Public nuisance requires substantial proof of injury to the community; judicial discretion in abating nuisance is contingent upon credible evidence.

ORDER :

J. C. DOSHI, J.

1. The present petition is filed to challenge the order passed by the Sub-Division Magistrate, Valsad in Case No. MAG/Nuisance Case No.4/509 of 2012 approved and confirmed by the learned Sessions Court, Valsad in Criminal Revision Application No.45 of 2013.

2. Briefly stated facts taken from the pleading are as under:

2.1 That the petitioner is the owner of the firm - Bhavani Tin Fabricators. It is a complaint under Section 133 of Code of Criminal Procedure, executed stating that petitioner is running tin fabrication work within the residential premises which creates noise nuisance. The complaint was registered by the Executive Magistrate and issued notice under Section 135 of Code of Criminal Procedure and initiated the case. The Executive Magistrate, following the procedure laid down in the Chapter 10 of the Code of Criminal Procedure, more particularly in 10(B), with regards to public nuisance and after calling the report from the concerned, believed that the petitioner is causing public nuisance within the definition and thus, by exercising power, passed the order under Section 138 of Code of Criminal Procedure on 30.04.2013 and directed to close the factory of the petitioner as it was causing public nuisance.

2.2 Being aggrieved and dissatisfied by the said order, petitioner preferred Criminal revision under Section 397 of the Code of Criminal Procedure before the learned Sessions Court, Valsad vide Criminal Revision Application No.45 of 2013. Learned Sessions Judge, after hearing learned advocates for both the sides, by a judgment and order dated 30.01.2014, pleased to reject the revision as such confirmed the order passed by the Executive Magistrate.

2.3 Hence the present petition.

3. Learned advocate appearing for the petitioner while assailing the impugned orders, submits that the learned Courts below committed serious and gross error in passing drastic orders of closing Bhavani Tin Fabricators believing that it is causing public nuisance. However, there is no specific report on record which indicates that working of Bhavani Tin Fabricators caused inconvenience and public nuisance to the public at large. Learned advocate for the petitioner further submits that the learned Executive Magistrate exceeded jurisdiction vested under Section 133 of the Code of Criminal Procedure and went on to decide that the petitioner, without obtaining NA permission from the competent authority, started factory in the residential premises and thus, such act of the petitioner is causing public nuisance. Learned advocate appearing for the petitioner submits that the Executive Magistrate cannot inter mix its jurisdiction available under the Bombay Land Revenue Court with the jurisdiction available under the Code of Criminal Procedure. This argument was made in connection of finding that, Bhavani Fin Factory in residential area, is amount to violation of NA permission, hence for this violation, Bhavani Tin Factory needed to close.

4. Learned Advocate for the petitioner further submits that before passing a drastic order of closing the fabrication unit of the petitioner, the learned Executive Magistrate must have a reason to believe that, by act of the petitioner, public nuisance is caused and not private nuisance. Learned advocate appearing for the petitioner, has taken this Court to impugned order confirmed by the learned Revisional Court and submits that none of the Court have addressed the issue that whether running of Tin Fabrication unit in residen