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PETITIONER: GOBIND SINGH

       Vs.

RESPONDENT: SHANTI SARUP

DATE OF JUDGMENT15/09/1978

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR  143            1979 SCR  (1) 806  1979 SCC  (2) 267  CITATOR INFO :  F          1989 SC1622  (17)

ACT:      Nuisance-Public    nuisance    removal    of-Preventive Jurisdiction of  the Magistrate  under Section  133  of  the Criminal  Procedure   Code,  explained-Magistrate  must  act purely in the interests of the public.

HEADNOTE:      On a  complaint by  the respondent  a  partner  of  the Punjab Oil  Mills, that  the appellant who had been carrying on the  occupation of a baker in the premises let out to him by the  Mills had  constructed an  oven and a chimney, which constituted a  nuisance under  Section 133  of the  Criminal Procedure Code,  the  trial  magistrate  after  hearing  the parties  and  on  local  inspection  confirmed  his  earlier conditional order  directing the  appellant to  demolish the oven and  the chimney  within a  period of  ten days.  While confirming the  conditional  order  the  magistrate  however directed the  appellant to  cease carrying on the trade of a baker at  the particular site and not to lit the oven again. The Additional  Sessions Judge  recommended reversal  of the said order  and made a reference to the High Court. The High Court, upheld the trial court’s order.      Dismissing the appeal by special leave, the Court ^      HELD :  1. In  a matter  of this  nature where  what is involved is not merely the right of a private individual but the health,  safety and  convenience of the public at large, the safer  course would be to accept the view of the learned magistrate, who  saw for  himself the  hazard resulting from the working of the bakery. [809B-C]      The magistrate  however went  beyond the  scope of  the conditional order  passed by  him. Preventing  the appellant from using  the oven  is certainly  within the  terms of the conditional order  but not  so the  order requiring  him  to desist from  carrying on  the trade  of a baker at the site. [809C-D]

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 59 of 1973.      Appeal by  Special Leave  from the  Judgment and  Order dated 15-1-73  of the  Punjab and Haryana High Court in Crl. Revision No. 176-R of 1971.      Turth Singh Munjiral and H. K. Puri for the appellant.      V. M.  Tarkunde, R.  L.  Batra,  S.  K.  Mehta,  K.  R. Nagaraja and P. N. Puri for the Respondent. 807      The Judgment of the Court was delivered by      CHANDRACHUD, C. J.-The respondent who is partner of the Punjab Oil  Mills, Khanna,  filed in  the Court  of the Sub- Divisional Magistrate, Samrala, an application under section 133 of  the Code  of Criminal  Procedure, 1898,  complaining that the  appellant, who had been carrying on the occupation of a  baker in the premises let out to him by the Mills, had constructed an  oven  and  a  chimney  which  constituted  a nuisance under Section 133 of the Code.      By an  order dated  December 16, 1969, the learned Sub- Divisional Magistrate  served a  conditional  order  on  the appellant under  section 133(1) of the Code calling upon him to demolish  the oven  and the chimney within a period of 10 days from  the date  of the  order and to show cause why the order should not be confirmed. After hearing the parties and considering the evidence led by them, the learned Magistrate made the  conditional order absolute on June 18, 1970. While confirming the  conditional order,  the  learned  Magistrate however directed  the appellant  to cease  carrying  on  the trade of  a baker  at the particular site and not to lit the oven again.      The appellant  filed a  revision petition  against  the order of  the Sub  Divisional Magistrate  under sections 435 and 436  of the  Code. By  a judgment dated August 26, 1971, the learned  Additional Sessions  Judge, Ludhiana, disagreed with the  order passed  by the Sub-Divisional Magistrate and made a  reference to  the High  Court of  Punjab and Haryana recommending that  since there  was no evidence on record to show that the oven was enlarged by the appellant in the year 1969 as  alleged by  the  respondent  and  since  there  was positive documentary  evidence on  the record  to  show  the particular oven  was in  existence for  a period of 16 or 17 years, the  order passed  by the  Sub-Divisional  Magistrate should be quashed.      The reference  was heard  by a  learned single Judge of the High  Court, who  by a  judgment dated  January 15, 1973 rejected  the   recommendation  of  the  learned  Additional Sessions Judge  and upheld  the order  of the Sub-Divisional Magistrate. Being  aggrieved by  the judgment  of  the  High Court the  appellant has  filed this appeal by special leave of this Court.      Section 133(1)  of the Code of 1898 provides insofar as is relevant that           Whenever a  District Magistrate,  a Sub-divisional      Magistrate  or   a  Magistrate   of  the   first  class      considers,  on   receiving  a  police-report  or  other      information and  on taking  such evidence  if any as he      thinks fit. 808           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, or           that the  conduct of  any trade  or occupation, or      the keeping  of any  goods or merchandise, is injurious

