Ram Autar Vs. State of U. P  INSC
187 (3 May 1962)
03/05/1962 GUPTA, K.C. DAS
GUPTA, K.C. DAS KAPUR, J.L.
CITATION: 1962 AIR 1794 1963 SCR (3) 9
Public Nuisance-Auctioning vegetables in
private house--- Carts of sellers kept on public road-Unlawful obstruction, if
auctioneers responsible--Noise caused in auctioning- Whether trade injurious to
public health and comfort-Code of Criminal Procedure, 1898 (Act V of 1898), s.
The appellants carried on the trade of auctioning
vegetables in a private house in the Subzimandi quarter. The persons who
brought vegetables for sale kept their carts on the public road where they
caused obstruction to traffic. The noise caused by the auctioning caused
discomfort to persons living in the locality. An order was passed under s. 133
of the Code of Criminal Procedure restraining auctioning vege- tables in their
Held, that the order was not justified under
s. 133 of the Code. Merely because the appellants carried on auctioning in
connection with which the carts were brought, they could not be considered to
have caused the obstruction. In a trade like auctioning which has to be carried
on as necessary for the well being of the community some amount of noise has to
be borne by the public. Section .133 was not intended to stop such trades
merely because of the discomfort caused by the noise.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 79 of 1960.
Appeal by special leave from the judgment and
order dated August 18, 1959, of the Allahabad High Court in Criminal Revision
No. 947 of 1959.
10 C.L. Prem, for the appellants.
G.C. Mathur and C. P. Lal, for the
1962. May 3. The Judgment of the Court was
delivered by DAS GUPTA, J. -- This appeal by special leave is against the order
of the High Court at Allahabad dismissing the application for revision of an
order under s. 133 of the Code of Criminal Procedure.
The three appellants carry on the trade of
auctioning vegetables. These vegetables, it appears, are brought in carts which
are parked on the public road outside the building where the auctioning takes
place. There was some dispute between these appellants and the Municipal Board
which it is suggested by the appellants was really behind the move to get this order
under s. 133 passed against them.
It is unnecessary, however, for us to
consider that matter.
What appears to be clear is that the trade is
carried on in a private house in the subzimandi quarter and it dose happen that
some amount of inconvenience is caused to people who pass by the public road
because of the carts which necessarily come near this house. The real question
is, whether because this trade of auctioning vegetables which the appellants
carry on in their private house produce the consequence that people passing by
the road are put to inconvenience, action can be taken under s. 133 of the Code
of Criminal Procedure. The High Court seems to be of the opinion:- "when
it is clear that the business of auctioning vegetables cannot be carried on without
causing obstruction to the passersby, the conduct of the business can be
prohibited, even though it if; carried on in a private 11 It seems to us that
this proposition has been put too widely. Section 133 of the Code of Criminal
Procedure empowers action by the District Magistrate, Sub-Divisional Magistrate
or Magistrate Ist class to remove public nuisances in certain circumstances.
Two out of the several cls. of s. 133(1) in which these circumstances are set
out, with which we are concerned, are the first and second clauses. The first
clause provides for action by Magistrate where he considers, on receiving a
police-report or other information and on taking such evidence as he thinks
fit, 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. The second clause deals with the position where 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.
It is difficult to see how the first clause
can have any application. Unlawful obstruction, if any, is certainly not caused
by the people who carry on the trade of auctioning.
If the obstruction caused by keeping the
carts on the road can be considered to be unlawful obstruction within the
meaning of this clause-about which we express no opinion action can be taken
against the persons causing such obstruction. The obvious difficulty in the way
of that might be that the persons who bring the carts are not the same from day
to day. But whether or not any action is possible under s. 133 against the
persons bringing the carts, we are unable to agree that merely because the
appellants carry on auctioning in connection with which the carts are brought,
they can be considered to have caused the 12 obstruction. In our opinion, the appellants
cannot be considered to be the persons causing obstruction.
Turning now to the, next clause, the question
arises how the conduct of this auctioning trade is injurious to the health or
physical comfort of the community. Undoubtedly, some amount of noise and
perhaps, a great deal of noise is caused when the auction is going on. That
however is a necessary concomitant of buying 'and selling large quantities and
it will be unreasonable to think that merely because, some amount of noise is
caused which people preferring perfect peace may not like, this is injurious to
the physical comfort, or health of the "community". It appears to us
that the conduct of trades of this nature and indeed of other trades in
localities of a city where such trades are usually carried on, is bound to
produce some discomfort, though at the same time resulting perhaps in the good
of the community in other respects. If a trade like auctioning which has to be
carried on as necessary for the well being of the community, some amount of
noise has to be borne in at least that part of the town where such trade is
ordinarily carried on. In making the provisions of s. 133 of the Code of
Criminal Procedure, the legislature cannot have intended the stoppage of such trades
in such part of the town, merely because of the discomfort" caused by the
noise in carrying on the trade. In our opinion therefore, the slight discomfort
that may be caused to some people passing by the road or living in the
neighbourhood cannot ordinarily be considered ;to be such as to justify action
under s. 133 of the Code of Criminal Procedure. We do not think that the orders
are justified under s. 133. Accordingly, we allow the appeal and set aside the
order made by the Magistrate.