IMPORTANT POINT
Section 133, Cr. P.C. can be invoked in the event of imminent danger to the property and consequential nuisance to the public.

JUDGMENT

Dr. Arijit Pasayat, J.—

1. Challenge in this appeal is to the judgment of a learned Single Judge of the Bombay High Court Aurangabad Bench dismissing the writ petition filed by the appellants.

2. Background facts projected by the appellant are as follows:

Appellants are tenants on plot No.3/1120 since last 15-20 years where he has erected a tin shed and running religious bookshop known as “R.K. Kitab Ghar”. Shop licence and electric connection were obtained for the said shop. Municipal Council has also recognized the shop of the appellants and had allowed the appellants to run the said shop for last many years. At the instigation of respondent No.2 i.e. J.K. Shaikh, the Municipal Council tried to remove the shop of appellants and there they filed suit bearing RCS No. 29 of 1994 before Civil Judge 9(J.D), Bhusawal. On 20.2.1995, Sub Divisional Magistrate issued a conditional order to remove the shop of the appellants on the basis of the complaint filed by respondent-J.K. Shaikh. The appellants appeared before Sub Divisional Magistrate, Bhusawal on 8.3.1995 and made a request for dismissal of application filed by respondent No.2. The Sub Divisional Magistrate, by order dated 26.5.1995 directed the present appellants to remove the shop named as ‘R.K. Kitab Ghar”. The appellants being aggrieved by the said order, filed Criminal Revision Application before learned III Additional Sessions Judge, Jalgaon on 31.5.1995. The said revision was dismissed after hearing the parties on 5.7.1995.

3. Stand of the appellants was that Section 133 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) had no application to the facts of the present case. The High Court did not accept the plea. The High Court’s directions for removal of the encroachment was stated to be without jurisdiction. The High Court did not accept the stand and dismissed the writ petition as noted above.

4. Learned counsel for the appellants submitted that there was order of status quo and therefore the direction as given is clearly without jurisdiction.

5. Learned counsel for the respondent-State on the other hand submitted that the order of status quo did not have any relevance so far as the present dispute is concerned and that it related to a different property.

6. Section 133 of the Code 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 tort”.

7. In Vasant Manga Nikumba v. Baburao Bhikanna Naidu1 (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 damage 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 nuisance, 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