 Section 133 and 144 of the Code shows that Page 7 of 24 HC-NIC Page 7 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT 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 deals with itself physical comfort to the community and not with those which are 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 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 Page 8 of 24 HC-NIC Page 8 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT 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 Naidu (1995 Supp (4) SCC 54) 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 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. and Ors. (2003 (7) SCC 389)]."
C) AIR 2009 SC 1868 between Suhelkhan Khudyarkhan & Anr vs State Of Maharashtra & Ors wherein the Full Bench of Hon'ble Supreme Court of India has observed as under:-
"The proceedings are more in the nature of civil proceedings than criminal proceedings. The Provisions of Section 133 of the Code can be called in aid to remove public nuisance caused by discharge of effluents and air discharge causing hardship to the general public."
D) (2013)2 GLR 1587 between Shah Pushpaben Pravinchandra Vs. State of Gujarat & Anr., wherein this Court has after considering all relevant decisions on the subject, considered the issue regarding noise pollution confirming the order of the Sub-Divisional Magistrate restraining the respondent therein from Page 9 of 24 HC-NIC Page 9 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT installation and utilization of automatic machine, which was creating noise pollution.
10. In background of above stated legal position, if we peruse the facts and circumstances emerging on record of the present case, it transpires that the respondent No.2 herein has pursuant to complaint received by respondent No.3 initiated the proceedings u/s.133 of the Code. The respondent No.3 - complainant has come forward with a case that in Village Dhoraji present applicants No.1 to 5 are slaughtering chickens in their residential house in residential street and selling its meat in open market and in open street and while doing so, they are throwing the garbage of such slaughtered chickens in the street, which includes bloodstained parts of such dead chickens like its legs, feathers and other parts, which results into public nuisance for the residents of the street. For such tortuous act created by the applicants, notice was issued upon them to remain present before the Sub-Divisional Magistrate on 18.5.2015 so as to ascertain that whether applicants are cutting hens and selling its meat in public street in an unauthorized manner and thereby whether it creates pollution and public nuisance in the surrounding street or not. At the same time, to ascertain all such issues, the SDM has directed the Mamlatdar, Dhoraji and Chief Officer of Dhoraji Nagarpalika so also Police Inspector of Dhoraji to carry out local inspection and to submit their report to Page 10 of 24 HC-NIC Page 10 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT confirm the existence of pollution and public nuisance as reported herein above. In turn, SDM was in receipt of a report from Mamlatdar, Dhoraji regarding local inspection, which is confirming the unauthorized activities of the present applicants in the public place and therefore, SDM has decided to proceed further in the case. Whereas on 18.5.2015, advocate Mr.Y.S. Nariwala has appeared before SDM by filing his Vakalatnama on behalf of the present applicants and sought time, which was granted on different dates i.e. 18.5.2015, 25.5.2015, 11.6.2015; whereas on 30.6.2015, Circle Officer of Dhoraji has also filed his report and thereafter, again the matter was adjourned on different dates i.e. on 23.7.2015, 11.8.2015 and 27.8.2015 and now, advocate Mr.Sanjaybhai Jivani has filed his Vakalatnama for some of the petitioners. Thereafter, petitioners have filed their written reply and after hearing both the sides, the Sub- Divisional Magistrate has passed order, whereby applicants are restrained from slaughtering hens and selling its meat in the residential area and throwing its waste on public road. The record shows that before passing such impugned order, the SDM has recorded statements of complainant - Ashrafbhai Alibhai Patni, respondent No.3 herein on 17.3.2015 and statements of several local persons, namely, Anishabanu Mehboob Amdani, Meroonben Husenbhai Patni, Ibrahimbhai Mamadbhai Seta, Mohmad Raisbhai Abdul Sattarbhai Patni, Page 11 of 24 HC-NIC Page 11 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT Akbarbhai Iqbalbhai Bakali, Imranbhai Aalimamadbhai Patni, Amadbhai Umarbhai Sandhi, Hamidbhai Mithubhai Ghanchi, Sharifbhai Raufbhai Chauhan, Sakirbhai Ismailbhai Alif, Iqbalbhai Raufbhai Alif, Altafbhai Yusufbhai Belim, Amanbhai Azizbhai Lunaniya, Femidaben Iqbalbhai - wife of Yusufbhai Bakali. The sum and substance of statements of such witnesses is more or less common to the extent that all the applicants herein are dealing with the meat of hens outside their house by slaughtering the chickens near the house as and when some customers seek to buy fresh meat of hens and for the purpose, they are storing the live stock of hens in and nearby their homes, which itself is creating public nuisance and pollution because of food stuff and waste of such live stock, which may result into epidemic in the area, since the applicants are throwing the bones and uneatable parts of such slaughtered hens viz.legs, eyes etc. in open street, due to which there are lot of stray dogs and that all such heinous act due to slaughtering of live hens on public street results into public nuisance and pollution. All the