Ram Chandra Vaish and Another vs State of U.P. and Others

Amar Saran, J.—This application u/s 482, Cr. P.C. has been filed for quashing the proceedings u/s 133, Cr. P.C. in Case No. 8 of 2002, State v. Kanahiya Lal and another Case No. 8 of 2002, pending in the Court of City Magistrate, Allahabad.

By the impugned order dated 13.5.2002, learned City Magistrate had issued a conditional order u/s 133(1), Cr. P.C. mentioning that the S.H.O. police station Kotwali had reported on 2.7.2001, that the building situated at 56 Shiv Charan Lal Road belonging to Kanahiya Lal Gupta and Shashi Gupta, was in a dilapidated condition. At the back side of that house is the garage in which applicant No. 2 was running a flour mill. Due to the running of the mill, cracks had appeared on the wall and the roof above the garage room could capsize. Vibrations were felt on the room above and if the flour mill was not shut down, the house would collapse endangering life.

The Mukhya Nagar Adhikari, Nagar Nigam, Allahabad, however, reported on 12.12.2001 that applicant No. 1 was a tenant of that garage and he had been running his flour mill there for a long period of time. This flour mill was being run by the applicant No. 2, Durjan Yadav. There was no crack, according to this report, but only the plaster has come out, which could be repaired.

The City Magistrate however was pleased to pass the impugned order u/s 133(1), Cr. P.C. asking the parties to appear and show cause on 27.5.2002 why the flour mill should not be closed down.

The applicant No. 1 filed an objection and showed cause on 1.7.2002, wherein he stated that it was only in view of the landlord and tenant dispute with opposite party No. 2, which was pending before the Judge, Small Causes Court, Allahabad that the present proceedings u/s 133, Cr. P.C. has been initiated. In view of the pendency of the civil suit, the proceedings u/s 133, Cr. P.C. ought not to have been initiated. There was no crack in the motor garage, which was being used by the applicants and the building was not in a dilapidated condition. No neighbour was affected by the running of the flour mill. The earlier, landlord never initiated proceedings u/s 133, Cr. P.C. or eviction proceedings against the applicants and proceedings u/s 133, Cr. P.C. could not be initiated on the facts of this case.

Thereafter the applicant moved the present application u/s 482, Cr. P.C. and on 6.8.2002, proceedings in Case No. 8 of 2002, pending in the Court of City Magistrate, Allahabad were stayed by this Court.

It was submitted by the learned Counsel for the applicants that the foundations for taking action u/s 133, Cr. P.C. are absent in this case because admittedly as per the application dated 25.6.2001 for initiating proceedings u/s 133, Cr. P.C., it was mentioned by the opposite party No. 2 that essentially it was the opposite party No. 2 who was affected by the running of the flour mill, because there was danger to the eastern side of the house which could collapse as a result of the vibrations produced by the mill. Although, he also mentioned that this could affect life in the adjoining lane. But this added averment appeared to be by way of afterthought.

It may be noted that u/s 133(1)(b), Cr. P.C. a conditional order may be passed by the Magistrate for showing cause or by removal of a nuisance if 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.

There are no such credible allegations in the present case that the running of the flour mill was injurious to the health or physical comfort of the community, but whatever nuisance existed, it was essentially nuisance to the landlord, namely opposite party No. 2. In these circumstances, initiation of Section 133, Cr. P.C., proceedings do not appear to be proper.

Furthermore, there is some substance in the contention of the applicants that it was out of frustration and in order to put pressure on the applicant No. 1, in the rent control litigation that was pending between the parties that the present proceedings u/s 133, Cr. P.C. has been initiated, even though the necessary legal requirement for initiating proceedings u/s 133, Cr. P.C., were missing. In this connection reference has been made to Kurukshetra University and Another Vs. State of Haryana and Another, , wherein the Apex Court has condemned the tendency of frustrated landlords to invoke the jurisdiction of the criminal courts observing as under:

We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an advocate. He lost in both courts in the rent control proceedings and has now rushed to the criminal court.

This apart, it appears that the flour mill was running for a long time as was reported by the Mukhya Nagar Adhikari, Allahabad and as was mentioned in the conditional order, this is another reason why proceedings u/s 133, Cr. P.C., which are essentially meant for expeditious removal of nuisance should not be allowed to continue in this case at this belated stage.

