Himmat Singh and Others vs Bhagwana Ram and Others

N.C. Sharma, J.—Bounded by main road and Bal Niketan on its front side, hack of Reserve Police Lines on the other, Ratanda area on its one corner and the main Road and Circuit House, Jodhpur on the other, there lies a sufficiently big area of land which it appears, belonged to former ruler of the erstwhile princely State of Jodhpur named Maharaja Ajit Singh and which has now been named after him as Ajit Colony, This big area of land was an open land. It appears that in and after the years 1974 or so, non-petitioners started their trade of cutting cattle-fodder bought to their ''tals'' and selling them on commission basis on different portions of this land. Non-petitioners 1 and 5 have deposed the they had taken land of their ''tals'' on rent. Process of colonisation over this land seems to have started from the year 1980 or so. Residential plots had been carved out on this land as appears from the two plans produced by the petitioners which are at page A3/15 and A3/24 of the case file of the Court of City Magistrate, Jodhpur. Plan at page A3/15 reveals that about 300 residential plots had been carved out. It might be that Maharaja Ajit Singh had been, or was disposing of these plots to various persons. Near about 200 residential houses have already been constructed and the colony named Ajit colony very much appears to have become a residential colony.

As already stated ''tals'' of fodder run by non-petitioners still occupy sufficient area of the land. Fodder is brought during the night or in the early hours of the morning to these ''tals'' in trucks and trucksare unloaded in the morning and fodder is cut in small pieces by the non-petitioners to make it a cattle-feed by electric operated machines attached to the rear of the tractors. This is going on since 1974 and thereafter.

Four applicants before City Magistrate, Jodhpur in their joint application u/s 133. Cr. P.C. were Minimal Singh, Mishri Mal, Peer Singh and Gulab Singh who respectively own plots Nos. 92, 64B and 56B in Ajit colony except that Mishri Mal is tenant in house on Plot No. 58 owned by Jawahar Lal Jain. Initially Bhagwan Ram, Ram Chander, Chotii Ram, Chawar Chand and Mool Chand Tal holders'' were non applicants before the City Magistrate, Jodhpur to which Ganga Ram, Tara Chand, and Bhanu Ram were further added as non-applicants by Himmat Singh and others.

The grievance of the petitioners Himmat Singh and said three others before the Executive Magistrate was that the existence and running of cattle-fodder ''tals'' by non-petitioners was causing much discomfort and inconvenience to all the residents of the newly developed Ajit Colony and also to those officials who came on duties and stay in Circuit House, Jodhpur. The. Electric operated machines used to cut the fodder create untolerable noise and substantially disturb the physical comfort and sleep during night of the residents. Sandladen wind containing particles of fodder blows out from the electric-operated machines and it widely spreads over the roofs and enters inside the houses of the residents of the locality. They are not able to sleep during summer over the roof of their house and cannot sundry their wet garments outside. Sand-laden wind also enters inside the chowk and rooms of the houses which is injurious to health and more so, when at least four residents of this colony are asthametic. The sand carried through air pierces into the eyes and particularly affects the eyes of children. There is a godown of gas cyliners of Shiv Gas Company near four of the ''fodder tals'' and also a petrol pump near one of the ''tals''. If by inadvertence or per chance, a lighted match-stick, thrown after lighting a ciggerateorbiri, happens to fall on the fodder stock, it will turn the fodder into flames and might result in serious calamity to the life and property of the residents of Ajit Colony.

It may be mentioned here that in the affidavits which the petitioners had filed before the City Magistrate, Jodhpur, they had sworned that non-petitioners Nos. 1 to 5 had their ''Fodder tats'' on the public ways passing in Ajit Colony and that they had obstructed the public ways since last 10 or 12 years. Five or seven days before the date of swearing of the affidavits (i.e. on or about May, 8-9-1984 or so), these non-petitioners received fodder in abundance and they unloaded the same in the way and blocked it. Non-petitioners in the reply stated in para 3 that at places where they were carrying on their fodder trade, there was never a way and nor did any way presently exist. Non-petitioners had filed their reply on June 11 1984. On July 9, 1984 an application was filed on behalf of the petitioners that the non-petitioners had removed the fodder from the public way and, therefore, there was no necessity to enquire about alleged obstruction in the use of public ways in the colony u/s 137 Cr. P.C. They prayed that their evidence may be recorded u/s 138(1) Cr.P.C. and the conditional order passed by the City Magistrate on June 1, 1984 may be made absolute u/s 138(2) Cr. P.C.

