Advocates:
RAJESH PRASAD SINGHRAVINDRA KESHAVRAO ADSURE

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CASE NO.:

Appeal (crl.) 1350 of 2003

PETITIONER:

Kachrulal Bhagirath Agrawal & Ors.

RESPONDENT:

State of Maharashtra & Ors.

DATE OF JUDGMENT: 22/09/2004

BENCH:

ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

Legality of action taken and order passed by learned Sub-

Divisional Magistrate, Sakoli (for short ’SDM’) under Section 133 of

the Code of Criminal Procedure, 1973 (in short the ’Code’) having

upheld by a learned Single Judge of the Bombay High Court, this appeal

has been filed. It is of relevance to note that the appellants had

filed a revision before the learned Additional Sessions Judge, Gondia,

questioning legality of the order dated 7.2.1989 passed by the SDM. The

revisional authority held that the order passed by the SDM was not

legal. Thereafter a revision was filed by the five of the original

applicants, who had initiated action before the SDM. The High Court as

noted above, by the impugned judgment held that the order passed by the

SDM was legal and proper. The revisional court should not have

interfered with it.

Backgrounds facts as per the complainants are as follows:

The original non-applicant M/s. Ramchand Bhagirath is a

proprietary concern of Bhagirath Ramchand Agrawal (since deceased). He

was a commission agent in a Kirana goods and was also a wholesale

dealer in dry chillies. In Ansari Ward of Gondia city, he had a godown

in a double storied building known as Vishnu Kunj where he used to

store large quantity of chillies. The applicants before learned SDM

are residents of Ansari Ward which is mainly a residential locality.

Present appellant No.1 being a wholesale dealer in dry chillies,

everyday trucks loaded with dry chillies come to his godown and then

the same are unloaded and stored in the godown. Similarly, loading of

dry chillies also goes on for distributing the same to his customers.

This has been going on since several years and it appears to have

become a routine thing. The applicants however made a grievance that

on account of storing of dry chillies in the godown as well as the work

of loading and unloading thereof the health and physical comfort of the

residents in that locality were affected and it has become practically

impossible for them to bear any further. According to them, the

loading and unloading of chillies cause pollution with the result that

many residents in the locality suffer from sneezing, coughing, asthma,

irritation of skin and burning sensation. The applicants, therefore,

moved the Municipal Council for taking necessary action in this behalf.

However, since the Municipal Council did not give any response, the

applicants moved learned SDM, Gondia, under Section 133 of the Code.

The learned SDM, after finding that there was a prima facie case

against the present applicants issued a conditional order dated

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12.3.1985 under Section 133(1)(b) of the Code with a notice to them to

show cause as to why the same should not be confirmed and made

absolute. Pursuant to the said notice, the appellants appeared before

learned SDM, Gondia, and filed reply. In the said reply, it was

submitted that the building "Vishnu Kunj" was being used as godown but

it was denied that the loading and unloading of dry chillies pollutes

the atmosphere and causes physical injury or discomfort to the

residents of the locality. It was pointed out that the godown is a

pakka construction and that whenever loading and unloading is required

to be done, water is sprinkled to avoid pollution. This has been going

on for about 20 years and nobody ever made any complaint in that

behalf. Learned SDM, Gondia, allowed the parties to lead evidence in

support of their respective contentions. He recorded part of the

evidence and thereafter the case was transferred to learned SDM,

Sakoli, wh