witnesses have confirmed that they have represented against the applicants and that because of all the activities carried out by the applicants, the area looks like a hen breeding street where they are selling fresh meat of hen after slaughtering them and throwing its bones and feathers etc. on street. Therefore, when there is positive evidence before Page 12 of 24 HC-NIC Page 12 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT the Sub-Divisional Magistrate regarding creation of pollution and public nuisance and when it is undisputed fact that till the impugned order, there is no license or authorisation issued by any competent authority to carry out such activity in such public street, the activities of the applicants can certainly be considered as a tortuous act. Therefore, prima facie the record confirms that there is no substance in the Revision Application so as to interfere with the impugned order, wherein the Sub-Divisional Magistrate has taken care of all the relevant facts and circumstances and material evidence on record. It cannot be ignored that the Magistrate has not relied upon the statement as aforesaid, but in addition to those statements, there is positive evidence in the form of report by the Mamlatdar and Circle Officer, who have in fact drawn Panchnama of the place of incident on 8.6.2015, wherein also, the panchas have categorically observed and recorded that in the street concerned, there is a meat shop of Mansuri Yasin Rajakbhai - applicant No.4, where live 50 hens are stored in a cage with seven slaughtered meat. There is also a meat shop of Mor Iqbalbhai Ibrahimbhai - applicant No.1 where approximately 30 slaughtered hens were stored with approximately 20 live hens in cage and none of them have license to carry out such activity at such place; whereas, after few steps in the same street, there are shops of applicant No.2 - Mor Page 13 of 24 HC-NIC Page 13 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT Gaffarbhai Ibrahimbhai and applicant No.3 - Mor Tausifbhai Gaffarbhai, wherein they both were present at the shops and there were approximately 95 live hens stored in the cage and one slaughtered hen, but they also do not have the license to carry out such activities. The panchas have further recorded that the street is full of dead hen feathers, fresh bones, legs etc. and that the condition of the street is certainly prone to epidemics and that the area looks like hen breeding farm and that because of dumping of live hens in open street, there is a bad smell in the street and stray dogs were wandering there for eating pieces of such meat, which are lying in the street and therefore, entire street is polluted. This is a positive evidence regarding public nuisance and pollution created by such applicants. As against that learned advocate Mr.Kharadi is pressing for quashing and setting- aside the order on the ground that the Magistrate has power to pass conditional order only and if such order is not complied with by the applicants, then and then, he can pass a final order like the impugned order. He further submits that in fact applicants are having their shops at the given place since long for which one of the witness, namely, Faridaben Ismailbhai Sandhi has preferred one Special Civil Application No.12753 of 2009 as a public interest litigation alleging inaction on the part of local municipality in taking steps against the persons selling mutton Page 14 of 24 HC-NIC Page 14 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT etc., but in that case, the Division Bench of this Court has instead of allowing the petition observed that respondent - local authority should take immediate action against such persons running meat shop or poultry farm without license, causing health hazards in that area and that if any person is running such business after obtaining permission and license from the municipality or has applied for such license, the respondents may not disturb them and may decide the application for license independently on merits, but if any individual is running such mutton shop or poultry farm etc. without any license and has not applied for any license or permission, then, immediate steps be taken against such shops and that application for license be decided in accordance with law after notice and hearing the parties. Therefore, it is contended that when Division Bench of this Court has protected the persons having license or who have applied for the license, the S.D.M. Should not have initiated the proceedings u/s.133 when applicants have already applied for the license and when they are protected by order dated 28.4.2011 in Misc.Civil Application - For Contempt No.518 of 2011 in above-referred Special Civil Application No.12753 of 2009 where again the Division Bench of this Court has confirmed that those persons, who have applied for license, shall not be disturbed. However, it cannot be ignored that such observation was made based upon Page 15 of 24 HC-NIC Page 15 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT the declaration by the Chief Officer of the Municipality in such Contempt proceedings, which reads as under:-
"The Chief Officer of the Municipality as well as Police Officer have declared before this Court that excluding the persons who are having licence and the persons who have applied for licence, if any person is running mutton shop or poultry farm causing health hazard to that area, the action shall be taken, including that of seizure and sealing of the particular portion at which the business is going on, with the help of the police within one week and the report shall be made to this Court. Hence, S.O. to 21.04.2011."
