IMPORTANT POINT
The court ruled that the elements of public nuisance were not established, leading to the quashing of prior orders.

ORDER :

1. By way of the instant criminal misc. petition filed under Section 482 of Cr.P.C., a challenge has been made to the order dated 27.06.2015, whereby learned Additional Sessions Judge, Anoopgarh Camp Gharsana, District Sri Ganganagar dismissed the Criminal Revision No.64/2015 and upheld the order dated 16.12.2014 passed by the learned Sub Divisional Magistrate, Gharsana, District Sri Ganganagar (hereinafter to be referred as ‘the Magistrate’) in Case No.Nil/2014, whereby the complaint filed under Section 133 of Cr.P.C. by the respondent No.4 was accepted and direction for removal of the encroachment made by petitioner and the respondent No.4 was passed.

2. Brief facts of the case are that a complaint under Section 133 of Cr.P.C. was filed at the instance of respondent No.4 alleging therein that the petitioner runs a business of furniture and used to cut wood by a saw machine which generates significant noise and dust, thereby creating a public nuisance. Furthermore, the encroachment made by the petitioner also restricts public access to the way. Upon which, the police investigated the matter and submitted its report before the learned Magistrate, who vide order dated 16.12.2014 ordered for removal of the encroachments made by the petitioner as well as respondent No.4. Against the said order dated 16.12.2014, the petitioner preferred a revision petition, which came to be dismissed by the learned Sessions Judge vide order dated 27.06.2015 affirming the order of learned Magistrate. Hence, this criminal misc. petition.

3. Learned counsel for the petitioner submits that the learned Magistrate as well as learned Sessions Judge have not gave any finding of this effect that the saw machine, from which the petitioner used to cut wood, generates significant noise and dust, thereby creating a public nuisance. It is further submitted that in compliance of the directions issued by the learned Magistrate, the petitioner had removed the encroachments, which did not create any nuisance. Thus, the instant criminal misc. petition may kindly be allowed and orders under assail may kindly be quashed and set aside.

4. Learned counsel for the petitioner places reliance on the decision dated 22.09.2004 rendered by Hon’ble the Supreme Court in the case of Kachrulal Bhagirath Agrawal & Ors. Vs. State of Maharashtra & Ors. (Criminal Appeal No.1350/2003) reported in (2005) 9 SSC 36 and submits that Section 133 of Cr.P.C. provides for conditional order for removal of nuisance, which was elaborately discussed by Hon’ble the Supreme Court in the above referred case. The relevant part of that judgment is reproduced hereunder :-

“10*. A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquility. The chapter has been classified into four categories. Sections 129 to 132 come under the category of "unlawful assemblies". Sections 133 to 143 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category covers Sections 145 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds, i.e. (i) public; and (ii) private. “Public nuisance” or “common nuisance” as defined in Section 268 of the Indian Penal Code, 1860 (in short the 'IPC') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. “Private nuisance” on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds – civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in shor