It appears that the City Magistrate had also called a report from the Station House Officer, Police Station, Udai Mandir, Jodhpur and the Station House Officer gave his report on May 31, 1984, after recording the statements of the petitioners, supporting the correctness of the application, that had been submitted by the petitioners on May 28, 1984 before the City Magistrate, Jodhpur u/s 133 Cr. P.C. praying that the obstruction in the public way be removed and non-petitioners Nos. 1 to 5 be desisted from cutting fodder and running cattle-feed ''tats'' in Ajit Colony, Jodhpur and further to remove their ''tals'' and the fodder from the colony. As already stated on June 1, 1984 the petitioners Nos. 6, 7 and 8 also as parties.

City Magistrate passed a conditional order on June 1, 1984 under Sub-section (1) of Section 133 Cr. P.C. requiring non-petitioners to remove the cattle fodder from the public ways and to remove their ''tals from the public way as well as the nuisance caused by operating the electric operated fodder-cutting machines and if they object to do so, to appear and show cause why the order should not be absolute. The grievance regarding obstruction of public ways in the colony has already been given a go-bye by the petitioners on July 9, 1984.

Non-petitioners showed cause on June, 11, 1984. They pleaded that while non-petitioners Nos. 3 and 5 were carrying on cattle fodders trade on private plots after taking the plots on rent since last about 20 years, other non-petitioners were carrying on the said trade for about last 10 years. They had neither created any obstruction in the alleged way and nor caused any nuisance. It was also pleaded that they did not carry their trade during night. Few residential houses have been constructed in the locality lately but the non-petitioners had neither caused obstruction in the public way and nor there was any imminent danger or injury of serious kind to the public.

The City Magistrate, Jodhpur after recording evidence adduced by the parties and hearing their counsels, by his order dated Feb 19, 1985 held that the case pleaded by the petitioners stood substantiated and made his conditional order dated June 1, 1984 absolute and directed the non-petitioners to desist from carrying on their trade of cutting and selling fodder at the places in question and to remove the fodder within ten days. Non-petitioners filed a revision before the Sessions Judge, Jodhpur against the order of the City Magistrate. Sessions Judge, Jodhpur was himself living in a house in Ajit Colony situated near a fodder cutting ''tal'' and, therefore, he moved for transfer of the revision to some other court. This Court by its order dated March 15, 1985 transferred the revision to the Court of Sessions Judge, Pali. The Sessions Judge, Pali by his impugned order dated April 8, 1985 accepted the revision filed by the non-petitioners and set aside the order of the City Magistrate, Jodhpur dated February, 19, 1985. The petitioners have, consequently, come in revision to this Court against the order of the Sessions Judge, Pali.

The Sessions Judge, Pali has been of the opinion that there had neither been any complaint from the side of the Municipal Council or its Health Officer nor from the side of the Petrol Pump or Gas-cylinder godown and nor from the Manager, Circuit House, Jodhpur. There was also no grievance from the side of colonisers of Ajit Colony. In such circumstances, it was held, the findings of the City Magistrate, Jodhpur that fodder-cutting machines caused noise or that sand-laden wind spread and affected the health or comfort of the residents of Ajit Colony could not be sustained. According to the Sessions Judge, Pali the case of the petitioners fell within the category of private nuisance and redress against that could be obtained by the petitioners only from a civil court. He held that remedy for private nuisance did not lay u/s 133 Cr. P.C. which was meant to meet with urgent or emergent situations of public nuisance as a preventive measure. According to him there was no grievance from public at large against the carrying on of the trade of fodder-cutting and selling by the non-petitioners at the places where they were carrying it.