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    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, or           that the  construction of  any  building,  or  the      disposal  of  any  substance,  as  likely  to  occasion      conflagration or  explosion,  should  be  prevented  or      stopped, or           that any  building, tent or structure, or any tree      is in  such a  condition that  it is likely to fall and      thereby cause  injury to  persons living or carrying on      business in  the neighbourhood  or passing by, and that      in consequence  the removal, repair, or support of such      building, tent  or structure, or the removal or support      of such tree, is necessary,           Such  Magistrate  may  make  a  conditional  order      requiring  the   person  causing  such  obstruction  or      nuisance, or  carrying on  such trade or occupation, or      keeping any such goods;           to desist  from  carrying  on,  or  to  remove  or      regulate in  such manner as may be directed, such trade      or occupation; or           to prevent  or stop the erection of, or to remove,      repair or support, such building, tent or structure.      It is  clear from  the judgment  of  the  learned  Sub- Divisional Magistrate  that the  evidence disclosed that the smoke emitted  by the  chimney constructed  by the appellant was "injurious  to the  health and  physical comfort  of the people  living   or  working   in  the   proximity"  of  the appellant’s bakery  and that  there was  no justification on the part of the appellant for discharging the smoke from the chimney on the G. T. Road. The learned Magistrate had made a local inspection  on the basic of which he prepared a report dated February  11, 1970.  That report  and the  photo-print Exh. ‘A’,  show that  the upper  horizontal portion  of  the chimney constructed by the appellant juts out into the G. T. Road to the extent of about six feet. Considering the nature of this  construction and  the volume of smoke emitted by it the learned  Magistrate concluded  that the  chimney was not only  an   encroachment  upon   a  public   place  but   its construction led  to a  graver consequence. Allowing the use of the oven and the chimney was, according to the 809 Magistrate,  "virtually  playing  with  the  health  of  the people". A strong wind, according to the learned Magistrate, could  carry   the  flames  over  a  distance  and  cause  a conflagration.      It is  true that  the learned Additional Sessions Judge did not  agree  with  the  findings  of  the  Sub-Divisional Magistrate, but  considering the  evidence in  the case, the reasons given  by the Magistrate in support of his order and the fact  that the  High Court  was  unable  to  accept  the recommendation made by the Additional Sessions Judge, we are of the opinion that in a matter of this nature where what is involved is not merely the right of a private individual but the health,  safety and  convenience of the public at large, the safer  course would be to accept the view of the learned Magistrate, who  saw for  himself the  hazard resulting from the working of the bakery.      The learned  Magistrate has  however  gone  beyond  the scope of  the conditional  order  which  he  had  passed  on December 16,  1969, by  which he  required the appellant "to demolish the  said oven  and the chimney" within a period of 10 days  from the issue of the order. The final order passed by  the  learned  Magistrate  is  to  the  effect  that  the

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appellant shall  cease to  carry on  the trade of a baker at the particular  site and  shall  not  lit  the  oven  again. Preventing the  appellant from  using the  oven is certainly within the  terms of  the conditional  order but  not so the order requiring  him to desist from carrying on the trade of a baker  at the  site. While, therefore, upholding the order of the learned Magistrate and the view of the High Court, we consider it  necessary to  clarify that  the proper order to pass would  be to require the appellant to demolish the oven and the  chimney constructed  by him  within a period of one month from  today. It  is needless to add that the appellant shall not  in the meanwhile use the oven and the chimney for any purpose whatsoever.      For these  reasons  we  dismiss  the  appeal  with  the modification suggested  above in  the order  passed  by  the learned Magistrate. S. R.                                      Appeal dismissed. 810