Public nuisance established from keeping dogs in residential area, justifying action under Section 133 Cr.P.C., despite procedural irregularities.

ORDER :

Sunder Mohan, J.

The Criminal Revision challenges the order dated 21.02.2024 in Na.Ka.No.02/2022/A1 passed by the 1^st respondent under Section 133 of Cr.P.C ., directing the petitioners and one D.Vikram, to vacate the Dog Breeding Centre, situated at No.28, Circuit House Road, Puliyangulam, Coimbatore.

2. The brief facts leading to the passing of the impugned order is as follows:

(a) One P.R.Damodaran, was the original owner of land measuring 56 cents at No.24, Kamaraj Road, Coimbatore.

(b) On 27.11.2009, the Revenue Divisional Officer, Coimbatore, had passed an order in Ref.No.2966/09/A2 under Section 133 of the Cr.P.C ., against one D.Vikram, son of the said P.R.Damodaran that he should not carry on the activity of keeping or holding any dogs in the said premises and directing him to forthwith remove all dogs from the premises.

(c) The said D.Vikram had challenged the said order before this Court in Crl.R.C.No.1195 of 2009. This Court, observed that the dogs in a residential area would cause nuisance; and that since the said Vikram was carrying on a commercial activity, the order passed by the Revenue Divisional Officer, Coimbatore, need not be interfered with and dismissed the said revision by the order dated 23.12.2009.

(d) The Special Leave Petition in SLP (Crl.) No.9294 of 2010, filed challenging the said order was dismissed by the Hon'ble Supreme Court on 10.01.2011.

(e) The said P.R.Damodaran, filed a suit before the District Munsif Court, Coimbatore in O.S.No.2529 of 2009 against the Commissioner, Deputy Commissioner, Assistant Commissioner, Inspector of Police (L&O) B4-Race Course Police Station, District Collector and Revenue Divisional Officer of Coimbatore District, praying for an injunction restraining them from taking any action against him for keeping pet dogs in his house. The said suit was decreed exparte on 03.02.2012.

(f) While so on 31.12.2021, a complaint was given by the 3^rd respondent and others to the 1^st respondent herein/Revenue Divisional Officer, stating that in violation of the earlier orders passed by the Revenue Divisional Officer and the order of this Court in the revision, the petitioners were running a Dog Breeding Centre.

(g) The 1^st respondent herein passed an order on 27.05.2022 in Na.Ka.No.002/2022/A2. The said Vikram Damodaran, challenged the said order before this Court in Crl.R.C.No.897 of 2022 stating that the order was passed without hearing him. This Court vide order dated 14.09.2022, set aside the order dated 27.05.2022 and directed the said Vikram Damodaran to submit his explanation to the notice dated 05.05.2022 and further, directed the Sub Divisional Magistrate and Revenue Divisional Officer to consider the said explanation and pass appropriate orders.

(h) The said Vikram Damodaran and the petitioners herein participated in the proceedings and filed their written statement objecting to the passing of an order under Section 133 of Cr.P.C .

(i) In the meanwhile, the 1^st respondent had also sought for a report from the Executive Engineer, Tamilnadu Pollution Control Board and obtained a report dated 28.11.2022. Thereafter, after conducting further enquiry, the 1^st respondent passed the impugned order.

3. Mr.V.Raghavachari, learned senior counsel appearing for the petitioners submitted that

(a) the impugned order cannot be sustained as no preliminary order was passed under Section 133 of the Cr.P.C and no notice was sent to the petitioners before passing the impugned order under Section 133 of the Cr.P.C .;

(b) the provisions of Section 133 of the Cr.P.C ., can only be invoked, if there is a public nuisance and if the complaint is with regard to a private nuisance, the remedy is to file a civil suit;

(c) the provisions of Section 133 of the Cr.P.C ., can be involved only if there is an element of urgency and they cannot be a substitute for a civil Court;

(d) though this Court in Crl.R.C.No.1195 of 2009, had upheld the order passed under Section 133 of the Cr.P.C ., against the petitioners'