It is quite clear from the above narration that so far as the factual aspect of the matter is concerned, there is not much dispute between the parties. The non-petitioners cut the fodder by electric-operated machines attached to the tractors. Bhagwana Ram non-petitioner has, however, deposed that he carries on his fodder-work from 8.00 A.M. to 6.00 P.M. and does not work during night hours. He has also stated that Ajit Colony is located at a distance of about half-kilometer from the place where his fodder ''tal'' is situated. Houses of one Executive Engineer and that of Heera Lal Vishnoi are located near Bhagwan Ram''s fodder ''tal''. With regard to godown of gas-cylinders, he has stated that it is at a distance of one kilometer from his ''tal''. Fodder is brought to the ''tals'' during night by trucks which are unloaded in the morning and fodder is cut during the day. Peer Singh petitioner has deposed that he is living in his own house in Ajit Colony since about the year 1980. There is road, 50 feet wide in front of his house and at a distance of 100 feet from his house, there are fodder ''tals.'' Gulab Singh petitioner is a tenant of Rajendra Singh who has a house in Ajit Colony. Gulab Singh is , tenant since the year 1980 or so. House of Rajendra Singh is stated to be at a distance of about 100 or 125 feet from the fodder-tals of Chanwar Lal. Distance between the fodder-tals of Bhagwan Ram and Chotu Ram non-petitioners is said to be 300 to 400 feet. The ''Fodder-tals'' exist since before the residential houses were started to be constructed in Ajit Colony. The non-petitioners have submitted a rough-sketch showing the location of their tals which is at page A5/5 of the file of the City Magistrate, Jodhpur. The Station House Officer P.C. Udai Mandir, Jodhpur had also prepared a ''nazri plan'' which is at page A3/31 of the City Magistrate file. Nazri plan prepared by the S.H.O. goes to show that house of one Jalam Singh is near the ''tal'' of non-petitioner No. 4. Tal of Mool Chand non-petitioner No. 5 is near the petrol pump. In the ''nazri-plan'' prepared by the police, the ''tals'' are shown to be located at places indicated by the police as ''rasta''. Bhagwana Ram non-petitioner has deposed that as a matter of fact, his trade is not a nuisance to any one. The real reason for these proceedings is that some persons have purchased plots of land over which the ''tals'' are located and these persons want somehow to eject the ''tal-holders'' from the land. The same thing has also been deposed by non-petitioner No. 4 in his deposition.

It appears clearly that there are not less than five ''fodder-tals'' in the locality now known as Ajit Colony. Out of the ''fodder-tal-holders'', three non-petitioners have been examined in the case. They are non-petitioners Nos. 1, 3 and 4. It is true that they are trading in cutting of fodder and selling the same at this place since 1974 or so. It is equally true that heavy loads of trucks come to these ''tals'' and unload the fodder which is cut by the non-petitioners by electric-operated machines attached to tractors and then the cattle-feed is sold on commission basis. It cannot also be denied that since 1980 and onwards residential houses have been constructed on the plots of Ajit Colony. About twenty three persons have filed affidavits before this Court that their residential houses exist in Ajit Colony. Non-petitioners also do not deny that since 1980 residential houses have started coming in existence in Ajit Colony. It seems that former Maharaja Ajit Singh, after making sub-division of the land, has carved out plots and has allotted plots to various persons over which residential houses are constructed. This Ajit Colony is ideally located just opposite Circuit House, Jodhpur and also adjoining roads going to Courts, Ratanada and Rai Ka Bag Station. It is obvious that if full loads of truck containing fodder are unloaded near these residential houses in Ajit Colony and the fodder is cut by five ''tal-holders'' by electric operated machines even during the whole day. considerable noise emits and sand-laden wind containing small particles of fodder must, in all probability, blow out from the electric-operated machines and spread over in the air and move in the direction in which the wind is blowing. It is a daily affair. This sand is bound to spread over the roof of residential houses in the locality and even to enter into the compounds and rooms of the houses constructed in Ajit Colony. There is also bound to remain continuous noise on account of the cutting of fodder from at least five electric-operated machines. Generally these machines may not operate during night but in seasonal months, the possibility of night operations, cannot be ruled out. Trucks reach the ''tals'' during the night or early in the morning and unload considerable fodder. It is bound to cause annoyance to the people who dwell or occupy residential houses in Ajit-Colony. Carrying on noisy trade which blows out sand-laden wind containing particles of fodder which go over the roofs or inside the houses of residents will amount to a public-nuisance, if by reason of the injury done to neighbourhood, it interferes with the comfort and enjoyment of all those persons who come within the range of it. Once the noise and dust wind is considered to be a nuisance of the requisite degree, it is no defence to contend that it was in consequence of the lawful trade or business. There is not. and possibly there cannot be a devise to control the noise or the sand-laden wind spreading when the ''fodder-tals'' are being run on open land with no mechanical devise or contrivance to prevent the dust from spreading in the air and reaching the houses in the neighbourhood. Any inadvertent dropping of a lighted match stick can engulf the locality in disastrous fire which may cause loss to persons and property of those who are living in Ajit Colony. Thus there is danger to the lives, safety and confort to a fairly large section of the public in the neighbourhood. Carrying on trades causing intolerable noises, emanating of offensive smells and spreading of dust containing particles of fodder cut while (sic) public nuisance which interferes with health, safety and comfort of the public.

