Wali Uddin and Another vs State of U.P. and Another

B.L. Yadav, J.—By present criminal revision, u/s 397/401 of the Code of Criminal Procedure, 1973 (for short the Code), order dated 18-7-1986 passed by Additional Sessions Judge/Special Judge Meerut passed in Criminal Revision No. 48 of 1986 (Mohd. Islam v. State of U.P. and Ors.) allowing the revision and setting aside the conditional order dt. 17th April, 1984 passed by City Magistrate Meerut in a proceeding u/s 133/137 of the Code initiated against Mohd. Islam opposite party No. 2, is sought to be quashed.

The facts of the case are few and simple and they are these. The applicants moved an application before the City Magistrate Meerut purporting to be u/s 133/137 of the Code for initiating proceedings against the opposite party No. 2 as the latter runs a factory in the vicinity for manufacturing: ''Wheel panas'' and during process of manufacturing, public nuisance, was created due to which the residents of the locality could not sleep well and on account of unusual noise, some cracks had been created in neighbouring buildings, hence it was prayed that opposite party No. 2 may be restrained from creating public nuisance or from running the said factory. The Kotwali Police submitted a challani report against him u/s 133 of the Code for taking necessary action. The City Magistrate passed a conditional order u/s 133(1) of the Code on 14-4-84 asking the opposite party No. 2 to show cause as to why not the said conditional order may be made absolute.

The opposite party No. 2 appeared and contested the notice alleging that the same was malafide and that no discomfort was created by the said factory which is being run for the last more than 20 years. In substance, the allegations made in the notice and the application were denied and it was urged that even in 1957 similar complaint was filed but the same was dismissed hence that order would operate as res-judicata and in any case proceedings are liable to be quashed and the conditional order deserves to be discharged. In support of the notice to initiate proceedings u/s 133 of the Code PW 1 Waliuddin, PW 2 Anwar Ahmad, PW 3 Mohd Ishaque, PW 4 Hashmat Khan, PW 5 Sabir Ali were examined by the applicants and OPW 1 Islam, OPW 2 Saleem and OPW 3 Babu Ibrahim were examined by opposite party No. 2 and other evidence was also led.

City Magistrate Meerut passed conditional order dated 12-4-84 directing Mohd. Islam, the opposite party No. 2 to close the factory manufacturing ''wheel panas'', or to show cause on 25-4-84 at 10 A.M. indicating why not the conditional order dated 17-4-1984 may be confirmed. After taking evidence, as stated above the City Magistrate further directed the opposite party No. 2 that in case he wants to run the factory for manufacturing something other than ''wheel panas'', then he may move an application before the Court and obtain appropriate permission. Against that order, opposite party No. 2 preferred a revision which was allowed on 18-7-1986 by the Additional Sessions Judge/Special Judge Meerut and order dated 7th February, 1986 was set aside and conditional order dated 17-4-1984 was discharged. Against that revisional order present revision has been filed.

Mr. Tapan Ghosh, learned Counsel for the applicant urged that on the basis of evidence on record particularly the statements of PW 1 Waliuddin, PW 2 Anwar Ahmad, PW 3 Mohd. Ishaque and PW 4 Hasmat Khan, it was proved that in the process of manufacturing ''wheel-pana'' in the factory run by the opposite party No. 2 public-nuisance was created by its unusual sound and even the health of the residents of the locality was badly affected and the walls of so many adjoining buildings have been cracked and during process of manufacturing, it appears that the walls would fall down and as the opposite party No. 2 has intensified the mode of manufacturing since dismissal of earlier application hence fresh cause of action was created, therefore dismissal of earlier application in 1957, shall have no effect and there was no justification to set aside the order dated 7-2-1986 and to discharge the order dated 17th April, 1984. It was further urged by learned Counsel for the applicant that revision before Sessions Judge was not maintainable as order dated 7-2-1986 confirming the conditional order was an interlocutory order. Reliance was placed on Smt. Premlata v. Ram Lubhaya 1978 ACR 343 .

