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2009 Supreme(Mad) 5807
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. TAMILVANAN
D. Vikram
Versus
Dr. Jayavarthavavelu & Others
Crl. R.C.No.1195 of 2009 & M.P.No.1 of 2009
Decided on : 23-12-2009
For the Petitioner:R.C. Paul Kanagaraj, Advocate.
For the Respondents:R1, R. Krishnamoorthy, Senior Counsel, for R. Bharath Kumar, Advocate, R2, R3, A. Ramesh, Senior Counsel for V. Samuthira Vijayan, Advocate, R4, N. Kumanan, G.A. (Crl.side).
Ratios:
a. Possession of licence from the local bodies to possess or do anything would not prevent the authorities from exercising their powers under Sec.133 Cr.P.C. if the circumstance warrants.
b. Powers under Sec.133 Cr.P.C. would be invoked by the Magistrate when its failure to exercise immediately would cause irreparable damage to the public.
c. The conduct of any trade or occupation or keeping of any goods or merchandise injurious to health or physical comfort of the community and thereby causing noise or air pollution could be construed as a public nuisance.
d. In a civilized society, every one has a right to live peacefully without noise pollution and health hazardous atmosphere.
e. The Court can take judicial notice that barking and howling of dogs in a residential area would certainly cause noise pollution and emitting foul smell by the dogs which cannot be ruled out, would also cause public nuisance.
f. Keeping animals in ones property detrimental to the interest of the other residents cannot be a right of any person.
Headnote:(A)Code of Criminal Procedure, 1973(2 of 1974)-Sec.133, 138-Constitution of India-Art.21-Coimbatore City Municipal Corporation Act, -Sec.352-Nuisance-Public nuisance-Pet animal-Dog-Dog barking-Pollution-Noise pollution-Revision petitioner had been keeping large number of dogs in his house-Three persons from his neighbourhood filed petition before Sub-Divisional Magistrate for a direction to remove those dogs on the ground of public nuisance-Petitioner contended that there was no nuisance and for keeping pet animals, licence of local body was not necessary-SDO held the act of the petitioner amounted to public nuisance and ordered removal of the dogs-Order was challenged by the petitioner in revision-Parties stood by their stands-Held, citizens are having fundamental right to enjoy noise free environment-Keeping large number of dogs would cause foul smell and also noise pollution and the Court may take judicial notice of such violations-Licence of the local body was also not obtained-When public nuisance was so severe and urgent, aggrieved party need not approach civil Court-Order of SDO was held proper and revision dismissed,
(B)Indian Evidence Act, 1872(1 of 1872)-Sec.114- Constitution of India-Art.19-Coimbatore City Municipal Corporation Act, -Sec.352-Nuisance-Public nuisance-Pet animal-Dog-Dog barking-Pollution-Noise pollution- Judicial notice-Right-The Court can take judicial notice that barking and howling of dogs in a residential area would certainly cause noise pollution and emitting foul smell by the dogs which cannot be ruled out, would also cause public nuisance- Keeping animals in ones property detrimental to the interest of the other residents cannot be a right of any person.
The Court can take judicial notice that barking and howling of dogs in a residential area would certainly cause noise pollution and further, keeping those animals in the residential area, without getting license under Section 352 of the Coimbatore City Municipal Corporation Act is also violation. On the aforesaid circumstances, this Court is of the view that the decisions cited on the side of the petitioner would not make the action taken by the 4th respondent, Sub-Divisional Magistrate illegal to remove the public nuisance under Section 133 Cr.P.C. Keeping animals detrimental to the interest of the other residents cannot be a right of any person. Para 20
The Court can take judicial notice that keeping even 6 or 7 dogs in a residential area will cause public nuisance on account of barking and howling of the dogs, similarly, emitting foul smell by the dogs cannot be ruled out, which would also cause public nuisance. Para 21
(C)Constitution of India-Art.21-Right to health-Health hazard-Pet animal-Dog-Dog barking-Pollution-Noise pollution- In a civilized society, every one has a right to live peacefully without noise pollution and health hazardous atmosphere.
In a civilized society, every one has a right to live peacefully without noise pollution and health hazardous atmosphere, which has been recognised as a fundamental right guaranteed under Article 21 of the Constitution of India. Para 23
(D)Code of Criminal Procedure, 1973(2 of 1974)-Sec.133, 138-Nuisance-Public nuisance-Pet animal-Dog-Dog barking-Pollution-Noise pollution-Air pollution- The conduct of any trade or occupation or keeping of any goods or merchandise injurious to health or physical comfort of the community and thereby causing noise or air pollution could be construed as a public nuisance.