In State of Madhya Pradesh v. Mauji Raghu 1964 (2) Cri LJ 94, non-applicants were owners of a rice mill and allegations were that the husk (''kandha'' and ''bhusa'') produced by the working of the mill and the working of the mill at night was injurious to health and physical comfort of the community. T. P. Naik J., answering the various contentions raised before him by the partners of the rice mills, observed:

The fact that the mill worked at night only during the season which was of about three months duration was not enough to disentitle the inhabitants of the locality to relief u/s 133, Cr.P.C. if it is established that the working of the mill at night during the three months in the season is a nuisance....

The mere fact that the mill did not produce noise as it was run by an electric motor is not conclusive of the fact of its not being a nuisance. It will have to be determined on evidence whether the mill, even though run by an electric motor, produced such noise as effectively and substantially interfered with the health and physical comfort of the community....

The mere fact that there was availability of other remedy under Municipal Acts or that Municipal Board had given license to carry on trade, does not deprive the Magistrate of his jurisdiction u/s 133 of the Code Lalman Vs. Ch. Bishambhar Nath Raghunandan Prasad Vs. Emperor, Raghunandan v. Emperor AIR 1943 Mad 357 : 1944 Cri LJ 533; Rajagopala v. Samdum Begum and AIR 1920 Cal 550 (1) : 1920 21 Cri LJ 669; Krishna Mohan Banerjee v. A.K. Guha relied upon)....

The connotation of the expression ''community'' was examined by Kedall J., in Raghunandan Prasad Vs. Emperor, ...I do not think that there is sufficient reason for holding that a man may carry on trade or occupation or keep goods or merchandise that is injurious to the health of neighbours or of the public without becoming liable merely on the ground that there may be some part of the community which is not affected. If an act is found to be injurious to the physical comfort of neighbour it must also then be held that it is injurious to the physical comfort of the community (See 1904 P&H Re 9 : 1904 1 Cri LJ 512, Phiraya Mal v. Emperor and AIR 1934 Nag 19312), Gajadhar v. Emperor)...

As pointed out in Sheikh Mohidin (1883)2 Weir 59, no man can acquire a prescriptive right to commit a public nuisance. Thus a long enjoyment could not legalise a public nuisance.

Reference may also be made to yet another decision of Madhya Pradesh High Court in Krishna Gopal Vs. State of M.P., In that case Smt. Sarala Tripathi lodged a complaint that a factory Caplic was being run in House No. 23/2 Manoramaganj, Indore, manufacturing glucose saline where a boiler was installed and coal was used as a fuel. It was hardly 8 feet away from the residence of Smt. Tripathi. The emitted smoke and ash from this boiler caused a great deal of atmospheric pollution resulting in a deleterious effect on the residents of that locality. It was also alleged that the factory was being run round the clock; at times invariably boiling water used to fall in her house. It was urged on behalf of the factory that when only one complainant Smt. Sarla Tripathi had come forward to complain about the nuisance, could it be said that the nuisance complained of, is a public nuisance as contemplated by Section 133 of the Cr. P. C.? V. D. Gyani J., answered:

It is not the intent of law that the community as a whole or a large number of complaints come forward to lodge their complaint or protest against the nuisance; Section 133 does not require any particular number of complainants...

