Ramchandra vs State of Rajasthan

Vijay Bishnoi, J.—This criminal misc. petition under section 482 Cr.P.C. has been filed by the petitioner against the order dated 02.07.2011 passed by Additional Sessions Judge, Parbatsar (for short ''the revisional court'' hereinafter) in a revision petition, whereby the revisional court has dismissed the revision petition.

Before the revisional court, the petitioner has challenged the order dated 29.03.2011 passed by Sub Divisional Magistrate, Parbatsar (for short ''the trial court'' hereinafter) in the proceedings under section 133 and 142 Cr.P.C.. The trial court vide order dated 29.03.2011 accepted the complaint filed by the respondent No. 2 and ordered for removal of Bhatti and tin-shade erected by the petitioner in front of his shop situated at bus stand of village Peeh with the help of police.

Brief facts of the case are that respondent No. 2 filed a complaint under sections 133 and 142 Cr.P.C. before the trial court alleging therein that at the bus stand of village Peeh, he is running a fancy store in a shop and adjacent to it, the petitioner is running a hotel in his shop. It is alleged in the complaint that the petitioner has erected Bhatti and a tin-shade on common road in front of his shop 8-10 months ago and prepares sweets, namkins and tea all the time and on account of that, smoke in huge quantity entered into the shop of the respondent No. 2 and on account of that, the fancy items of the shop become deteriorate. It is alleged that despite repeated requests, the petitioner has not stopped to use Bhatti. The trial court, after recording the evidence of both the parties and after taking into consideration the site report prepared by Nayab Tehsildar, has ordered for removal of Bhatti and tin-shade erected by the petitioner in front of shop of the respondent situated at bus stand of village Peeh on the road with the help of the police.

The revision petition filed by the petitioner against the order dated 29.03.2011 has been dismissed by the revisional court by impugned order dated 23.07.2011. Aggrieved by this, the petitioner has filed this criminal misc. petition.

The learned counsel for the petitioner has argued that the proceedings initiated at the instance of the respondent No. 2 under section 133 Cr.P.C. were not maintainable because the alleged public nuisance has not caused any obstruction to public in general but only to respondent No. 2 but the trial court as well as the revisional court have not taken into consideration this aspect of the matter and illegally passed the impugned orders. It is contended that the dispute raised by the respondent No. 2 was personal in nature and not in the public interest, thus, the trial court was not supposed to interfere in the matter and therefore, the order passed by the court below may kindly be quashed and set aside.

In support of above contentions, learned counsel for the petitioner has placed reliance on decision of Hon''ble Supreme Court in Ram Autar Vs. State of U.P., as well as the decisions of this Court rendered in Darwara Singh Vs. The State of Rajasthan and Others, and Vinod & Ors. v. State of Rajasthan, 2008 (1) R.Cr.D 454 (Raj.).

Per contra, learned Public Prosecutor has argued that by erecting Bhatti and tin-shade on the public road, the petitioner has created public nuisance and both the courts below have not committed any illegality in passing the impugned orders and, therefore, no interference is called for.

Heard learned counsel for the parties and perused the impugned orders.

The trial court, while passing the order dated 29.03.2011, has taken into consideration the evidence produced by the parties and has also taken into consideration the report submitted by the Nayab Tehsildar, Peelva. In the report of the Nayab Tehsildar, it is clearly mentioned that the petitioner has erected Bhatti and tin-shade on the public road by making encroachment. The trial court has also observed that from the evidence produced by the respondent No. 2, it is clear that on account of smoke coming out from Bhatti, respondent No. 2 and other persons, who visit the shop of the respondent No. 2 faces a lot of trouble. The trial court has also observed that earlier while passing the order under section 142 Cr.P.C., the petitioner was directed to remove the Bhatti and tin-shade and the Nayab Tehsildar had removed the same but the petitioner has again erected the obstructions. The trial court, while relying on the decision of Hon''ble Supreme Court in Gobind Singh Vs. Shanti Sarup, , has held that the smoke coming out from the Bhatti is not only causing inconvenience to respondent No. 2 but also to public at large and it is dangerous for public health including the health of respondent No. 2.

The revisional court, after taking into consideration the arguments advanced by the counsel for the parties, upheld the order passed by the trial court.

It is true that the shop of the respondent No. 2 is adjacent to the shop of the petitioner and he made a complaint to the effect that on account of smoke coming out from the Bhatti erected by the petitioner in front of his shop, the respondent No. 2 is facing inconvenience and therefore, prayed for removal of the public nuisance. However, the trial court, after pondering over the evidence produced by the parties and after taking into consideration the report submitted by the Nayab Tehsildar concerned, has held that the petitioner has erected Bhatti and tin-shade on the public road by encroaching upon the land and the said obstructions is creating public nuisance. It is also held that from the smoke coming out from the Bhatti, not only the respondent No. 2 but public at large visiting the shops are also facing inconvenience and the flames coming out from the Bhatti situated on the public road can cause a conflagration.

This Court is of the opinion that in the 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 is to remove such public nuisance, which may result a danger to the health, safety and convenience of the public at large.

In Ram Autar & Ors. v. State of Uttar Pradesh (supra), the dispute was regarding the nuisance caused by the auction of vegetables carried on in a private house in a city and the Hon''ble Supreme Court has observed that where the trade of auctioning vegetables carried on in a private house in a city caused some amount of inconvenience to the people passing by the public road outside the building cannot ordinarily be considered to be such as justified auction under section 133.

Here in this case, the public obstructions caused by the petitioner was likely to affect the health of the public at large and was also dangerous to the lives and as such the above mentioned judgment in Ram Autar''s case (supra) is of little help to the petitioner.

In Darwara Singh v. State of Rajasthan & Ors.(supra), the public nuisance complained by the persons regarding the public way was found false because the persons against the complaint was made have sufficiently prove before the Magistrate that the land claimed to be public way was purchased by them from the Gram Panchayat and a patta was also issued in their favour by the Gram Panchayat. In such circumstances, the Executive Magistrate had dismissed the complain by holding that the claim of the complainant regarding public obstructions on a public way is false.

The facts of the above mentioned case are quite distinguishable from the facts of the present case as in this case, the petitioner has encroached over the public road and erected Bhatti and tin-shade.

In Vinod & Ors. v. State of Rajasthan (supra), the matter was regarding a complaint filed by the S.H.O., Police Station, Sirohi under section 133 Cr.P.C. to the effect that worshipers of a temple were obstructing the flow of the vehicle on the national highway. The Court has found that if any discomfort is caused to the people passing by from the worshipers coming to the temple, it cannot be said that it amounts to causing public nuisance.

As stated earlier in the present case, the obstructions caused by the petitioner on a public road was dangerous to the health and lives of the public at large and, therefore, also, the above mentioned case does not help to the petitioner.

Hence, in such circumstances, there is no force in this criminal misc. petition and the same is hereby dismissed.

Stay petition also stands dismissed.