22 September 2004
Supreme Court
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KACHRULAL BHAGIRATH AGRAWAL Vs STATE OF MAHARASHTRA .

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: Crl.A. No.-001350-001350 / 2003
Diary number: 24681 / 2002
Advocates: RAJESH PRASAD SINGH Vs RAVINDRA 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, who completed the enquiry. Learned SDM, Sakoli, upon  consideration of the evidence of the witnesses came to the following  conclusions viz.:

(i)     People in general in the locality in sufficient number are  suffering from the loading and unloading of dry chillies and  its storage in the godown; (ii)    It has resulted not only in their adverse health and  discomfort but a few are permanently suffering in the sense  that some of them are suffering from sickness and ailment; (iii)   Even the witnesses of the non-applicant admitted that due to  this business, there is discomfort and injury to physical  health;

In this view of the matter, learned SDM, Sakoli, held that the  applicants proved public nuisance and physical discomfort to them.   Consequently, learned SDM, Sakoli, proceeded to pass an order under  Section 133 of the Code, operative part of which reads as follows:   "The non-applicant is hereby directed that he will  not keep, store and transport chillies in the  godown, Vishnu Kunj as the same is injurious to the  health and physical comfort of the community and he  shall also remove all the goods stored therein. This  order shall be given effect from 22nd February, 1989.

Notice in form No.21 be issued to the non- applicant."

Feeling aggrieved by this order, the present appellants preferred  Criminal Revision Application No.17 of 1989 in the court of the  Additional Sessions Judge, Gondia.  The learned Additional Sessions  Judge proceeded to reassess the  evidence adduced by the parties and  came to the conclusion that the learned SDM, committed error in holding  that the business of the non-applicant causes public nuisance.  He  further held that the learned SDM ignored the evidence adduced on  behalf of the non-applicant and attached too much importance to the  evidence of the applicants.  The learned Additional Sessions Judge  further held that the learned SDM had arbitrarily used his discretion  in favour of the original applicants and, therefore, it was a fit case  to interfere with the impugned order.  In this view of the matter, the  learned Additional Sessions Judge allowed the revision application  filed by the original non-applicant and set aside the order passed by  learned SDM.  A Criminal Revision Application was filed by some of the  original applicants before the High Court to set aside the revisional  order.                           Originally, there were ten applicants, five of whom later on had  withdrawn.  Therefore, five of the original applicants moved the High  Court, which came to hold that the conditions requisite for passing of  order under Section 133(1)(b) as well as final order under Section 138

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of the Code were not fulfilled. Accordingly it set aside order of the  revisional Court.  

       In support of the appeal, learned counsel for the appellants  submitted that the scope and ambit of Section 133 has not been kept in  view.  The evidence was not sufficient to show that community was  affected by the conduct of keeping any goods by the appellant. It has  not been established that such conduct of business was injurious to the  health or physical comfort of the community.  It was pointed out that  learned Additional Sessions Judge had analysed the factual and legal  position to hold that the basic requirements for passing an order under  Section 133 of the Code were absent. Alternatively, it was submitted  that the SDM had the jurisdiction to pass directions regulating conduct  of the trade or keeping of the goods.  This aspect has not been  examined by learned SDM and the High Court.  For pretty long time the  appellant was carrying business without any grievance whatsoever by any  member of the community. It was submitted that the appellant is a  commission agent and there was no material to conclude that he was  dealing in red chilly.  The non-dried chillies were stored and cannot  in any manner create inconvenience or injuries to the health and legal  comfort of the community. There was no material to show that the  community as such was affected. In fact, because of business rivalry  ten applicants had filed petitions before the learned SDM. Five of them  later on realized that it was not worthwhile to proceed in the matter  as the ingredients of Section 133 of the Code were not satisfied and  withdrew.   

       In response learned counsel for the respondents submitted that  the learned SDM had elaborately examined the factual and legal  position.    