Mr. V. Sahay and Mr. B. Dayal learned Counsel for the opposite party No. 2 urged that when the opposite party No. 2 appeared before the Court in pursuance of the conditional order passed u/s 133(1) of the Code and he has shown sufficient cause that the conditional order dated 12-4-86 should not be made absolute as no public nuisance was created by manufacturing ''wheel panas'', nor any obstruction was created by the same rather at any rate, it was just a private-nuisance therefore no application u/s 133 of the Code could lie, and in any case as the existence of the public nuisance was denied, and the sufficient cause was shown, as to why the conditional order may not be made absolute and reliable evidence was led in support of the denial by examining OP Ws 1, 2 and 3 hence in view of Section 137 (1) and (2) of the Code, proceedings u/s 133 must have been stayed by the Magistrate until existence of such right is decided by the competent Court. Reliance was; placed on Janeshwari Devi Dutt v. Ved Singh 1979 ACR 487 : 1980 AWC 12, Mahabir Singh v. State 1980 ACR 264 : 1980 AWC 344 and Rekhai Singh Vs. The State, .

Sri. Jagdish Tewari, learned Counsel for the State supported the impugned order.

Having heard learned Counsel for the parties points for determination are that as to whether the order making conditional order absolutely was interlocutory or final order and as a consequence thereof whether the revision before the Sessions Judge was maintainable and the next point is whether in the instant case nuisance complained of was a public nuisance or a private nuisance and what can be said to constitute a nuisance. The other point is whether after leading ''reliable'', evidence in support of the denial the procedure u/s 137 of the Code ought to have been followed and the proceedings u/s 133 must be stayed till the controversy was adjudicated upon by the competent Court.

As regards first point whether the revision was maintainable before the Sessions Judge and whether the order making conditional order absolute was an interlocutory order. The principles applicable in deciding as to whether particular order happens to be interlocutory or final has been pointed out and explained in a number of decisions including Jai Prakash Singh v. Radhey Shyam Singh 1987 AWC 851 decided by me. In nut shell the principle is that in case after passing an order in a particular proceeding, something more remains to be done, it is an interlocutory order and in case by passing an order that proceeding itself exhausts and nothing more remains to be done, it is a final order. Further, the rejection of plea or the order passed in respect of a particular point or controversy if concludes particular proceeding, same will be a final order and not interlocutory order. It would not be out of place to refer to the relevant discussion from Halsbury''s Law of England, Fourth Edition, Volume 26, para 505 which is as follows:

Final judgments and orders. In general a judgment or order which determines the principal matter in question is termed ''final''. A final judgment has been defined as "a judgment obtained in an action by which a previously existing liability of the Defendant to the Plaintiff is ascertained or established" and as "a judgment obtained in an action by which the question whether there was pre-existing right of the Plaintiff against the Defendant is finally determined in favour either of the Plaintiff or of the Defendant". A final order is nonetheless final by reason that it is subject to appeal, and a judgment may be final even though it directs inquiries, or deals with costs only, or is made on an interlocutory application, or reserves liberty to apply". See Shubrook v. Tufnell (1882) 9 QBD 621; Salter Rex Co. v. Ghosh (1971) 2 QB 597 .

In Salaman v. Warner (1891) 1 QB 734 it was held as follows:

If their decision whichever way it is given will, if finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decisions, if given in one way, will finally dispose of the matter in dispute, but if given is the other, will allow the action to go on, then I think it is not filial but interlocutory".

In Mohan Lal Magan Lal Thacker Vs. State of Gujarat, , it was held that the meaning of the words ''final and interlocutory'' has therefore, to be considered separately in relation to the principal purpose for which it was required.

