( 1 ) THIS Criminal Revision Application under S. 397 of the Code of Criminal Procedure is directed against the order dated 27-6-1995 passed by the Sub-Divisional Magistrate, Ahmedabad City in Case No. 2315 of 1995.

( 2 ) PROCEEDINGS under S. 133 of the Code of Criminal Procedure were instituted in the Court of the Sub-Divisional Magistrate, Ahmedabad on a complaint filed by Harshadbhai G. Sejpal and six others. Their say is that they are residing in the colony known as Surya Complex. The complex is divided into three blocks known as A, B and C. The opponent No. 3 Gurukul Branch of Vijaya Bank is situated on the first floor of "c" block. There are six big windows in the front portion in which air-conditioners are fitted. On the rear side there are two windows fitted with air-conditioners. They are directly opposite to the colony in which the applicants are residing. The distance between windows and their residence is only a few feet. The air-conditioners operate during the period from 8-30 a. m. to 8- 00 p. m. which causes great nuisance and physical discomfort and is injurious to health of the residents of the colony. It is further stated that the air-conditioners emit gas and bad smell which cause great pollution in the whole colony.

( 3 ) THE respondent bank filed reply denying the allegations. It is stated that the air-conditioners do not emit gas or smell as suggested. It is further stated that the air-conditioners fitted are brand new and they do not make any noise. It is also submitted that it is not a matter of public nuisance.

( 4 ) IT appears that the learned Magistrate inspected the site on 23-2-1996. After inquiry the learned Magistrate held that there is an ingress/outgress of the people in the colony and therefore, the premises is a public place. In view of this, the contention of the bank that it is not a public nuisance was rejected. Another contention of the bank that air-conditioners do not make any noise and also do not discharge gas and for which certificates were also produced was rejected on the ground that the certificates were given by the companies for development of their business and to oblige the bank. Learned Magistrate also held that the construction of the building in which bank is running was illegal as AUDA had only permitted construction for residential purpose. Considering the written arguments and the report of AUDA the learned Magistrate directed the bank to forthwith remove two airconditioners fitted near the place of residents and on the backside of the bank.

( 5 ) LEARNED Advocate Mr. J. A. Adeshra appearing for the Vijaya Bank has assailed the order of the Sub-Divisional Magistrate on various grounds. It is submitted that Yogi Engineers who are authorised dealers of Carrier air-conditioners have issued a certificate stating that the air-conditioners were installed after proper and scientific survey of the premises and keeping in mind of the fact that the branch is going for total automation and need for maintaining the temperature and humidity at the required uniform level as to create an environment conducive for computer operations. Any alteration/re-arrangement may fail the optimum utility of the machines and thereby may cause to breakdown of the system. It is also certified 1998 (2) BRANCH MANAGER, VIJAYA BANK v. STATE (Cri. R. A.)-Mathur, J. 1007 that the model of machines supplied by them are the time-tested and they do not create any excessive noise. It is also certified that the machines do not emit any harmful gas while in operation and that the compressors of the air-conditioners are leakproof and that they are of international standard and are not health hazardous. The machines are periodically serviced by trained personnel and hence they are in good condition.

( 6 ) LEARNED Advocate Mr. J. A. Adeshra has also invited my attention to the certificate dated 15-2-1996 issued by Carrier Aircon LIMITED, in which it is certified that out of three speeds of fan motor