It was pointed out that while exercising revisional jurisdiction  learned Sessions Judge should not have interfered with the well- reasoned and well-merited order passed by the learned SDM.  The High  Court, therefore, analysed the factual and legal position afresh and  came to the conclusion that the order passed by the learned SDM under  Section 133 of the Code was justified.

       Section 133 so far as it is relevant for our purpose reads as  follows:        

133. CONDITIONAL ORDER FOR REMOVAL OF NUISANCE.  (1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive  Magistrate specially empowered in this behalf by the  State Government, on receiving the report of a  police officer or other information and on taking  such evidence (if any) as he thinks fit, considers -  (a) xx                  xx                      xx (b) that 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; or  (c)to (f) xx                    xx                      xx  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 or merchandise, or owning,  possessing or controlling such building, tent,  structure, substance, tank, well or excavation, or  owning or possessing such animal or tree, within a  time to be fixed in the order -

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(i) xx                          xx                      xx (ii) to desist from carrying on, or to remove or  regulate in such manner as may be directed, such  trade or occupation, or to remove such goods or  merchandise, or to regulate the keeping thereof in  such manner as may be directed; or  (iii) to (vi)   xx                xx                    xx or, if he objects so to do, to appear before himself  or some other Executive Magistrate subordinate to  him at a time and place to be fixed by the order,  and show cause, in the manner hereinafter provided,  why the order should not be made absolute.  (2) No order duly made by a Magistrate under this  section shall be called in question in any Civil  Court.   xx                             xx                              xx"

       A proceeding under Section 133 is of a summary nature. It appears  as a part of Chapter X of the Code which relates to maintenance of  public order and tranquility. The Chapter has been classified into four  categories. Sections 129 to 132 come under the category of "unlawful  assemblies".  Sections 133 to 143 come under the category of "public  nuisance". Section 144 comes under the category of "urgent cases of  nuisance or apprehended danger" and the last category cover Sections  145 to 149 relating to "disputes as to immovable property".  Nuisances  are of two kinds, i.e. (i) Public; and (ii) Private.  ’Public nuisance’  or ’common nuisance’ as defined in Section 268 of the Indian Penal  Code, 1860 (in short the ’IPC’) is an offence against the public either  by doing a thing which tends to the annoyance of the whole community in  general or by neglecting to do anything which the common good requires.   It is an act or omission which causes any common injury, danger or  annoyance to the public or to the people in general who dwell or occupy  property in the vicinity.  ’Private nuisance’ on the other hand,  affects some individuals as distinguished from the public at large.   The remedies are of two kinds \026 civil and criminal.  The remedies under  the civil law are of two kinds.  One is under Section 91 of the Code of  Civil Procedure, 1908 (in short ’CPC’).  Under it a suit lies and the  plaintiffs need not prove that they have sustained any special damage.   The second remedy is a suit by a private individual for a special  damage suffered by him.  There are three remedies under the criminal  law.  The first relates to the prosecution under Chapter XIV of IPC.   The second provides for summary proceedings under Sections 133 to 144  of the Code, and the third relates to remedies under special or local  laws.  Sub-section (2) of Section 133 postulates that no order duly  made by a Magistrate under this Section shall be called in question in  any civil Court. The provisions of Chapter X of the Code should be so  worked as not to become themselves a nuisance to the community at  large.  Although every person is bound to so use his property that it  may not work legal damage or harm to his neighbour, yet on the other  hand, no one has a right to interfere with the free and full enjoyment  by such person of his property, except on clear and absolute proof that  such use of it by him is producing such legal damage or harm.  Therefore, a lawful and necessary trade ought not to be interfered with  unless it is proved to be injurious to the health or physical comfort  of the community. Proceedings under Section 133 are not intended to  settle private disputes between different members of the public.  They  are in fact intended to protect the public as a whole against  inconvenience. A comparison between the provisions of Section 133 and  144 of the Code shows that while the former is more specific the latter  is more general.  Therefore, nuisance specially provided in the former  section is taken out of the general provisions of the latter section.   The proceedings under Section 133 are more in the nature of civil  proceedings than of criminal nature. Section 133(1)(b) relates to trade  or occupation which is injurious to health or physical comfort.  It  deals with itself physical comfort to the community and not with those

