Delhi District Court
Izaz Khan vs The State (Nct Of Delhi) on 31 October, 2012
"In the court of Sh. V.K Yadav, ASJ-02 (North), Tis Hazari Courts, Delhi"
CR NO. 22/12
Izaz Khan
S/o late Hidayat Khan @ Kallu Khan
R/o H.No 663, Gali Nalbandan
Kashmere Gate, Delhi
.............. Appellant
Versus
The state (NCT of Delhi)
............. Respondent
Date of institution : 02.07.2012
Date of Arguments : 31.10.2012
Date of Decision : 31.10.2012
ORDER
1. Two neighbours cross swords, apparently on account of some kind of a public nuisance arising out of the activities carried out by each of them resulting into noise and air pollution. However, it seems that the inherent idea was something else.
2. The two complaints lodged, one by the revisionist herein and the other by Permanand Joshi, against each other having more or less similar grievances that the activities carried out by each of them are causing public nuisance, were taken up for consideration by the Competent Authority i.e the Sub Divisional Magistrate, Sadar Bazar took cognizance of the matter and after verifying the same having obtained report passed sealing order against both the persons.
3. The record reflects that the neighbours became wiser and settled their dispute but that settlement could not bring any solace to them and by CR NO. 22/12 Page 1 of 4 order dated 24.03.2012, the premises of the revisionist was sealed remained in force. Notwithstanding the compromise, the SDM did not deseal the property, paving the way for the instant revision. It is informed that Paramand Joshi had also filed a separate revision as the application for desealing was dismissed by the Sub Divisional Magistrate by holding that the order cannot be reviewed.
4. I have considered the submissions made by the Ld. Counsels for the parties and has perused the record as well.
5. The revisionist has also placed on record his affidavit together with a copy of the affidavit filed by Paramand Joshi and contended that in view of the affidavits and the fact that the parties have compromised the matter, the revision may be allowed and the property in question may be ordered to be desealed.
6. Section 133 CrPC contemplates about public nuisance. Thus, whatever nuisance or trouble is reported or brought to the notice of the SDM should be of such a nature, which may effect or has the potential to affect the public at large. The individual inconvenience is not to be considered under this section.
7. The order u/s 133 is to be passed only when the public interest so required, reference can be made to the judgment in Narayan Vs. SDM 1986 Cr.LJ 102 (Orissa). In the instant matter public or private nuisance was found thus, no public interest was involved justifying any order u/s 133 CrPC. In case the revisionist has some personal grudge, the option and remedies are available to him, which she may avail of, if so felt by him.
8. In the instant matter, the SDM has obtained a report whereby noise pollution and air pollution were found to be there. However, the SDM CR NO. 22/12 Page 2 of 4 has not cared to see that none of the witnesses Sanjay Gupta, Parmanend Joshi, Babloo have stated anything of the nature, which may fall into the scope and ambit of public nuisance. It seems that every one of them has his own axe to grind. It is not that all kinds of noise can be treated as noise pollution. The concerned authorities have prescribed noise level/ standards and when the noise level goes beyond that prescribed standard, only that kind of noise falls into the scope and ambit of noise pollution and can be termed as a public nuisance. There is nothing on record rather it seems that no such exercise was undertaken by the SDM to ascertain the noise level and to see whether the same is beyond the prescribed limits or not.
9. Similar is the position vis-a-vis the air pollution. There is nothing on record, which may indicate that the pollution, if at all, it was created by the work of the revisionist, was so much or to such an extent that it may be termed as public nuisance. The exercise carried out by the SDM concerned has resulted into reflecting something else, which was not even complained of i.e the building is in such a dilapidated and dangerous condition that it was a hazard for the public at large. However, what was the material before SDM to come to the said conclusion is missing. No evidence is there, which may substantiate the opinion formed by the Sub Divisional Magistrate. The photographs on record do not substantiate this fact that the building is so dangerous that it is a hazard for the public at large. Then the SDM/ the official deputed has not cared to even record and statement of someone from the vicinity who really felt threatened by the condition of the building, who may be put in to the definition independent public person, having no direct or indirect interest in to the matter.
CR NO. 22/12 Page 3 of 410. In view of the above referred circumstances, the impugned order of sealing of the premises of the revisionist is unfounded and not based upon unsubstantiated solid and cogent facts and reason. Therefore, the same cannot be sustained. As a result the revision is allowed being maintainable and the impugned order dated 24.03.2012 is hereby set aside with all its obvious consequences. TCR alongwith copy of this order be sent to the Ld. SDM and thereafter revision file be consigned to record room.
Announced in the open court today i.e 31.10.2012 Vimal Kumar Yadav ASJ-02 (North)/31.10.2012 CR NO. 22/12 Page 4 of 4 CR NO. 22/12 31.10.2012 Present : Revisionist in person with counsel Sh. Anil Kumar, Ld. Substitute Addl. PP for State Arguments heard. Put up later for orders.
Vimal Kumar Yadav
ASJ-02 (North)/31.10.2012
At 4:00 pm
Present : Revisionist in person
Vide separate order dictated and announced, the revision is allowed. TCR alongwith copy of this order be sent to the Ld. Trial Court and thereafter revision file be consigned to record room.
Vimal Kumar Yadav ASJ-02 (North)/31.10.2012 CR NO. 22/12 Page 5 of 4