Same principle has been explained in Madhu Limaye v. State of Maharashtra 1978 AWC 96. In the present case as after the conditional order was passed, opposite party No. 2 appeared and has shown cause objecting the: notice and after considering that conditional order was made absolute and the Magistrate refused to stay proceedings u/s 137(2) and that order was a final order and not interlocutory order hence the revision against that order was certainly maintainable before the Sessions Judge. Smt. Prem Lata v. Ram Lubhaya (supra) relied upon by the applicant was on different facts about order to be passed u/s 146(1) in case of emergency was certainly an interlocutory order, but that anology would not apply to an order u/s 133(1) R/W.S. 137(2) of the Code, hence the case of Smt. Prem Lata v. Ram Lubhaya (supra) was besides the point. In these cases of Janeshwar Devi Datta v. Ved "Singh and Mahabir Singh v. State (supra) relied upon by the opposite party, while interpreting the scope of the order under Sections 133 and 137(2), refusing to stay proceedings, such order was held to be final order and not interlocutory. These are relevant cases based on similar facts.

Adverting to the second point, whether in the instant case the ''Nuisance'' complained of was a ''public nuisance'' or a ''private nuisance'' and what can be said to constitute a ''Nuisance''. According to Pollock, "Nuisance is the wrong done to a man by unlawfully disturbing him (a) in the enjoyment of his property, or, in some cases, (b) in the exercise of a common right".

Winfield and Jolowicz on Tort (Twelfth Edition, 1984) define Public Nuisance (on pages 378 and 379) as follows:

A public or common nuisance is one which materially affects the reasonable comfort and convenience of life of a class of Her Majesty''s subjects who come within the sphere or neighbourhood of its operation. But this definition is vague and it has been rightly said that nuisance covers a multitude of sins, great and small". Public nuisance of common law include such diverse activities as carrying on an offensive trade. Keeping a disorderly house, selling food unfit for human consumption, obstructing public highways, throwing fire works about in the stress and holding an ill advised pop-festival". (See South Port Corporation v. Esso Petroleum Co. Ltd. 1954 WQB 182 , per Denning L.J. Attorney General for Ontario v. Orange Production Ltd. (1971) 21 DLR 257.

Sir Arthwr Underhill on his Law of Torts (Sixteenth Edition) page 118, describes public-nuisance as under:

"A public nuisance is some unlawful act, or omission to discharge some legal duty, which act or omission endangers the lives, safety, health or comfort of the public or by which the public are obstructed in the exercise of some common right.

No action can be brought by a private parson for a public nuisance unless he has suffered substantial particular damage beyond that suffered by the public generally".

A private Nuisance has been described on page 12, Chapter V as under:

"A private Nuisance is some unauthorised user of a man''s own property causing damage to the property of another or some unauthorised interference with another''s enjoyment of his property, causing damage.

Any private nuisance whereby sensible injury is quashed to the property of another, or whereby the ordinary physical comfort of human existence in such property is materially interfered with, is actionable."

Harry Street, in his Law of Tort (Seventh Edition) 1983 observes on page 229 as follows:

The essence of the tort of nuisance is the interference with enjoyment of land....The generic conception of nuisance can readily be illustrated. It covers interference with use and enjoyment of land by water, fire smoke smell, fumes, gas, noise, heat, electricity, disease or any other like thing which may cause such an inconvenience. Nevertheless, the term ''nuisance'' is used in different senses by the Judges and this has caused confusion both in the development and in the exposition of this branch of the law of torts ".

Salmond on Law of Torts (Sixteenth Edition) page 52 states as follows:

Nuisance is commonly a continuing wrong that is to say, it consists in the establishment or maintenance of some state of affairs which continuously or repeatedly causes the escape of noxious things into the Plaintiff''s land (e.g. a stream of foul water or the constant noise or small factory). An escape of something on a single occasion would not ordinarily be termed a nuisance. Nuisances are of two kinds, public and private. A private nuisance is a Civil Wrong a public or common nuisance is a criminal offence ".

Apart from aforesaid definitions as given by eminent authors on the Law of Torts, it is also convenient in the present case to look into the definition of Public-Nuisance as given u/s 268 of IPC as follows:

A person is guilty of a public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right ".