Learned Counsel for the opposite party Nos. 2 and 3 submitted that as the applicants had already shown cause and filed objections on 1.7.2002 against the conditional order, the proceedings should not be allowed to be cut short and the applicants ought to be directed to pursue the same.

As usually a short time is given when a conditional order is passed for submitting a reply, there is usually a fear in the mind of the litigant that the order would be made absolute, unless objections are filed within time, hence the filing of objections, may be considered a very normal and unexceptionable course of conduct.

There is another reason for this Court overruling the plea of voluntary surrender by the applicant to jurisdiction u/s 133, Cr. P.C., by filing his objections before the concerned Court. In this connection, as I have already indicated above, that as there was basically an individual dispute between two private parties and no question of nuisance or danger to the public or the community at large was involved, hence the very initiation of proceedings u/s 133, Cr. P.C., lacked foundation and were without jurisdiction.

It was also submitted by the learned Counsel for the opposite party Nos. 2 and 3 that the subject matter of this dispute pertained to Section 133(1)(d), Cr. P.C., rather than Section 133(1)(b), Cr. P.C. Section 133(1)(d), refers to a situation when a building or structure is likely to fall down so as to cause injury to person living or carrying on business in the neighbourhood or passing by and hence for removal of that public nuisance. Here the main grouse does not appear to relate to the danger of the buildings capsizing as a result of the running of the garage. It is also not clear whether the garage alone was dilapidated or the entire building, including the portion which was under the control of the landlord. Furthermore, the report of the Mukhya Nagar Adhikari dated 12.12.2001 appears more reliable than the S.H.O.''s report dated 2.7.2001, which mentioned that there was no danger of the building falling down, but only some plaster had peeled off, which could easily be repaired. That there was no clear and present danger from the running of the mill is also borne out from the fact, that there is no evidence that any one has suffered any harm in the period since 6.8.2002 when the Section 133, Cr. P.C. proceedings in Case No. 8 of 2002 were stayed by the orders of this Court, and the mill must have continued to run.

In this case, I find that the main complaint against the applicants were that they were running a flour mill. This activity is covered u/s 133(1)(b), Cr. P.C. and as I have already mentioned above that it was opposite party Nos. 2 and 3, who may have been adversely affected by the applicants running their mill, and not the community or the public at large.

Learned Counsel for opposite party Nos. 2 and 3 has placed reliance on two decisions of this Court. In one case, Geeta Devi and Ors. v. State of U.P. and others 1999 (3) ACR 2518:(40) 2000 ACC 298, the basic charge was that as the structure in question was very old and dilapidated and there was an apprehension that the upper portion may fall down taking life and destroying the property of the general public, this Court had directed the applicants therein to proceed by replying to the notice u/s 133(1), Cr. P.C.

In the second case Smt. Qamar Jahan and Ors. v. State of U.P. and Anr. 1997 (2) ARC 35, where there were reports of the S.O. and Nagar Abhiyanta showing that the building in question was dilapidated and there was threat to the lives of the residents of the area and passers by, this Court had allowed the applicant to raise his objections in the proceedings u/s 133, Cr. P.C., rather than permit quashing of the proceedings at the outset.

Both the cases cited by the learned Counsel for the opposite party Nos. 2 and 3 are clearly distinguishable from the present case, as they essentially apply to proceedings u/s 133(1)(d), Cr. P.C. and not to proceedings u/s 133(1)(b), Cr. P.C. to which, for reasons mentioned hereinabove the present case relates.

It appears that the averments that there could be some risk to passers by can only be made in this case by way of afterthought and as "padding" or "an appendage" to some how enable initiation of proceedings u/s 133, Cr. P.C.

In this view of the matter, no useful purpose would be served in allowing the proceedings u/s 133, Cr. P.C. to continue any further, Parties have the rights to seek appropriate injunctions from the competent civil court.

Accordingly, this application is allowed and the proceedings in Case No. 8 of 2002, u/s 133, Cr. P.C. pending in the Court of City Magistrate, Allahabad are quashed.