Pollutions discharged from the ''chimney'' knows no frontiers of localities and very often they lead to damage not only to the locality or the particular area where the pollution originates but also to the neighbouring localities and adjacent areas.

Greene, L.J., remarkedin Andreae v. Selfridge & Co. (1937) 3 All ER 255:

I certainly protest against the idea that, if persons for their own profit and convenience chose to destroy even one night''s rest of their neighbours, they are doing something which is excusable. To say that the loss of one or two night''s rest is one of those trivial matter in respect of which the law will take no notice appears to be quite a misconception, and if it be misconception existing in the minds of those who conduct these operations, the sooner it is removed the better.

His Lordship Chandrachud C.J. (as he then was) laid down in Gobind Singh Vs. Shanti Sarup,

We are of the opinion that in a matter of this nature where what is involved is not merely the right of a private individual, but the health, safety and convenience of the public at large, the safer course would be to accept the view of the learned Magistrate, who saw for himself the hazard resulting from the working of the bakery.

It is equally no defence to say that the petitioners themselves came to the nuisance (See Bliss v. Hall (1838) 4 BNC 183 at page 186, per Tindal, C.J. and Miller v. Jackson (1977) 3 All ER 338).

Learned Counsel for the non-petitioners relied upon the decisions in Rameshwar Prasad Vs. State of Bihar, and Tara Chand v. State of Rajasthan 1981 Raj Cri C 272. Facts in Rameshwar Prasad''s case (supra) were very much distinguishable. In that case, alleged nuisance was stated to be from obstruction caused by a house constructed by on railway pipe land seven years before the complaint and the public did not appear to have been inconvenienced by it and all of a sudden after a lapse of seven years, it was found that there had been an encroachment. Section 133, Cr. P.C. was hardly applicable to such a case. As to Tara Chand''s case (supra), suffice it state that the ice factory was not in any residential area but was in industrial area where other persons were also running their factories and industries and it was a case of leakage of ammonia gas which leakage was stopped immediately. The Magistrate was, therefore, clearly wrong in closing the ice factory itself. The Court gave directions to the factory owner to make proper arrangement for keeping the ammonia gas in a proper and safe manner so that it may not leak out either from storage or pipes in order to cause imminent danger or nuisance to the public or the residents of the locality. The present case is of a type where five fodder-cutting operations are being daily undertaken completely in open theatre and sand-ladden wind is let loose to spread with no fronteries to check it. Such a sort of public nuisance cannot be allowed to perpetuate.

Learned Counsel for the non-petitioners urged that the sinister motive of the petitioners is to eject the non-petitioners under the cover of the proceedings so that this scheme of colonisation may go through easily. There appears to be ingrain of truth in what the learned Counsel for the non-petitioners contends. But neither the City Magistrate, Jodhpur has power u/s 133, Cr.P.C. to eject the non-petitioners from the land in their actual occupation and nor this Court would allow that to be done.

Lastly, the learned Counsel for the non-petitioners stated at the Bar that non-petitioners are ready to give an understanding that they will not cut the fodder and will not sell the cut cattle-feed over the places in their occupation. That is precisely this Court is ordering and nothing less than this and nothing more.

This revision is allowed, the order of. the Sessions Judge, Pali dated April 8, 1985 is set aside and it is ordered that the non-petitioners will immediately desist from carrying on their trade of getting trucks of fodder unloaded, of cutting the fodder with the aid of electric machines or otherwise at their fodder ''tals'' and to sell such cut cattle-fodder there. This order will in no way affect the occupation of the non-petitioners on those portions of the land where their respective cattle-fodder ''tals'' existed on the date the petitioners filed the application u/s 133, Cr.P.C. before the City Magistrate, Jodhpur.

Order pronounced in open Court.