Criminal Writ Petition No.428 of 1995

12th June, 2006

Petitioner Counsel: Mr. R. M. DESHMUKH
Respondent Counsel: Mrs. RANJANA REDDY

Cases Cited:
Kachrulal Bhagirath Agrawal Vs. State of Maharashtra, 2004 Cri.L.J. 4634 [Para 4,6,8,9]
Vasant Mhnga Nikumbha Vs. Baburao Bhikanna Naidu, 1995 Supp. (4) SCC 54 [Para 6]

JUDGMENT

JUDGMENT :- Heard both sides.

2. The petitioner, an owner of a Flour Mill, has challenged the order of Additional Sessions Judge, Amalner dated 11.9.95 whereby, his revision petition was dismissed, that resulted into the confirmation of the order passed by the Sub-Divisional Officer, Amalner in S.R. No.1 of 1991, dated 31.3.1992, by which the petitioner was directed to stop his running Flour Mill.

3. The proceeding was initiated based on the complaint filed by one Devidas Kautik Koli and two others, stating therein that due to the running of the Flour Mill, the walls of their houses were damaging and that was creating nuisance also. The S.D.O., Amalner, in his personal visit noted that house having concrete walls, were also shaking due to running of the Flour Mill and this would affect the community at large. The police report also supported the same. Based on that, it was ordered to stop the running Flour Mill. The revisional court has confirmed the said order.

4. The basic provision involved in the present matter is Section 133 of Criminal Procedure Code (Cr.P.C.). Section 133(1)(d) provides that :-

"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 neighourhood 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."

There remains no doubt that the concerned authority has power to deal with the public nuisance. The Apex Court while explaining the scheme of Sections 133 and 144 of Cr.P.C. in the case of Kachrulal Bhagirath Agrawal & Ors. Vs. State of Maharashtra & Ors. reported in 2004 Cri.L.J. 4634, in para 13, has observed thus :-

"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."

5. In the present case interim order in terms of prayer clause (c) has been in operation since 11.1.1996. The prayer clause (c) is as under :-

"Pending hearing and final disposal of this Criminal Writ Petition the order in Sr 1/91 passed by S.D.O., Amalner be stayed."

In view of this stay order, admittedly, the petitioner has been running his Flour Mill uninterruptedly. There is no application or any steps taken by the complainant or even by the prosecution since then to vacate the said interim order. That there is nothing to demonstrate that there was any "public nuisance" or injury or damage caused to the community at large.

6. The Apex Court in the case Kachrulal (Supra) in paras 12 and 13 has further observed that :-

"12. 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 Law of England.

"even in the present day there is no entire agreement as to whether certain acts or omissions shall be classed as nuisance or whether they do not rather fall under other divisions of the law of tort".

13. In Vasant Manga Nikumbha Vs. 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."

7. On record there is a representation, by more than 70 persons of the same village including of the locality which has expressed the need of such Flour Mill in the village. In the present case without going further into the merits of the matter, there is nothing to justify with the evidence on the record, that the said Flour Mill is still causing nuisance and basically to the community at large.

8. The word "community" as referred in Section 133(1)(d) cannot be overlooked while considering the case of the complainant or such complaint. The Apex Court in the case Kachrulal (Supra) at the bottom of para 10 has explained the word "community" as under :-

"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 strait-jacket formula."

9. The allegations are also made about the political rivalry in the village between the parties, that resulted into the complaint.

The Apex Court in the case Kachrulal (Supra) after considering the provision and purpose of Sections 133 and 144 of Cr.P.C. in para 10 expressed as under :-

".......... 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 whole against inconvenience."

10. The Flour Mill or such other trade cannot be run without a permission from the competent authority under the relevant law. The said authorities are free to take appropriate action or steps, if the case is made out and or the action of the petitioner is contrary or against the law. The complainant is also at liberty to file fresh complaint before the competent authority, if there is still such nuisance as contemplated under Sections 133 and 144 of Cr.P.C.

11. In view of this, the present petition is to be allowed. There is no substantial reason to justify the closure of the Flour Mill in question. The impugned order therefore, is quashed and set aside. The petition is allowed. Rule made absolute.

Petition allowed.