Suhelkhan Khudyarkhan & Anr vs State Of Maharashtra & Ors

Suhelkhan Khudyarkhan & Anr. ....Appellants

Versus

State of Maharashtra & Ors. ....Respondents

JUDGMENT

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

4 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".

5 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

6 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

7 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

8 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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