Judgment

CHANDRACHUD, CJI. :- The respondent who is a partner of the Punjab Oil Mills, Khanna, filed in the Court of the Sub-Divisional Magistrate, Samrala, an application under S. 133 of the Cr. P. C. 1898 complaining that the appellant, who had been carrying on the occupation of a baker in the premises let out to him by the Mills had constructed an oven and a chimney which constituted a nuisance under S. 133 of the Code.

2. By an order dated Dec. 16, 1969, the learned Sub-Divisional Magistrate served a conditional order on the appellant under S. 133 (1) of the Code calling upon him to demolish the oven and the chimney within a period of 10 days from the date of the order and to show cause why the order should not be confirmed. After hearing the parties and considering the evidence led by them, the learned Magistrate made the conditional order absolute on June 18, 1970. While confirming the conditional order, the learned Magistrate however directed the appellant to cease carrying on the trade of a baker at the particular site and not to lit the oven again.

3. The appellant filed a revision petition against the order of the Sub-Divisional Magistrate under Ss. 435 and 436 of the Code. By a judgment dated Aug. 26, 1971, the learned Additional Sessions Judge, Ludhiana, disagreed with the order passed by the Sub-Divisional Magistrate and made a reference to the High Court of Punjab and Haryana recommending that since there was no evidence on record to show that the oven was enlareged by the appellant in the year 1969 as alleged by the respondent and since there was positive documentary evidence on the record to show that the particular oven was in existence for a period of 16 or 17 years, the order passed by the Sub-Divisional Magistrate should be quashed.

4. The reference was heard by a learned single Judge of the High Court, who by a judgment dated Jan. 15, 1973 rejected the recommendation of the learned Additional Sessions Judge and upheld the order of the Sub-Divisional Magistrate. Being aggrieved by the judgment of the High Court the appellant has filed this appeal by special leave of this Court.

5. Section 133 (1) of the Code of 1898 provides in so far as is relevant that

Whenever a District Magistrate a Sub-Divisional Magistrate or a Magistrate of the first class considers, on receiving a police-report or other information and on taking such evidence if any 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, or

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 regualted or such goods or merchandise should be removed or the keeping thereof regulated, or

that the construction of any building, or the disposal of any substance, as likely to occasion conflagration or explosion should be prevented or stopped, or

that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair, or support of such building, tent or structure, or the removal or support of such tree, is necessary.

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 to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation; or

to prevent or stop the erection of, or to remove, repair or support, such building, tent or structure.

6. It is clear from the judgment of the learned Sub-Divisional Magistrate that the evidence disclosed that the smoke emitted by the chimney constructed by the appellant was "injurious to the health and phy