Shah Pushpaben Pravinchandra Vs State of Gujarat and Another

S.G. Shah, J.@mdashHeard learned Advocate Mr. B.K. Raj, for the applicant and Mr. D.M. Shah, learned Advocate for respondent No. 2, whereas, learned A.P.P. Mr. N.J. Shah represents respondent No. 1-State. Petitioner herein is the original complainant. She has filed a complaint on 4-9-2004 before the Sub-Divisional Magistrate (hereinafter referred to "as S.D.M.") of Dabhoi alleging that activities by respondent No. 2 at first floor of House No. 4/13/26-1 is creating public nuisance by running a small Papad ("an eatable item can be termed as thin crisp cake made of flour mixed with Urad and spices, normally served with meal") Manufacturing unit. It is further alleged that respondent No. 2 is creating nuisance by grinding wheat and other grains during the day and she has engaged 20-25 persons, who regularly works at the given place in different shifts, and thereby, respondent No. 2 is doing manufacturing and commercial activities in a residential house and because of running the grinding machine throughout the day, respondent No. 2 is creating public nuisance in the form of noise as well as in the form of different activities by 20-25 labourers in a residential area. It is also alleged that because of such manufacturing unit, it creates typical smell and other hazardous effects like smoke etc. It is further alleged that because of the running of the grinding machine for a long time within residential area will result into cleft in walls and ceiling etc. Thereby, security and safety of the building in question has been deteriorated. It is also contended that such nuisance would result into High Blood Pressure, Diabetes and several other sickness and disease to all occupants of adjoining and nearby properties. Therefore, petitioner has requested the respondent No. 1 to initiate proceedings under Sec. 133 of the Cr.P.C. and to pass appropriate order to stop such nuisance.

2. On perusal of record, it becomes clear that S.D.M., Dabhoi had inquired into the matter and recorded statements of more than 10 persons including the petitioner as complainant and came to the conclusion that the activities by respondent No. 2 is certainly creating nuisance, and therefore, by his reasoned order dated 28-6-2007, directed respondent No. 2 to. remove and not to install the automatic machine for manufacturing of Papad etc. at the given place. Such order and judgment under Sec. 133 of the Cr.P.C. in Case No. 2 of 2004 was challenged by the respondent No. 2 before the Sessions Court, Vadodara under Sec. 397 of the Cr.P.C. The learned Sessions Judge has; vide his order and judgment dated 4-7-2008, in Criminal Revision Application No. 219 of 2007; came to the conclusion that the order of the S.D.M., Dabhoi in Case No. 2 of 2004 is beyond the scope of Sec. 133 of the Cr.P.C, and therefore, quashed and set aside said order. Perusal of such judgment makes it clear that for coming to such conclusion, the learned Sessions Judge has mainly relied upon the judgment of this Court, in the case of Branch Manager, Vijaya Bank Vs. State of Gujarat and Others, . The learned Sessions Judge has also held that complaint filed by the present petitioner is for individual discomfort or individual damage to her, which cannot be said to be a public nuisance.

3. However, after considering the rival submissions and perusing the material available on record, I am unable to agree with the findings, determination and conclusion by the learned Sessions Judge for several reasons.

4. It seems that the learned Sessions Judge has failed to consider the fact that volume of evidence is not material but contents, nature and authenticity of evidence is material for coming to a particular conclusion. Inasmuch as though the learned Sessions Judge has referred the statement and affidavit of some persons, wherein, there is clear statement that the machine in dispute is creating noise and heavy vibrations, which effects the health of the persons residing in the area and that due to running of the machine, they cannot sleep and their children cannot study, even after such observation, the learned Sessions Judge has discarded the same on the ground that there is no complaint from the management of the nearby Girls School authority, and decided that there is no nuisance. Whereas, on the other hand, the learned Sessions Judge determined that when there is no specific pleading of damage or discomfort to any person, question does not arise to record statement of neighbouring persons, and thereby, to accept the say of neighboring persons. On such presumption, the learned Sessions Judge has considered the grievance of the petitioner as apprehension without any base and substance and imaginary. Thus, practically, though the learned Sessions Judge has accepted that machine was installed at the given place and instead of determining the issue whether the installation of machine and activities by respondent No. 2 is creating nuisance as alleged by the petitioner, the learned Sessions Judge has straightaway entered into the probability and locus standi of the petitioner as well as existence of cause of action and evaluated the evidence for a determination that order of the S.D.M., Dabhoi is illegal, perverse and bad in law. Such conclusion is in Paragraph 13 of the impugned judgment.

