Makhan Lal, Suresh Kumar and Chhajju Ram vs Buta Singh

Hemant Gupta, J.—Challenge in the present revision petition is to the order passed by the learned Additional Sessions Judge, Mansa in revision petition filed by the complainant u/s 133 Cr.P.C. which was dismissed by the learned trial court on 27.2.1998.

The complainant has alleged that he is resident of Ward No. 15, Mansa which is a residential colony. The petitioners, herein have installed an Atta Chakki and cotton ginning Machine in front of the house of the applicant without permission of the Municipal Committee. It was also alleged that by working of Atta Chakki and Cotton Ginning Machine, the dust and cotton particles, are created and they spread pollution in the air which is harmful to the health of the inhabitants of the area. It also create vibrations which effected their residential houses and also it is a cause of nuisance to them. The tractor trolleys which being grain at the Atta Chakki are parked in the street which is not sufficiently wide and that obstructs the passage of the general public as well as of the applicant a house. He and his wife are said to be suffering from Tuberculosis.

Notice of the complaint was given to the present petitioner who submitted a written reply. Locus standi of the complainant to file the complaint in individual capacity was denied. It was stated that Atta Chakki and Cotton Ginning Machine are working for the last so many years. The tractor trolleys come there in a very small number and they do not obstruct passage of the general public.

The learned Magistrate recorded the statements of the complainant as A.W.3 as well as A.W.1 Amar Singh and A.W.2 Roop Chand whereas on behalf of the petitioners R.W.1 Chhaju Ram has appeared as also he produced R.W.2 Tek Singh and Babu Ram R.W.3. After going through the entire evidence, the learned trial Magistrate dismissed the complaint finding that flour mill was installed number of years ago. It has come in the evidence of Amar Singh who has a house adjacent to Chakki that flour mill is working for the last 7-8 years. On the other hand Roop Chand has admitted that the flour mill is working since last 8-9 years. Roop Chand has a house adjacent to Buta Singh Complainant. It was stated that the flour mill is covered with the roof due to which nuisance or dust do not spread outside. There is no obstruction of any type in traffic also. The learned trial court relied upon Darshan Singh and Anr. v. Malkiat Chand and Ors. 1990 (1) R.C.R. 462 and Zorawar Singh v. Rajinder Singh alias Sher Singh and Anr.1990 (1) R.C.R. 467 to hold that the proceedings u/s 133 Cr.P.C. cannot be initiated since the flour mill has been installed 8-9 years ago.

The object of Section 133 Cr.P.C. is to enable an Executive Magistrate to pass orders speedily in a case where public nuisance or obstruction has been made in the right of the public at large. The object of Section 133 Cr.P.C. is not to enable a complainant to obtain order to safeguard his civil right nor he can obtain any relief in connection with his legal rights. The order contemplated u/s 133 Cr.P.C. is for the benefit of public at large. The Hon''ble Supreme Court in Vasant Manga Nikumba v. Baburao Bhikanna Naidu has approved the judgment of madras High Court holding that where the alleged nuisance has been in existence for a long period and the circumstantial evidence did not prove that an urgency existed warranting the taking or actin u/s 133 Cr.P.C., it has been held that no action can be taken under this section where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil court. Section 133 is attracted only in case of emergency and immediate danger to the health or physical comfort to the community. While approving the Madras High Court Judgment the Hon''ble Supreme Court observed as follows:

"5. In T.K.S.M. Kalyanasundaram v. Kalyani Ammal, the Madras High Court held that the alleged nuisance would have been in existence for a long period. The circumstance and the evidence in that case did not prove that an urgency existed warranting the taking or action u/s 133. No action can be taken under this section where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil court. It was also held that Section 133 is attracted only in cases of emergency and immediate danger to the health or physical comfort of the community. Accordingly on the facts in that case, it was held that there was no immediate danger or emergency for the removal of the structure offending in that case. It is also settled law that recourse to Section 133 could not be a substitute for the civil proceedings and the parties should have recourse to the civil remedy available and should not be encourse (sic encouraged) to taking recourse to the provisions of Section 133 of the Code."

In view of above judgment of the Supreme Court as well as the long binding precedents of this Court such as Pritam Singh etc. Avtar Singh etc. 1973 CLJ 902, Gain Singh and Ors. v. The State of Punjab and Ors. 1970 PLR 468 : 1990 (1) RCR (Crl) 467 (supra) and Madha Singh v. Sadha Singh and Anr. 1986 (1) CLR 694. I am of the opinion that the learned Sessions Judge committed grave illegality and irregularity while directing the petitioners to remove the alleged nuisance from the spot within a period of 3 months either by stopping functioning the Atta Chakki and Cotton Ginning Machine or by shifting the same to some other commercial place, outside the residential colony.

Learned counsel for the complaint has relied upon Bhan Singh v. Mohinder Singh 1997 (3) RCR (Crl) 281. However, the said case is clearly distinguishable as the complaint in the said case was filed within 2 years of the alleged nuisance. Keeping in view the evidence of the complainant as well as the witnesses produced by the complaint, I am of the opinion that the flour mill having installed 8-9 years prior to the filing of the complaint is a good ground to disentitle the complainant.

Therefore, I allow the present revision petition, set aside the order passed by the learned Additional sessions Judge and dismiss the complaint and restore the order passed by the learned trial magistrate. However, it would be open to the complainant to take such other action as may be advised for the redressal of his grievance.