Abdul Aziz Mir vs Javaid Ahmad Khan

R.C. Gandhi, J.—This Revision Petition has been preferred against the order No. 107-11/DMS dated 27-07-2002, passed by the District

Magistrate, Srinagar.

The brief facts are that an application dated 09-05-2002 came to be presented before the District Magistrate, Srinagar, invoking his jurisdiction

u/s 133 Cr.P.C. for removal of Bandsaw Mill of the petitioner situated at Iqbal Colony, Zainakoot, Srinagar, on the ground that it has been

installed in the residential area and is a source of noise and pollution and thereby has made the human life hazardous and difficult. The District

Magistrate, Srinagar, endorsed the application to the subordinate Officers for report. The Patwari, in his report dated 1.1.2002, has submitted that

the Bandsaw Mill is situated in Khasra No. 2133/262. The noise of the Bandsaw, being driven by Diesel Engine, effects the education of the

children living in the nearby houses. The people are facing difficulty because of noise pollution. The report of the Patwari has been endorsed by the

Naib Tehsildar to the District Magistrate. On the basis of report, District Magistrate has passed the following impugned order:-

Whereas, an application was moved by the residents of Iqbal Colony, Zainakoot, Srinagar, mentioning therein that they have suffered a lot on

account of installation of a Bandsaw in their vicinity.

Whereas, a report in this regard was called from Tehsildar, Srinagar, which reveals that one Abdul Aziz Mir S/o Ab. Rehman Mir R/o Iqbal

Colony, Zainakoot, Srinagar, has installed a Bandsaw Mill in the residential area, in Zainakoot, which creates problems and disturbs the peaceful

life of the inhabitants.

In view of the report of Tehsildar, Srinagar and in exercise of the powers, conferred u/s 133 Cr.P.C, the operation of the said Bandsaw Mill is

hereby stopped with immediate effect.

The impugned order has been challenged by the petitioner on the ground that it is not in conformity with the provisions of law laid down in

Sections 133 to 137 Cr.P.C. In support of his plea he has also relied upon the judgements reported in Kishorilal Vs. State, and Rameshwar

Prasad Vs. State of Bihar, .

Heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner has submitted, challenging the impugned order, that the Bandsaw Mill has been installed since many years

even prior to the construction of residential houses. It was installed initially by one of the successor of the respondents. The parties are litigating

over the property. It is not the case of nuisance but a personal enmity which prompted the respondents, to file an application with a purpose to

harras and damage the petitioner. The property in dispute has been purchased by the petitioner from a member of the family of the respondent.

Therefore, it is not a case of noise pollution or nuisance but a personal grievance and private nuisance. Therefore, placing reliance on 1998 SLJ 23,

he has submitted that the complaint be dismissed and the petitioner be directed to seek remedy in a Civil Court.

His further submission is that the impugned order is illegal, as it does not stand the test of law as contained in Sections 133 to 137 Cr.P.C. To

appreciate the plea of learned counsel for the petitioner, Sections 135 and 137 of Cr. P.C. are reproduced hereunder-.

Persons to whom order is addressed to obey, or show cause--The person against whom such order is made shall-

(a) perform, within the time and in the manner specified in the order, the act directed thereby; or

(b) appear in accordance with such order and show cause against the same.

Procedure where he appears to show cause--

(1) If he appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case.

(2) If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case.

(3) If the Magistrate is not so satisfied, the order shall be made absolute.

If a complaint is instituted invoking jurisdiction u/s 133 Cr.P.C., the Magistrate is empowered, on taking such evidence as he thinks fit, to pass a

conditional order requiring the person causing such nuisance within the time fixed in the order, to remove such obstruction. Section 135 Cr.P.C.

envisages the issuance of notice to appear before the Magistrate on a date to be fixed by the conditional order to show cause against the said

order u/s 137 Cr.P.C., if such person appears and show cause against the order, it is obligatory upon the Magistrate to take evidence in the matter

treating it as a summons case and on appreciation of the evidence produced by the parties before the Magistrate, if he is satisfied that the order is

not reasonable and proper, he will stop the proceedings or vice versa.

The Magistrate before passing the impugned order has not followed and adopted the procedure prescribed by law as contained in the above

extracted provisions of law. Any order passed in violation of the mandatory procedure prescribed by law cannot be maintained and deserves to be

set aside.

The order of the Magistrate being not sustainable, is set aside. Record be sent back to the District Magistrate, Srinagar who shall proceed to

decide the application of the respondents in accordance with law. However, the Magistrate is at liberty to pass the conditional order of closure if

he is satisfied that the nuisance, if any, is required to be checked immediately.