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2004(4) Crimes 99 (SC)
Supreme Court of India
(From Bombay High Court)
Arijit Pasayat & C.K. Thakker, JJ.
Kachrulal Bhagirath Agrawal & Ors. —Appellants
versus
State of Maharashtra & Ors. —Respondents
Criminal Appeal No. 1350 of 2003
Decided on 22-9-2004
Held : 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. (Para 10)
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. (Para 10)
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. (Para 13)
Result : Appeal dismissed.
Judgment
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.
2. 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 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 s
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