SECTION 133 CR. P. C. IS NOT INTENDED TO APPLY TO FUTURE LIKELIHOOD OR WHAT MAY HAPPEN AT SOME LATER POINT OF TIME AND THAT THE PROVISION APPLIES ONLY TO EXISTING AND NOT TO POTENTIAL NUISANCE.

ARUN KUMAR BHATTACHARYA, J.

( 1 ) THE hearing arises from an application under section 401 read with sections 397 and 482 Cr. PC filed by the petitioner praying for revision of the order dated 16. 9. 2002 passed by the learned Sub-Divisional Magistrate, Uluberia, Howrah, in Misc. Case No. 160/2000 under section 133 Cr. PC.

( 2 ) THE circumstances leading to the above application are that on the complaint of O. P. No. 2 Ratikanta Pal an employee of B. D. O. , Bagnan-II to his employer to exert Government power, inter alia, alleging that despite his objection, the petitioners are forcibly constructing a well on Plot No. 1318 comprising of 18 dec. land for the purpose of privy and bathroom which will cause nuisance to the water of the tank used for bathing, cooking and drinking, the B. D. O. held an enquiry through Sanitary Inspector, Bagnan-II, who without any notice to the petitioners and without holding any spot enquiry submitted a false report. B. D. O. pursued the matter to S. D. O. and upto Minister level. Under instruction of Private Secretary to the Minister-in-Charge, Forest Department, Government of West Bengal, Additional district Magistrate (Judicial), Howrah, informed S. D. O. Uluberia vide memo dated 20. 5. 99 to take up and dispose of the matter under section 133 Cr. PC or otherwise being oblivious about pendency of the longstanding private dispute in Civil Court in T. S. No. 396/92 over the said private land. Sub-Divisional Officer and Sub-Divisional Magistrate, Uluberia accordingly directed the Executive Magistrate, Uluberia, vide memo dated 28. 5. 99 to initiate a proceeding under section 133 Cr. PC. The Executive Magistrate, in turn, started Misc. Case No. 160/2000 under section 133 Cr. PC and issued a notice directing the petitioners to remove the kuchha latrine from the bank of pond on plot No. 1318 within one month and to show cause as to why the order should not be made absolute. The petitioners after their appearance, filed show-cause stating that civil suit being T. S. No. 396/92 is pending, where an order of injunction in the form of maintaining status quo in respect of the land including pond was passed on 18. 2. 94 and that latrine was constructed long ago in or about 1983 at a sufficient distance after taking precautionary measures and as such prayed for dropping the proceeding. The learned Magistrate by his order dated 16. 9. 2002 rejected the prayer of the petitioners.

( 3 ) BEING aggrieved by, and dissatisfied with, the said order, the petitioners have come up before this Court.

( 4 ) MR. Mitra, learned Counsel for the petitioners, relying upon the cases of State of M. P. vs. Kedia Leather and Liquor Ltd. reported in 2003 SCC (Cri.)1642 (Para 8) and K. Bhagirath Agrawal vs. State of Maharashtra reported in 2005 SCC (Cri) 1191 contended that when the property belongs to private individuals and a civil dispute is pending between two families and no nuisance, not to speak of public nuisance is involved, and that the provision of section 133 is not intended to apply to future likelihood or what may happen at some later point of time, the said section 133 has no manner of application. Mr. Roy, learned Counsel for the State, fully supported the above submission contending that section 133 has no application to private nuisance, if at all.

( 5 ) NUISANCE may be either public or private. The remedy for the latter is a civil suit although what constitutes nuisance may be common to both classes. A public nuisance is something which is offensive to the public, an inconvenience, discomfort or hurt, annoying or endangering the safety of the whole community in general. A private nuisance may amount to a public nuisance if it affects the public generally. Section 133 provides a speedy and summary remedy in case of urgency where danger to public interest or public health is concerned. In all other cases, the parties should be referred for remedy under the ordinary law. For invoking the provision of section 13

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