Even the conduct of any trade or occupation or keeping of any goods or merchandise, injurious to health or physical comfort of the community, could be construed only as a public nuisance. The noise pollution or air pollution cannot be ruled out as an exception. Para 24
(E)Code of Criminal Procedure, 1973(2 of 1974)-Sec.133, 138- Nuisance-Public nuisance-Power-Invocation-Condition-Powers under Sec.133 Cr.P.C. would be invoked by the Magistrate when its failure to exercise immediately would cause irreparable damage to the public.
The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and which involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public. Para 28
(F)Code of Criminal Procedure, 1973(2 of 1974)-Sec.133- Nuisance-Public nuisance-Licence-Local body-Magistrate-Power-Possession of licence from the local bodies to possess or do anything would not prevent the authorities from exercising their powers under Sec.133 Cr.P.C. if the circumstance warrants.
It is the duty of the authorities and municipal administration to remove the nuisance, in order to regulate the same, in the interest of the public. Obtaining license has been prescribed under Section 352 of the Coimbatore City Municipal Corporation Act. Even if license is obtained by a person, the affected persons can file a complaint to take action under Section 133 Cr.P.C., in order to prevent noise pollution or other hazardous condition.
Para 32
Challenging the order of the Sub-Divisional Magistrate / Revenue Divisional Officer, Coimbatore, dated 211. 2009, made in Ref.No.2966/A2 under Section 133 Cr.P.C., the criminal revision has been preferred by the petitioner herein.
2. In exercise of the powers vested under Section 138 of the Code of Criminal Procedure, the Sub-Divisional Magistrate / Revenue Divisional Officer, Coimbatore has passed the impugned order and the operative portion of the order reads as follows :
"a) That the order passed by me on 03.09.2009 under Section 133 Cr.P.C., is made absolute without any modification.
b) That the respondent shall not carry on the activity of keeping or holding any dogs in said premises situated at Door No.28, Circuit House Road, Coimbatore and he shall forthwith remove all the dogs in his capacity and possession, failing which it shall be enforced according to law."
3. On the complaint given by the respondents 1 to 3 herein before the Sub-Divisional Magistrate, that the petitioner herein had been causing public nuisance by keeping large number of dogs of different varieties in the rear side of his house at Door No.28, Circuit House Road, Coimbatore abutting the wall of Door No.26 of Thiru.D.Jayavarthavavelu and abutting the wall of the residential house of Thiru.R.Kumaravel, residing at Door No.703, Avinashi Road, Coimbatore and also close to the house of the second respondent, the action was taken by the fourth respondent herein. As per the complaint given against the petitioner herein, he was keeping more than 30 dogs of different varieties in his house, violating the provisions of Section 352 of the Coimbatore City Municipal Corporation Act. It was further stated that constantly, the dogs were making peculiar noises of barking and howling during night hours and also in the early morning hours, which affects the respondents 1 to 3, their family members and others and also create an unhealthy atmosphere besides causing annoyance, as the dogs emit foul smell, causing inconvenience to the residents and guests in the area.
4. In the impugned order, the Sub-Divisional Magistrate has stated that he went through the affidavit, counter affidavit and also considered the evidence adduced by the power agent of the complainants and also the reports of the Inspector of Police, B4 Police Station, the Assistant Commissioner of Police (Central) and the report of the Joint Director of Health Services. The Sub-Divisional Magistrate held that the dogs are to be removed considering the public interest and the public health. The order further reads that the Commissioner, Coimbatore Corporation had also reported that no NOC was granted for keeping the dogs in the residential area and some dogs are found ferocious in nature and the dogs are kept by the petitioner herein only for commercial purposes and hence, the nuisance caused by the petitioner is construed as a public nuisance, as defined under the Code of Criminal Procedure.
5. Mr.R.C.Paul Kanagaraj, learned counsel appearing for the petitioner submitted that the fourth respondent, Sub-Divisional Magistrate / Revenue Divisional Officer, Coimbatore has not followed the mandatory provisions while passing orders under Section 133 Cr.P.C., for the removal of pet animals. According to the learned counsel, the provisions of Section 133 Cr.P.C., cannot be invoked against the petitioner, as the provision is available only to remove the hazardous animals. The second point raised by the learned counsel for the petitioner is that none of the complainants, the respondents 1 to 3 herein had adduced any evidence to substantiate the averments in the complaint given by them and the evidence adduced by the power agent before the Sub-Divisional Magistrate is not sustainable and the same has to be rejected. The third contention is that the Sub-Divisional Magistrate has failed to note the animosity of the respondents 1 to 3 with the petitioner in connection with the kennel club competition and tha