Private nuisance affects only private individuals in contradiction to the public at large. In other words it is an act or omission intended to hurt or create annoyance, injury or discomfort to a private individual or to the property possessed by a private individual. In brief in some cases the same act may constitute a public nuisance as well as a private nuisance. Very often it is evident, that the private nuisance and public nuisance may in few instances, be overlapping. It is the quantum of annoyance or discomfort or injury which distinguishes private nuisance from public nuisance.

It is better to refer the remedies available against the private nuisance and public nuisance. Sections 133 to 144 of the Code deal with public nuisance. It is inconvincable that the provisions of Section 133 to 144 can be made applicable to private nuisance. The remedies available are both in civil and criminal nature. Against private nuisance civil remedy is available u/s 91 of the CPC 1908 by filing a civil suit for declaration and injunction or for such other relief as may be appropriate in the circumstances of the case and in that suit Plaintiff need not prove for he has sustained any special damage. The other remedy available is under Criminal Law by prosecution of the person responsible under different Sections provided under Chapter XV (Fifteen) of the Indian Penal Code. The next remedy is in the form of summary proceedings in urgent matters pertaining to the public nuisance etc. and the same has been provided under Sections 133 to 144 of the Code. One more remedy is also available against public nuisance that is as provided under Special or Local Laws, including Section 405 of U.P. Nagar Mahapalika Adhiniyam 1959, Section 126 of the Cantonments Act, 1952 etc. In the instant case as the nuisance complained of was affecting public at large inasmuch as if while manufacturing wheel panas some unusual noise or disturbance was created it certainly affected the public at large and as alleged if cracks were formed in the buildings of the locality that affected the public in general and not only any private individual. Therefore, in the present case nuisance was certainly of public nuisance and the remedy available in the summary proceedings was by way of an application u/s 133 of the Code. It may be clarified that the remedy against public nuisance u/s 133 was essentially a civil remedy but as the matter pertains to urgent situation power to pass appropriate order was given to the Magistrate concerned, otherwise if for similar purposes some urgent remedy was provided in summary proceedings in a civil Court that would have prolonged the proceeding.

Adverting to the last point as to whether after the opposite party No. 2 appeared and denied the existence of the public right or in other words denied that there was any public nuisance as alleged by the applicant, was it necessary for the Magistrate concerned to have stayed the proceeding in view of the provisions of Section 133 read with Section 137 of the Code and direct the parties to get their rights decided by a competent civil Court or instead of doing so the Magistrate must have considered the evidence on merits. In such cases it is better to apply elementary principle of interpretation that the interpretation must be textual and contextual both. The procedure has been provided u/s 137 when the opposite party appears and denies the existence of the right. As the principle of interpretation is that entire statute has to be read together, the other principle co-related to the same is that the different parts of entire Section must be read together. In the present case when the opposite party No. 2 appears and after he is served with an order u/s 133 of the Code the Magistrate shall ask him whether he is deying existence of the public right. In case such denial was made, as was done in the present case, in that event it became obligatory on the part of the Magistrate to hold an enquiry into the matter u/s 137 and to ascertain as to whether opposite party has produced the reliable evidence in support of the denial, in case he is of the view that there is just some ''reliable evidence'' and not such evidence on the basis of which rights, or title of the parties could be decided rather it must be an evidence on which prima facie reliance could be placed. Although after thorough scrutiny the evidence might not be such on which some positive finding could be recorded or on the basis of which rights of either party could be determined finally. In case there is some just prima facie reliable evidence and which is certainly not conclusive evidence, in that event, the jurisdiction of the Magistrate is ousted and it has been provided u/s 137(2) of the Code that be shall stay the proceedings, and direct the parties to get their rights adjudicated upon by a competent civil Court and he has been directed by the Legislature not to decide as to whether public right exists or not. The use of words ''that he shall stay the proceedings'' indicates that the Legislature was conscious to make the provisions of Section 137(2) to be mandatory and imperative and not just directory.

