Gobind Aluminium Works vs Om Parkash Gupta

Pritpal Singh, J.

This petition under section 482 of the Code of Criminal Procedure (hereafter called `the Code'') has been filed by the petitioner firm known own as Gobind Aluminium Works for quashing the complaint dated 31st of January, 1984 (Annexure P. 6) of the respondent Om Parkash Gupta as well as the orders passed in pursuance thereof by the SubDivisional Magistrate, Hissar, dated January 31, 1984 (Annexure P. 7) and dated June 30, 1984 (Annexure P 9).

The respondent Om Parkash Gupta filed the complaint (Annexure P. 6) under section 133 of the Code in the Court of the SubDivisional Magistrate, Hissar, alleging that the petitioner firm had installed a factory in a house adjacent to his own house which is causing public nuisance as the working of the factory produces loud noise which is detrimental to the physical and mental wellbeing of the inhabitants of the locality and further that the smell and gas produced by the acids used in the factory has polutted the atmosphere. On these allegations it was prayed that the petitioner''s factory may be ordered to be close. In pursuance of this complaint the SubDivisional Magistrate, Hissar, served a conditional order (Annexure P.7) under section 133 of the Code upon Shri Murari Lal, owner of the petitioner firm, directing him to close the factory within a fortnight or to appear before him on 15th of February, 1984, to show cause why this conditional order should not be made absolute. Consequent upon this order Shri Murari Lal appeared before the SubDivisional Magistrate, Hissar, and contested the complaint of Om Parkash Gupta. Thereupon the SubDivisional Magistrate passed order dated June 30, 1984 (Annexure P.9) under section 137 of the Code giving him opportunity to produce evidence to prove the denial of the existence of public right in respect of the factory.

The contention of the petitioner''s counsel is that the provisions of section 137 of the Code are not applicable to the present case and, therefore, the SubDivisional Magistrate erroneously ordered the petitioner firm to produce evidence to prove the absence of public nuisance. It is submitted that the SubDivisional Magistrate after issuing the conditional order under section 133 of the Code should have proceeded under section 139 of the Code considering this case to be a summons case. This contention appears to be well founded.

The provisions of section 137 of the Code are not attracted in all cases wherein conditional order for removal of nuisance is made under section 133 of the Code. The procedure provided in section 137 of the ''Code is confined to those cases only where an order is made for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way river, channel or place. In such a case the Magistrate is competent to question the alleged defaulter as to whether he denies the existence of any public right in respect of the way, river, channel or place.

If he does so, the Magistrate before proceeding under section 138 of the Code is required to enquire into the matter to find out if there is any reliable evidence in support of such denial. In the present case the order under section 133 of the Code has not been made for the purpose of preventing, obstruction, nuisance or danger to the public in the use of any way, river, channel or place. On the other hand the complaint against the petitioner firm is that it is running a factory in its own premises which is causing public nuisance. It is not alleged in the complaint that any public right exists in respect of the factory. On the other hand the running of the factory is alleged to be injurious to the health and physical comfort of the residents of the vicinity. Thus, in pursuance of the conditional order under section 133 of the Code no occasion has arisen for the Sub Divisional Magistrate to question the petitioner regarding the existence of any public right in respect of any, river, channel or place. I am, therefore, of the considered opinion that the provisions of section 137 of the Code have no application to the present case. The procedure which is required to be adopted by the SubDivisional Magistrate consequent upon the order under section 133 of the Codes is provided in section 138 of the Code which lays down that if the person, against whom an order under section 133 of the Code is made, appears and shows cause against the order, the Magistrate shall take evidence in the matters in a summons case.

As a result of what is stated above, the order of the SubDivisional Magistrate, Hissar, dated June 30, 1984 (Annexure P.9) is set aside and the learned Magistrate is directed to proceed further in the case as provided under section 138 of the Code. The parties have been directed to appear before the SubDivisional Magistrate, Hissar on November 2, 1984.

JUDGMENT accordingly.