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PETITIONER: RAM AUTAR

       Vs.

RESPONDENT: STATE OF U. P.

DATE OF JUDGMENT: 03/05/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS KAPUR, J.L. DAYAL, RAGHUBAR

CITATION:  1962 AIR 1794            1963 SCR  (3)   9

ACT: Public  Nuisance-Auctioning vegetables in  private  house--- Carts  of sellers kept on public road-Unlawful  obstruction, if  auctioneers  responsible--Noise  caused  in  auctioning- Whether trade injurious to public health and comfort-Code of Criminal Procedure, 1898 (Act V of 1898), s. 133.

HEADNOTE: The appellants carried on the trade of auctioning vegetables in  a private house in the Subzimandi quarter.  The  persons who  brought  vegetables for sale kept their  carts  on  the public  road where they caused obstruction to traffic.   The noise caused by the auctioning caused discomfort to  persons living in the locality.  An order was passed under s. 133 of the Code of Criminal Procedure restraining auctioning vege- tables in their house. Held,  that the order was not justified under s. 133 of  the Code.   Merely because the appellants carried on  auctioning in connection with which the carts were brought, they  could not  be  considered to have caused the  obstruction.   In  a trade  like  auctioning  which  has  to  be  carried  on  as necessary for the well being of the community some amount of noise  has to be borne by the public.  Section .133 was  not intended   to  stop  such  trades  merely  because  of   the discomfort caused by the noise.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 79  of 1960. Appeal  by special leave from the judgment and  order  dated August  18,  1959, of the Allahabad HIgh Court  in  Criminal Revision No. 947 of 1959. 10 C.L. Prem, for the appellants. G.C. Mathur and C. P. Lal, for the respondent. 1962.  May 3. The Judgment of the Court was delivered by DAS GUPTA, J. -- This appeal by special leave is against the order  of  the  High  Court  at  Allahabad  dismissing   the application  for  revision of an order under s. 133  of  the

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Code of Criminal Procedure. The  three  appellants  carry on  the  trade  of  auctioning vegetables.   These vegetables, it appears, are  brought  in carts  which  are  parked on the  public  road  outside  the building  where the auctioning takes place.  There was  some dispute  between  these appellants and the  Municipal  Board which  it is suggested by the appellants was  really  behind the move to get this order under s. 133 passed against them. It is unnecessary, however, for us to consider that  matter. What appears to be clear is that the trade is carried on  in a private house in the subzimandi quarter and it dose happen that  some  amount of incovenience is caused to  people  who pass  by  the  public  road  because  of  the  carts   which necessarily  come  near this house.  The real  question  is, whether  because this trade of auctioning  vegetables  which the  appellants carry on in their private house produce  the consequence  that  people  passing by the road  are  put  to inconvenience, action can be taken under s. 133 of the  Code of Criminal Procedure.  The High Court seems to be of the opinion:-               "when  it  is  clear  that  the  business   of               auctioning  vegetables  cannot be  carried  on               without causing obstruction to the passers by,               the conduct of the business can be prohibited,               even though it if; carried on in a private               11 It  seems  to  us that this proposition  has  been  put  too widely.   Section  133  of the Code  of  Criminal  Procedure empowers  action by the District Magistrate,  Sub-Divisional Magistrate   or  Magistrate  Ist  class  to  remove   public nuisances in certain circumstances.  Two out of the  several cls. of s. 133(1) in which these circumstances are set  out, with  which  we  are concerned, are  the  first  and  second clauses.  The first clause provides for action by Magistrate where  he considers, on receiving a police-report  or  other information  and on taking such evidence as he  thinks  fit, that any unlawful obstruction or nuisance should be  removed from  any way, river or channel which is or may be  lawfully used  by  the public or from any public place.   The  second clause  deals  with the position where the  conduct  of  any trade  or  occupation  or  the  keeping  of  any  goods   or merchandise, is injurious to the health or physical  comfort of  the  community  and that in consequence  such  trade  or occupation  should be prohibited or regulated or such  goods or  merchandise  should be removed or  the  keeping  thereof regulated. It  is  difficult to see how the first clause can  have  any application.  Unlawful obstruction, if any, is certainly not caused  by the people who carry on the trade of  auctioning. If  the obstruction caused by keeping the carts on the  road can  be  considered to be unlawful  obstruction  within  the meaning  of  this clause-about which we express  no  opinion action  can  be  taken  against  the  persons  causing  such obstruction.   The  obvious difficulty in the  way  of  that might  be that the persons who bring the carts are  not  the same  from  day to day.  But whether or not  any  action  is possible  under  s.  133 against the  persons  bringing  the carts,  we  are  unable to agree  that  merely  because  the appellants carry on auctioning in connection with which  the carts are brought, they cap be considered to have caused the 12 obstruction.   In  our  opinion,  the  appellants,cannot  be considered to be the persons causing obstruction. Turning now to the, next clause, the question arises how the conduct of this auctioning trade is injurious to the  health

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or  physical  comfort of the community.   Undoubtedly,  some amount of noise and perhaps, a great deal of noise is caused when  the auction is going on.  That however is a  necessary concomitant  of buying ’and selling large quantities and  it will  be  unreasonable to think that  merely  because,  some amount  of noise is caused which people  preferring  perfect peace  may  not  like, this is  injurious  to  the  physical comfort,  or  health of the "community".  It appears  to  us that  the  conduct of trades of this nature  and  indeed  of other  trades in localities of a city where such trades  are usually  carried  on, is bound to produce  some  discomfort, though at the same time resulting perhaps in the good of the community  in  other respects.  If a trade  like  auctioning which  has to be carried on as necessary for the well  being of the community, some amount of noise has to be borne in at least  that part of the town where such trade is  ordinarily carried on.  In making the provisions of s. 133 of the  Code of Criminal Procedure, the legislature cannot have  intended the stoppage of such trades in such part of the town, merely because  of the discomfort" caused by the noise in  carrying on  the  trade.   In  our  opinion  therefore,  the   slight discomfort that may be caused to some people passing by  the road  or  living in the neighbourhood cannot  ordinarily  be considered ;to be  such as to justify action under s. 133 of the  Code of Criminal Procedure.  We do not think  that  the orders  are justified under s. 133.  Accordingly,  we  allow the appeal and set aside the order made by the Magistrate.                               Appeal allowed. 13