It is also to be noticed that u/s 137(1) the Legislature has used the word "that after the denial of such right by opposite party the Magistrate shall inquire into the matter" and not that the Magistrate shall adjudicate upon or decide the matter or controversy between the parties. The word ''inquire'', means eager, to acquire information. The word ''inquire'', according to Shorter Oxford English Dictionary means to search into, to seek knowledge, to make inquisition, to make investigation, to seek information by questioning, to seek or to try to find out. The word reliable evidence having been used and the Magistrate having been directed to inquire into the matter and not to decide or adjudicate upon, it is clear that the person denying the public right has to put forward a just and bonafide claim. In case the Magistrate finds that there is some reliable evidence and certainly not a conclusive evidence in support of the denial of any public right to get the matter decided by a competent Court. I am however, of the view that the Section does not make it clear as to who is the person as to whether first party or the second party, who has to approach the Civil Court. One thing more may be clarified that in case the Magistrate finds that there is no such reliable evidence in that event he shall proceed in view of the provisions of Section 138 of the Code. In the instant case what has been done is entirely different. Even though the Magistrate confirmed the conditional order but the revision has been disposed of by the learned Additional Sessions Judge in total disregard of the provisions of Section 133 read with Section 137 of the Code. The learned Sessions Judge was exercising the same jurisdiction as was to be exercised by the learned Magistrate. He must have also proceeded to decide the case just with a view to make an enquiry as to whether there was some reliable evidence led by the opposite party No. 2 who denied the existence of such right and in case he found that there was reliable evidence his jurisdiction ceases and it was for the civil Court to decide the same.

A bare perusal of the impugned order dated 18-7-1986 passed by Additional Sessions Judge would indicate that he has met the evidence as if he was to decide the rights and title of the parties on merits and not just to ascertain by enquiring into the matter as to whether there was some material and reliable evidence in support of the denial or not. On page 6 of the order of Additional Sessions Judge there is an observation to the effect that, "The P Ws have nothing to say against the noise created by those 12 other units. Naturally, they are used and accustomed to the discomfort caused by the noise made by these units. The unit of the revisionist could also be creating some noise. It is difficult to believe that the discomfort was caused to the heart patient and the students only by the unit run by the revisionist while the other 12 units put collectively were not causing any unbearable discomfort. By leaving this important fact out of consideration, the learned Magistrate has arrived at a finding which appears to be perverse". In the next paragraph Additional Sessions Judge has proceeded with the observatian, "A perusal of the judgment of the learned Magistrate would show that he has not made any serious effort to scrutinise the evidence on record."

In this view of the matter it is crystal clear that the Additional Sessions Judge had decided the revision in complete disregard of the mandatory provisions of Section 137 of the Code. He must have ascertained whether the learned Magistrate has made an enquiry just to ascertain whether there was any reliable evidence in support of the denial of the public right. The learned Additional Sessions Judge has proceeded to scrutinise the evidence on the record particularly the statements of the PWs. He did not proceed to ascertain if there was some reliable evidence in support of the denial. In this view of the matter the order passed by learned Sessions Judge is vitiated and cannot be sustained. In the case Rekhai Singh v. State (Supra) relied upon by the learned Counsel for the opposite party No. 2, the order of the Magistrate refusing to stay proceedings u/s 139A of old Code (Section 137(2) of the present Code) under similar facts, the order of Magistrate was set aside. There appears to be reliable evidence in support of the denial of public right hence it is eminently just that the proceedings u/s 133 of the Code must be ordered to remain stayed until the matter of existence of such public right has been decided by a competent Civil Court. It is however, made clear that the party aggrieved may file a civil suit in the Civil Court for appropriate relief.

In the result, the revision succeeds and is allowed in part. The impugned order dated 18-7-1986 passed by Additional Sessions Judge and that of the Magistrate dated 7-2-1986 are modified to the extent that the proceedings u/s 133 of the Code are directed to be stayed until the matter of existence of such public right has been decided by a competent civil Court.