11. It is also submitted that the Court has directed that those persons who have applied for license shall not be disturbed. Thereby, it cannot be stated that though they should not be disturbed in previous proceedings or punished for alleged conduct, there cannot be any legal proceedings against them.
12. Therefore, it is contended that though applicants have applied for license, the local authority has not decided the application in time and in fact they are relying upon the communication by the respondents of not granting license in favour of the applicants. Therefore, it is submitted that in fact the respondent authority and the local authorities are hand-in- glove with the complainant; whereby on one hand, they are not granting the license to the applicants though they are entitled for the same and on the other hand, they are keen to restrain Page 16 of 24 HC-NIC Page 16 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT the applicants from carrying out their earning activity.
13. However, on perusal of available evidence on record, I do not find any substance in such submission inasmuch as if at all the local authority is not acting in accordance with law, then, it is for the applicants to agitate such issue before appropriate authority, but only because of pendency of their application for license, they cannot continue the public nuisance and that the Sub-Divisional Magistrate has while passing the impugned order taken care of all the provisions of the Code and the impugned order is reasoned and speaking order taking care of all the contingencies, information and evidence before the Magistrate and all such evidence was rightly appreciated for concluding the impugned order. Thereby, I do not see and irregularity or illegality in the impugned order.
14. It cannot be ignored that in such Criminal Revision Application, the jurisdiction of the Court is limited to the extent of verifying the irregularity and illegality, and if the same is not found, there is no reason to interfere with the impugned order only because of possibility of different interpretation when otherwise the basic evidence on record confirms that there is existence of pollution and public nuisance because of activities of the applicants, which is described in detail herein above and hence, not Page 17 of 24 HC-NIC Page 17 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT reproduced herein.
15. I have also perused the affidavit in reply on behalf of the respondents No.1 and 2 so also the affidavit in rejoinder by the applicants with its annexures, wherein the applicants have tried to emphasize that there is some selectiveness or irregularity by the local authority in not granting the license and cancelling the Form-C. However, as aforesaid, when the local authority is not party in such proceedings, all such issues which are raised first time in this Revision Application, cannot be taken into consideration. The applicants are also relying upon some other enactments as confirmed in the case of Kachrulal Bhagirath Agrawal (supra), it cannot be held that provision of different statutes impliedly repeals the provision of Section 133 of the Code.
16. The applicants are also relying upon the following decisions:-
A) 2001(4) GCD 3356 between Ramachandra Malojirao Bhonsle Vs. Rasikbhai Govardhanbhai Raiyani wherein the Single Judge of this High Court has considered the noise pollution because of running of electronic motor for supply of water and for lifting water so as to enable it to reach to other flats in the complex. The fact shows that when the complex was built, there was neither need of lifting water or lift and therefore, there was no necessity.Page 18 of 24
HC-NIC Page 18 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT B) 1990(2) GLH 370 between Maneklal Karsandas Davda vs State Of Gujarat & Anr. wherein the Single Judge of this High Court was dealing with the constitutional powers under Article 227 of the Constitution when the complainant has made an application to the District Magistrate stating that petitioner is running the Industry of "Kankoo" in his residential house which shares the common wall of his residential premises where 10 workmen were working. However, the dispute before the High Court was altogether different with reference to Section 140 regarding local inspection when High Court has allowed that the Sections under reference did not authorise a Magistrate to conduct a personal inquiry. It was held that while conducting an inquiry u/ss.137 and 138 of the Code, Section 139 of the Code empowers the Magistrate to direct local investigation to be made by a person whom he considers fit. Whereas, u/s.140 of the Code, the Magistrate has to furnish such person with such written instruction as deemed necessary for his guidance. Therefore, when Magistrate has inspected the premises personally, the High Court has deemed it fit to remand the case to the Magistrate for a fresh decision ignoring the spot inspection by the Magistrate. In view of such fact, this judgment would not help the applicants in any manner whatsoever.
