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1987 Supreme(All) 411
IN THE HIGH COURT OF ALLAHABAD
B. L. Yadav
WALI UDDIN - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Criminal Revision 1495 Of 1986
Decided On : 09/11/1987
When the existence of a public right is denied under section 133 of the Code of Criminal Procedure, 1973, and reliable evidence is produced in support of the denial, the Magistrate is obligated to stay the proceedings and direct the parties to get their rights adjudicated upon by a competent civil court.
Headnote:
PUBLIC NUISANCE - SECTIONS 133, 137, 144 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - INTERPRETATION AND APPLICATION - DISTINCTION BETWEEN PUBLIC AND PRIVATE NUISANCE - PROCEDURE TO BE FOLLOWED WHEN EXISTENCE OF PUBLIC RIGHT IS DENIED - STAY OF PROCEEDINGS UNDER SECTION 137(2) - MANDATORY.
Fact of the Case:
The applicants filed an application before the City Magistrate, Meerut, under sections 133/137 of the Code of Criminal Procedure, 1973 (the Code), alleging that the opposite party was running a factory in the vicinity that created public nuisance due to unusual noise and caused cracks in neighboring buildings. The City Magistrate passed a conditional order under section 133(1) of the Code, asking the opposite party to show cause why the order should not be made absolute. The opposite party appeared and denied the allegations, claiming that the factory had been running for over 20 years without causing any discomfort and that a similar complaint filed in 1957 had been dismissed. The Magistrate, after hearing evidence from both sides, confirmed the conditional order and directed the opposite party to close the factory or obtain permission to run it for a different purpose. The opposite party filed a revision petition before the Additional Sessions Judge/Special Judge, Meerut, who allowed the revision and set aside the conditional order.
Finding of the Court:
The court held that the nuisance complained of was a public nuisance as it affected the public at large and not just a private individual. The court further held that the Magistrate erred in not staying the proceedings under section 137(2) of the Code when the opposite party denied the existence of the public right and produced reliable evidence in support of the denial. The court clarified that the Magistrate's role was to inquire into the matter and ascertain if there was reliable evidence, not to decide the rights and title of the parties.
Issues: 1. Whether the nuisance complained of was a public nuisance or a private nuisance. 2. Whether the Magistrate erred in not staying the proceedings under section 137(2) of the Code when the opposite party denied the existence of the public right and produced reliable evidence in support of the denial.
Ratio Decidendi: 1. The court distinguished between public and private nuisance, holding that public nuisance affects the public at large, while private nuisance affects only private individuals. The court found that the nuisance in the present case was a public nuisance as it affected the public at large due to the unusual noise and cracks in neighboring buildings. 2. The court interpreted section 137(2) of the Code and held that it is mandatory for the Magistrate to stay the proceedings under section 133 of the Code when the opposite party denies the existence of the public right and produces reliable evidence in support of the denial. The court clarified that the Magistrate's role is to inquire into the matter and ascertain if there is reliable evidence, not to decide the rights and title of the parties.
Final Decision: The court allowed the revision petition in part, modifying the impugned orders to stay the proceedings under section 133 of the Code until the matter of the existence of the public right is decided by a competent civil court.
( 1 ) BY present criminal revision, under sections 397/401 of the Code of Criminal Procedure 1973 (for short the Code), order dated 18. 7. 1986 passed by Additional Sessions Judge/special Judge, Meerut passed in Criminal Revision No. 48 of 1986 (Mohd. Islam v. State of U. P. and others) allowing. the revision and setting aside the conditional order dt. 17th April, 1984 passed by City Magistrate, Meerut in a proceeding under sections 133/1. 37 of the Code initiatedagainst Mohd. Islam Opposite party No. 2, is sought to be quashed.
( 2 ) THE facts of the case are few and simple and they are these:
The applicants moved an application before the City Magistrate, Meerut purporting to be under sections 133/137 of the Code for initiating proceedings against the opposite party No. 2 as the latter runs in factory in the vicinity for manufacturing Wheel panas and during process of manufacturing, public nuisance, was created due to which the residents of the locality could not deep well not on account of unsual noise, some cracks had been created in neighbouring buildings, hence, it was prayed that opposite party No. 2 may be restrained from creating public nuisance or from running the said factory. The Kotwali Police submitted a challan report against him under section 133 of the Code for taking necessary action. The City Magistrate passed a conditional order under section 133 (1) of the Code on 18/4/1984 asking the opposite party No. 2 to show cause as to why not the said conditional order may be made absolute.
( 3 ) THE opposite party No. 2 appeared and contested the notice alleging that the same was mala fide and that no discomfort was created by the said factory which is being run for the last more than 20 years. In substances the allegations made in the notice and the application were denied and It was urged that even in 1957 similar complaint was filed but the same was dismissed, hence that order would operate as res judicata and 10 any case proceedings are liable to be quashed and the condition order deserves to be discharged. In support of the notice to Initiate proceedings under section 133 of the Code P;w. 1 Walluddin, P. W. 2 Anwar Ahmad, P. W. 3 Mohd. Ishqaue, P. W. 4 Hashmat Khan and P. W. 5 Sabir Ali were examined by the applicants and O. P. W. 1 Islam, O. P. W. 2 Saleem and O. P. W. 3. Babu Ibrahim were examined by opposite party No. 2 and other evidence was also led.
( 4 ) CITY Magistrate, Meerut passed conditional order dated 12/4/1984 directing Mobd. Islam, the opposite party No. 2 to close the factory manufacturing wheel panas, or. to show cause on 25. 4. 84 at 10 a. m. Indicating why not the conditional order dated 17/4/1984 may be confirmed. After taking evidence, as stated above the City Magistrate further directed the opposite party No. 2 that in case he wants to run the factory for manufacturing something other than wheel panas, then he may move an application before the court and obtain appropriate permission. Against that order, opposite party No. 2 preferred a revision which was allowed on 18-7-1986 by the Additional Sessions Judge/special Judge, Meerut and order dated 7th February 1986 was set aside and conditional order dated 17. 4. 1984 was discharged. Against that revisional order present revision has been filed.
( 5 ) MR. Tapan Ghosh learned counsel for the applicant urged that on the basis of evidence on record particularly the statements of P. W. 1 Waliuddin, P. W. 2 Anwar Ahmad, P. W. 3. Mohd. Ishaque and P. W. 4 Hashmat Khan, it was proved that in the process or manufacturing wheel-panas in the factory run by the opposite party No. 2 public-nuisance was created by its unusual sound and even the health of the residents of the locality was hadly affected and the walls of so many adjoining buildings have been cracked and during process of manufacturing, it appears that the walls would fall down and as the opposite party No. 2 has intensified the mo do of manufacturing since dismissal of ear