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which are in themselves nuisance but in the course of which public  nuisance is committed.  In order to bring a trade or occupation within  the operation of this Section, it must be shown that the interference  with public comfort was considerable and a large section of the public  was affected injuriously.  The word ’community’ in Clause (b) of  Section 133(1) cannot be taken to mean residents of a particular house.   It means something wider, that is, the public at large or the residents  of an entire locality.  The very fact that the provision occurs in a  Chapter with "Public Nuisance" is indicative of this aspect.  It would,  however, depend on the facts situation of each case and it would be  hazardous to lay down any straitjacket formula.           The guns of Section 133 go into action wherever there is public  nuisance.  The public power of the Magistrate under the Code is a  public duty to the members of the public who are victims of the  nuisance, and so he shall exercise it when the jurisdictional facts are  present.  "All power is a trust \026 that we are accountable for its  exercise \026 that, from the people, and for the people, all springs and  all must exist".  The conduct of the trade must be injurious in  presenti to the health or physical comfort of the community.  There  must, at any rate, be an imminent danger to the health or the physical  comfort of the community in the locality in which the trade or  occupation is conducted.  Unless there is such imminent danger to the  health or physical comfort of that community or the conduct of the  trade and occupation is in fact injurious to the health or the physical  comfort of that community, an order under Section 133 cannot be passed.   A conjoint reading of Sections 133 and 138 of the Code discloses that  it is the function of the Magistrate to conduct an enquiry and to  decide as to whether there was reliable evidence or not to come to the  conclusion to act under Section 133.                       Section 133 of the Code as noted above appears in Chapter X of  the Code which deals with maintenance of public order and tranquility.  It is a part of the heading "Public nuisance".  The term "nuisance" as  used in law is not a term capable of exact definition and it has been  pointed out in Halsbury’s Laws of England that: "even in the present day there is not entire  agreement as to whether certain acts or omissions  shall be classed as nuisances or whether they do not  rather fall under other divisions of the law of  tour".         In Vasant Manga Nikumba v. Baburao Bhikanna Naidu (1995 Supp (4)  SCC 54) it was observed that nuisance is an inconvenience which  materially interferes with the ordinary physical comfort of human  existence. It is not capable of precise definition.  To bring in  application of Section 133 of the Code, there must be imminent danger  to the property and consequential nuisance to the public. The nuisance  is the concomitant act resulting in danger to the life or property due  to likely collapse etc. The object and purpose behind Section 133 of  the Code is essentially to prevent public nuisance and involves a sense  of urgency in the sense that if the Magistrate fails to take recourse  immediately irreparable danger would be done to the public.  It applies  to a condition of the nuisance at the time when the order is passed and  it is not intended to apply to future likelihood or what may happen at  some later point of time.  It does not deal with all potential  nuisances and on the other hand applies when the nuisance is in  existence. It has to be noted that sometimes there is confusion between  Section 133 and Section 144 of the Code.  While the latter is a more  general provision the former is more specific.  While the order under  the former is conditional, the order under the latter is absolute.         [See State of M.P. v. Kedia Leather & Liquor Ltd. and Ors. (2003  (7) SCC 389)].         In the background of legal principles set out above, the judgment  of the High Court does not suffer from any infirmity.   The residual question, however, is whether learned SDM could  consider the suggestions, if any, given by the appellants, as to the  manner in which goods can be stored or connected activities by passing

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order of a regulatory nature.  This is permissible by the provisions  itself which provide that SDM can regulate such activities.  Therefore,  without expressing any opinion on that matter for which material can be  placed by the appellants before the learned SDM for appropriate orders  in the matter, we direct that if any suggestion or alternative  arrangement is brought to the notice of learned SDM it shall be  considered in its proper perspective in accordance with law.               With the aforesaid observations, the appeal is dismissed.