Suhelkhan Khudyarkhan
& ANR. Vs. State of Maharashtra & Ors. [2009] INSC 770 (15 April 2009)
Judgment
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
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.
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:
3 "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 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].
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 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 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.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
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 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 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".
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).
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.
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