Page 19 of 24HC-NIC Page 19 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT C) 1998(2) GLR 1004 between the Branch Manager, Vijaya Bank Vs. The State of Gujarat & Ors. wherein the Single Judge of this High Court has decided that power of Executive Magistrate to pass appropriate orders in public nuisance is only after passing the conditional order. The complaint in the reported case was regarding installation of two air-conditioners in the Bank. The High Court has held that utilization of two air-conditioners for the Bank premises would not result or amount to public nuisance, and therefore, Magistrate could not straightaway pass final order without holding inquiry. Whereas, in the present case, Magistrate has initially passed a conditional order and then hold detailed inquiry before coming to the conclusion that activity by respondent No.2 is creating a public nuisance, and thereby, such judgment would not help the respondent No.1.
D) 1990(1) GLH 484 between Kothari Jayantilal Ramji Vs. State of Gujarat and Ors. wherein the Single Judge of this High Court has again while exercising the powers under Article 226 of the Constitution of India held that order u/s.133 of the Cr.P.C. for demolishing the cabin of the petitioner before it, was arbitrary and unauthorised, but the real issue before the Court Page 20 of 24 HC-NIC Page 20 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT was to the effect that despite existence of alternative remedy of revision against such order, applicant was held entitled to constitutional remedy under Article 226 also. So far as facts are concerned, it was undisputed fact before the Court that petitioner was occupant of the cabin, which was though constructed by him, it was permitted by the local authority and therefore, when local authority had demolished it, exercising their powers u/s.133 of the Code, when civil litigation is pending before the Civil Court, the High Court has held that such demolition is illegal and it can be challenged in writ jurisdiction also. However, the perusal of the entire judgment makes it clear that though the High Court has entertained the writ petition as substitute to the revision application, on facts of the case, when the lease period was over, the High Court did not direct the respondent authorities either to re-construct the cabin or permit the petitioner to do so, but petitioner was left to civil remedy, if at all available and thereby, directed to construct his cabin or to pay damages was refused. Therefore, this judgment would also not help the applicants.
E) 1995 Supp (4) SCC 54 between Nikumba Vs. Baburao Bhikanna Naidu wherein the Hon'ble Supreme Court of India has held that - the object and purpose behind Section 133 is to prevent Page 21 of 24 HC-NIC Page 21 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT public nuisance and if the Magistrate fails to take immediate recourse to Section 133 irreparable damage would be done to the public. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under Section 133 are not intended to settle private dispute or a substitute to settle civil disputes though the proceeding under Section 133 is more in the nature of civil proceedings in a summary nature.
Two options are open to the Executive
Magistrate on considering whether structure,
building etc. is in such a dilapidated condition which requires to be demolished immediately which brooks no delay to avert danger to the life and property of the neighbourhood or passer-by unless they could be suitably repaired or supported so as to avert danger to the public or have it removed, etc. The condition precedent to exercising the power under Section 133 is the imminent danger to the property and consequential nuisance to the public. The removal of the building is so urgently required as it is likely to fall and cause injury to persons living or carrying on business in the neighbourhood or Page 22 of 24 HC-NIC Page 22 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT passers-by. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The dangerous condition of the building is in praesenti but not in future. The section is limited to injuries likely to be caused to the passers-by or persons living or carrying on business in the neighbourhood. Each case has to be considered in light of the facts and circumstances obtained in each case.
F) (1996)7 SCC 71 between C.A. Avarachan Vs. C.V. Sreenivasan & Anr., the Hon'ble the Supreme Court of India has held that the omission on the part of the Sub-Divisional Magistrate to draw up a preliminary order, which is a sine qua non for initiating proceedings under Section 133 of the Code of Criminal Procedure and without following the procedure provided for by Section 138 CrPC, the order made by the Sub-Divisional Magistrate on 13-1-1988 is unsustainable and is vitiated. However, the record shows that there is no such situation on hand and the Sub-Divisional Magistrate has taken care of all the provisions of the Act in deciding the dispute before it and therefore, in fact absence of cogent and reliable evidence and more particularly, in absence of irregularity and illegality in impugned order, I do not see any reason to interfere with the reasoned speaking order since there is ample evidence on record, confirming that there is Page 23 of 24 HC-NIC Page 23 of 24 Created On Sat Sep 24 02:09:52 IST 2016 R/CR.RA/729/2015 CAV JUDGMENT public nuisance and pollution at the place.
17. In view of above facts and circumstances, there is no substance in the revision application and hence, it deserves dismissal.
18. For the reasons stated above, the Criminal Revision Application is dismissed.
19. Rule is discharged.
(S.G.SHAH, J.) binoy Page 24 of 24 HC-NIC Page 24 of 24 Created On Sat Sep 24 02:09:52 IST 2016