TaxTMI 
TaxTMI 
2004 (9) TMI 656
X X X X Extracts X X X X
X X X X Extracts X X X X
....ional court should not have interfered with it. Backgrounds facts as per the complainants are as follows: The original non-applicant M/s. Ramchand Bhagirath is a proprietary concern of Bhagirath Ramchand Agrawal (since deceased). He was a commission agent in a Kirana goods and was also a wholesale dealer in dry chillies. In Ansari Ward of Gondia city, he had a godown in a double storied building known as Vishnu Kunj where he used to store large quantity of chillies. The applicants before learned SDM are residents of Ansari Ward which is mainly a residential locality. Present appellant No.1 being a wholesale dealer in dry chillies, everyday trucks loaded with dry chillies come to his godown and then the same are unloaded and stored in the godown. Similarly, loading of dry chillies also goes on for distributing the same to his customers. This has been going on since several years and it appears to have become a routine thing. The applicants however made a grievance that on account of storing of dry chillies in the godown as well as the work of loading and unloading thereof the health and physical comfort of the residents in that locality were affected and it has become practica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Code, operative part of which reads as follows: "The non-applicant is hereby directed that he will not keep, store and transport chillies in the godown, Vishnu Kunj as the same is injurious to the health and physical comfort of the community and he shall also remove all the goods stored therein. This order shall be given effect from 22nd February, 1989. Notice in form No.21 be issued to the non- applicant." Feeling aggrieved by this order, the present appellants preferred Criminal Revision Application No.17 of 1989 in the court of the Additional Sessions Judge, Gondia. The learned Additional Sessions Judge proceeded to reassess the evidence adduced by the parties and came to the conclusion that the learned SDM, committed error in holding that the business of the non-applicant causes public nuisance. He further held that the learned SDM ignored the evidence adduced on behalf of the non-applicant and attached too much importance to the evidence of the applicants. The learned Additional Sessions Judge further held that the learned SDM had arbitrarily used his discretion in favour of the original applicants and, therefore, it was a fit case to interfere with the impugned order....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nal jurisdiction learned Sessions Judge should not have interfered with the well- reasoned and well-merited order passed by the learned SDM. The High Court, therefore, analysed the factual and legal position afresh and came to the conclusion that the order passed by the learned SDM under Section 133 of the Code was justified. Section 133 so far as it is relevant for our purpose reads as follows: 133. CONDITIONAL ORDER FOR REMOVAL OF NUISANCE. (1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers - (a) xx xx xx (b) that 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; or (c)to (f) xx xx xx such Magistrate may make a conditional order requiring the person causing such obstru....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rove 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 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". 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....