REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.1039 OF 2005

Suhelkhan Khudyarkhan & Anr. ….Appellants

Versus

State of Maharashtra & Ors. ….Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge

of  the  Bombay High Court  Aurangabad Bench dismissing  the writ

petition filed by the appellants.  

2. Background facts projected by the appellant are as follows:

Appellants are tenants on plot No.3/1120 since last 15-20 years where

he has erected a tin shed and running religious bookshop known as “R.K.

Kitab Ghar”.  Shop licence and electric connection were obtained for the

said shop.  Municipal Council has also recognized the shop of the appellants

and had allowed the appellants to run the said shop for last many years.  At

the instigation of respondent No.2 i.e. J.K. Shaikh, the Municipal Council

tried to remove the shop of appellants and there they filed suit bearing RCS

No. 29 of 1994 before Civil Judge 9(J.D), Bhusawal.  On 20.2.1995, Sub

Divisional Magistrate issued a conditional order to remove the shop of the

appellants on the basis of the complaint  filed by respondent-J.K. Shaikh.

The  appellants  appeared  before  Sub  Divisional  Magistrate,  Bhusawal  on

8.3.1995 and made a request for dismissal of application filed by respondent

No.2.  The Sub Divisional Magistrate, by order dated 26.5.1995 directed the

present appellants to remove the shop named as ‘R.K. Kitab Ghar”.  The

appellants  being  aggrieved  by  the  said  order,  filed  Criminal  Revision

Application  before  learned  III  Additional  Sessions  Judge,  Jalgaon  on

31.5.1995.   The said  revision  was dismissed  after  hearing  the  parties  on

5.7.1995.

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3. Stand of the appellants was that Section 133 of the Code of Criminal

Procedure, 1973 (in short the ‘Code’) had no application to the facts

of the present case.  The High Court did not accept the plea.  The

High Court’s directions  for removal of the encroachment was stated

to be without jurisdiction.  The High Court did not accept the stand

and dismissed the writ petition as noted above.

4. Learned counsel for the appellants submitted that there was order of

status  quo  and  therefore  the  direction  as  given  is  clearly  without

jurisdiction.

5. Learned counsel for the respondent-State on the other hand submitted

that the order of status quo did not have any relevance so far as the

present dispute is concerned and that it related to a different property.

6.  Section 133 of the Code 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:

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“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 tort”.

7. 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 damage 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 nuisance, 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

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conditional, the order under the latter is absolute. The proceedings are more

in the nature of civil proceedings than criminal proceedings.

8. One significant factor to be noticed is that the person against whom

action is taken is not an accused within the meaning of Section 133 of the

Code. He can give evidence on his own behalf and may be examined on

oath. Proceedings are not the proceedings in respect of offences. The Water

Act and the Air Act are characteristically special statutes.

9. The provisions of Section 133 of the Code can be called in aid to

remove public nuisance caused by discharge of effluents and air discharge

causing hardship to the general public. To that extent, the learned counsel

for the appellant is correct in his submission.

10. The above position is highlighted in  State of M.P. v.  Kedia Leather

and Liquor Ltd. [(2003) 7 SCC 389].

11. 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”.

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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  covers  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 – 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

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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

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or physical comfort.  It itself deals with physical comfort to the community

and not  with those acts  which are not  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

containing  “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.   

12. 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 – that we are accountable for its exercise – 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

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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.                       

13. 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”.

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14. 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.

15. The above position was highlighted in Kachrulal Bagirath Agrawal v.

State of Maharashtra (2005 (9) SCC 36).

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16. In the background facts as noticed above the order passed by the High

Court does not suffer from any infirmity to warrant any interference.

17. The appeal is accordingly disposed of.

……………………..…………J. (Dr. ARIJIT PASAYAT)

……..…………………..………J. (LOKESHWAR SINGH PANTA)

…………………………..……..J (P. SATHASIVAM)

New Delhi, April 15, 2009

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