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CASE NO.:

Appeal (crl.) 1350 of 2003

PETITIONER:

Kachrulal Bhagirath Agrawal & Ors.

RESPONDENT:

State of Maharashtra & Ors.

DATE OF JUDGMENT: 22/09/2004

BENCH:

ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

Legality of action taken and order passed by learned Sub-

Divisional Magistrate, Sakoli (for short 'SDM') under Section 133 of

the Code of Criminal Procedure, 1973 (in short the 'Code') having

upheld by a learned Single Judge of the Bombay High Court, this appeal

has been filed. It is of relevance to note that the appellants had

filed a revision before the learned Additional Sessions Judge, Gondia,

questioning legality of the order dated 7.2.1989 passed by the SDM. The

revisional authority held that the order passed by the SDM was not

legal. Thereafter a revision was filed by the five of the original

applicants, who had initiated action before the SDM. The High Court as

noted above, by the impugned judgment held that the order passed by the

SDM was legal and proper. The revisional court should not have

interfered with it.

Backgrounds facts as per the complainants are as follows:

The original non-applicant M/s. Ramchand Bhagirath is a

proprietary concern of Bhagirath Ramchand Agrawal (since deceased). He

was a commission agent in a Kirana goods and was also a wholesale

dealer in dry chillies. In Ansari Ward of Gondia city, he had a godown

in a double storied building known as Vishnu Kunj where he used to

store large quantity of chillies. The applicants before learned SDM

are residents of Ansari Ward which is mainly a residential locality.

Present appellant No.1 being a wholesale dealer in dry chillies,

everyday trucks loaded with dry chillies come to his godown and then

the same are unloaded and stored in the godown. Similarly, loading of

dry chillies also goes on for distributing the same to his customers.

This has been going on since several years and it appears to have

become a routine thing. The applicants however made a grievance that

on account of storing of dry chillies in the godown as well as the work

of loading and unloading thereof the health and physical comfort of the

residents in that locality were affected and it has become practically

impossible for them to bear any further. According to them, the

loading and unloading of chillies cause pollution with the result that

many residents in the locality suffer from sneezing, coughing, asthma,

irritation of skin and burning sensation. The applicants, therefore,

moved the Municipal Council for taking necessary action in this behalf.

However, since the Municipal Council did not give any response, the

applicants moved learned SDM, Gondia, under Section 133 of the Code.

The learned SDM, after finding that there was a prima facie case

against the present applicants issued a conditional order dated

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12.3.1985 under Section 133(1)(b) of the Code with a notice to them to

show cause as to why the same should not be confirmed and made

absolute. Pursuant to the said notice, the appellants appeared before

learned SDM, Gondia, and filed reply. In the said reply, it was

submitted that the building "Vishnu Kunj" was being used as godown but

it was denied that the loading and unloading of dry chillies pollutes

the atmosphere and causes physical injury or discomfort to the

residents of the locality. It was pointed out that the godown is a

pakka construction and that whenever loading and unloading is required

to be done, water is sprinkled to avoid pollution. This has been going

on for about 20 years and nobody ever made any complaint in that

behalf. Learned SDM, Gondia, allowed the parties to lead evidence in

support of their respective contentions. He recorded part of the

evidence and thereafter the case was transferred to learned SDM,

Sakoli, who completed the enquiry. Learned SDM, Sakoli, upon

consideration of the evidence of the witnesses came to the following

conclusions viz.:

(i) People in general in the locality in sufficient number are

suffering from the loading and unloading of dry chillies and

its storage in the godown;

(ii) It has resulted not only in their adverse health and

discomfort but a few are permanently suffering in the sense

that some of them are suffering from sickness and ailment;

(iii) Even the witnesses of the non-applicant admitted that due to

this business, there is discomfort and injury to physical

health;

In this view of the matter, learned SDM, Sakoli, held that the

applicants proved public nuisance and physical discomfort to them.

