The slight discomfort caused by the trade of auctioning vegetables did not justify action under S. 133 of the Code of Criminal Procedure.

Judgment

DAS GUPTA, J. : This appeal by special leave is against the order of the High Court at Allahabad dismissing the application for revision of an order under S. 133 of the Code of Criminal Procedure.

2. The three appellants carry on the trade of auctioning vegetables. These vegetables, it appears, are brought in carts which are parked on the public road outside the building where the auctioning takes place. There was some dispute between these appellants and the Municipal Board which it is suggested by the appellants was really behind the move to get this order under S. 133 passed against them. It is unnecessary, however, for us to consider that matter. What appears to be clear is that the trade is carried on in a private house, in the Subzimandi quarter, and it does happen that some amount of inconvenience is caused to people who pass by the public road because of the carts which necessarily come near this house. The real question is, whether because this trade of auctioning vegetables which the appellants carry on in their private house produce the consequence that people passing by the road are put to inconvenience, action can be taken under S. 133 of the Code of Criminal Procedure. The High Court seems to be of the opinion:-

"When it is clear that the business of auctioning vegetables cannot be carried on without causing obstruction to the passers by, the conduct of the business can be prohibited, even though it is carried on in a private place."

3. It seems to us that this proposition has been put too widely. Section 133 of the Code of Criminal Procedure empowers action by the District Magistrate, Sub-Divisional Magistrate or Magistrate 1st Class to remove public nuisances in certain circumstances. Two out of the several clauses of S. 133(1) in which these circumstances are set out, with which we are concerned, are the first & second clauses. The first clause provides for action by Magistrate where he considers on receiving a police-report or other information and on taking such evidence as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public or from any public place. The second clause deals with the position where 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.

4. It is difficult to see how the first clause can have any application. Unlawful obstruction, if any, is certainly not caused by the people who carry on the trade of auctioning. If the obstruction caused by keeping the carts on the road can be considered to be unlawful obstruction within the meaning of this clause - about which we express no opinion - action can be taken against the persons causing such obstruction. The obvious difficulty in the way of that might be that the persons who bring the carts are not the same from day to day. But whether or not any action is possible under S. 133 against the persons bringing the carts, we are unable to agree that merely because the appellants carry on auctioning in connection with which the carts are brought, they can be considered to have caused the obstruction. In our opinion, the appellants cannot be considered to be the persons causing obstruction.

5. Turning now to the next clause, the question arises how the conduct of this auctioning trade is injurious to the health or physical comfort of the community. Undoubtedly some amount of noise and perhaps a great deal of noise is caused when the auction is going on. That however is a necessary concomitant of buying and selling large quantities and it will be unreasonable to think that merely because some amount of noise is caused which people preferring perfect peace may not like, this is injurious to the physi