JUDGMENT

Radha Krishna, J - This is an application in revision against the order dated 25th February 1939, of the Additional Sessions Judge of Bahraich upholding the order of the Magistrate, First Class, of Bahraich dated 20th July 1938. The facts leading to this application are that the applicants have been working their flour mills in the heart of the Bahraich city for the last ten years under a license from the Municipal Board of Bahraich. It is admitted before this Court that under the said license the licensees are allowed to work their mills from 7 A.M. to 7 P.M. every day. In 1934 certain persons applied under the provisions of Section 133, Criminal P.C., complaining that the mills worked even after 8 P. M. and the neighbouring houses shook when the mills worked and thereby their foundations were damaged, further that the persons living in the vicinity were very much annoyed by the noise of the engine of the mills and could not sleep and that the gas from the engine made the air unhealthy. The Magistrate passed a conditional order for the removal of the nuisance, but after hearing the evidence of the parties on 26th June 1934 set aside that order on the view that Section 133, Criminal P.C., did not apply to the case inasmuch as the nuisance affected the convenience of a few persons only and not of the community. The matter was re-agitated in 1937 when at the instance of certain persons proceedings under Section 133, Criminal P.C., were again started. In these proceedings the learned Magistrate, on 18th March 1937, ordered as follows:

I think the entire removal of the mills will cause great hardship to their owners and the nuisance can easily be removed if the owners do not work their mills with full speed, fit in improved silencers and Ram Asrey to work his thali mill more carefully. I therefore make my order under Section 133, Criminal P.C., absolute, but modify it to this extent, that Ram Asrey and Kedar Nath shall desist from working their engines at full speed and that they fit improved silencers to their engines so as to prevent or considerably reduce the noise. A notice shall accordingly issue to Kedar Nath and Ram Asrey under Section 140, Criminal P.C.

2. The present application was moved by a larger number of persons complaining against the petitioners that their flour mills are situated on either side of the pucca road in the city of Bahraich and they were causing serious public nuisance, making considerable noise, and vibration and shaking and were damaging the neighbouring buildings and causing physical discomfort and affecting the health of the public and also causing disturbance to the proper receipt of telegraphic messages in the branch post office. The application was treated as an application under Section 133, Criminal P.C., The learned Magistrate after hearing the evidence and making a local inspection came to the conclusion that the mills caused noise, shaking and vibrations and' were a great nuisance and caused great physical discomfort to the neighbours. He came to the conclusion that the removal of the mills would cause great hardship and expense to the millowners and passed the following order:

I therefore make my order absolute but with this modification that the engines of Kedar Nath and Ram Asrey be located in pucca cemented reservoirs at least six feet deep and this I expect would remove the public complaint; if matters do not improve the complainants would be at liberty to seek remedy again. Let two months notice be issued.

3. It is this order of the learned Magistrate which is questioned in revision. Before coming to this Court the applicants applied in revision before the learned Additional Sessions Judge, who dismissed their application on 25th February 1939. Towards the end of the judgment the learned Additional Sessions Judge observed that it would have been better if the parties got this matter settled by the Civil Court once for all and further that it was open to the present petitione