Consequently, learned SDM, Sakoli, proceeded to pass an order under

Section 133 of the Code, operative part of which reads as follows:

"The non-applicant is hereby directed that he will

not keep, store and transport chillies in the

godown, Vishnu Kunj as the same is injurious to the

health and physical comfort of the community and he

shall also remove all the goods stored therein. This

order shall be given effect from 22nd February, 1989.

Notice in form No.21 be issued to the non-

applicant."

Feeling aggrieved by this order, the present appellants preferred

Criminal Revision Application No.17 of 1989 in the court of the

Additional Sessions Judge, Gondia. The learned Additional Sessions

Judge proceeded to reassess the evidence adduced by the parties and

came to the conclusion that the learned SDM, committed error in holding

that the business of the non-applicant causes public nuisance. He

further held that the learned SDM ignored the evidence adduced on

behalf of the non-applicant and attached too much importance to the

evidence of the applicants. The learned Additional Sessions Judge

further held that the learned SDM had arbitrarily used his discretion

in favour of the original applicants and, therefore, it was a fit case

to interfere with the impugned order. In this view of the matter, the

learned Additional Sessions Judge allowed the revision application

filed by the original non-applicant and set aside the order passed by

learned SDM. A Criminal Revision Application was filed by some of the

original applicants before the High Court to set aside the revisional

order.

Originally, there were ten applicants, five of whom later on had

withdrawn. Therefore, five of the original applicants moved the High

Court, which came to hold that the conditions requisite for passing of

order under Section 133(1)(b) as well as final order under Section 138

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of the Code were not fulfilled. Accordingly it set aside order of the

revisional Court.

In support of the appeal, learned counsel for the appellants

submitted that the scope and ambit of Section 133 has not been kept in

view. The evidence was not sufficient to show that community was

affected by the conduct of keeping any goods by the appellant. It has

not been established that such conduct of business was injurious to the

health or physical comfort of the community. It was pointed out that

learned Additional Sessions Judge had analysed the factual and legal

position to hold that the basic requirements for passing an order under

Section 133 of the Code were absent. Alternatively, it was submitted

that the SDM had the jurisdiction to pass directions regulating conduct

of the trade or keeping of the goods. This aspect has not been

examined by learned SDM and the High Court. For pretty long time the

appellant was carrying business without any grievance whatsoever by any

member of the community. It was submitted that the appellant is a

commission agent and there was no material to conclude that he was

dealing in red chilly. The non-dried chillies were stored and cannot

in any manner create inconvenience or injuries to the health and legal

comfort of the community. There was no material to show that the

community as such was affected. In fact, because of business rivalry

ten applicants had filed petitions before the learned SDM. Five of them

later on realized that it was not worthwhile to proceed in the matter

as the ingredients of Section 133 of the Code were not satisfied and

withdrew.

In response learned counsel for the respondents submitted that

the learned SDM had elaborately examined the factual and legal

position.

It was pointed out that while exercising revisional jurisdiction

learned Sessions Judge should not have interfered with the well-

reasoned and well-merited order passed by the learned SDM. The High

Court, therefore, analysed the factual and legal position afresh and

came to the conclusion that the order passed by the learned SDM under

Section 133 of the Code was justified.

Section 133 so far as it is relevant for our purpose reads as

follows:

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) xx xx xx

(b) that 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 such trade or

occupation should be prohibited or regulated or such

goods or merchandise should be removed or the

keeping thereof regulated; or

(c)to (f) xx xx xx

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 a

time to be fixed in the order -

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(i) xx xx xx

(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) to (vi) xx xx xx

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.

xx xx xx"

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 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 \026 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 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

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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.

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 \026 that we are accountable for its

exercise \026 that, from the people, and for the people, all springs and

all must exist". The conduct of the trade must be injurious in

presenti 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.

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".

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)].

In the background of legal principles set out above, the judgment

of the High Court does not suffer from any infirmity.

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

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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.

With the aforesaid observations, the appeal is dismissed.