5. Whereas the record shows that practically the S.D.M., Dabhoi has taken care of the issue by considering at least statements and/or affidavit of ten persons and detailed submissions by the petitioner, both in the form of her complaint as well as in her statement before him. The S.D.M. has also relied upon the panchnama of the place of incident drawn by two independent panch witnesses. The order of the S.D.M., Dabhoi also confirms that he has passed an interim order on 14-10-2004 restricting the respondent No. 1 to run an automatic machine at first floor of House No. 4/13/26-1 and to avoid from entering into or doing any activity, which disturbs the health and peace of neighbours. The S.D.M., thereafter, initiated a full-fledged inquiry vide registered Case No. 2 of 2004 against respondent No. 2 and recorded statement of the several persons and permitted respondent No. 2 to even cross-examine the complainant.

6. After considering the rival submissions and rival allegations and Inquiry Report by Circle Officer, Dabhoi, the S.D.M. has, by order dated 28-6-2007, while confirming his interim order dated 14-10-2004, allowed the application/complaint of the present petitioner and directed respondent No. 2 not to install an automatic machine for Papad manufacturing at the first floor of the residential premises of the petitioner and if such machine is installed at such place, then to remove the same. The S.D.M. has also conveyed to respondent No. 2 that he may file an appeal within 30 days before the Competent Court, if he is aggrieved by such an order. Such order is in detail, wherein, the S.D.M. has considered all the relevant aspects and evidence before him after giving proper and reasonable opportunity to respondent No. 2 before passing such an order.

7. Therefore, when there is neither any irregularity nor perverseness in the proceedings before the S.D.M., Dabhoi, the determination by the learned Sessions Judge that such order is illegal, perverse and bad in law, cannot sustain.

8. So far as legality of the order is concerned, as discussed hereinabove, the relevant issue which requires consideration is now limited to the question that whether such nuisance can be controlled by an order under Sec. 133 of the Cr.P.C. by S.D.M. or not? Because so far as factual aspect is concerned, the S.D.M. has dealt them in detail and if there is automatic machine with heavy noise, then, it will certainly create a nuisance. The defence of respondent No. 1 that nobody except petitioner has came forward with such application is not tenable for the simple reason that in any illegal act, there may be only one complaint and rest of the victims or effected persons may be witnesses only. In short, every victim or effected person do not have to file a separate complaint for the same incident by the same person. It is sufficient, if neighbourers support the complaint filed by the petitioner, which is done in the present case. Though, the learned Sessions Judge has dealt with several cases that may be cited before it by respondent No. 2, being applicant before the Sessions Court, the reference of the case of Branch Manager, Vijaya Bank Vs. State of Gujarat and Others, itself is sufficient, wherein, the High Court has decided that power of Executive Magistrate to pass appropriate order in public nuisance is only after passing a conditional order. In a reported case, the complaint was regarding installation of two air-conditioners in the Bank. The High Court has held that utilisation of two air-conditioners for the Bank premises would not result or amount to public nuisance, and therefore. Magistrate could not straightaway pass final order without holding inquiry. Whereas, in the present case, Magistrate has initially passed a conditional order and then hold detailed inquiry before coming to the conclusion that activity by respondent No. 2 is creating a public nuisance, and thereby, such judgment would not help the respondent No. 1.

9. Similar is a position in the reported case of Shantilal Nagardas Shah v. Vora Rahimbhai Jusabhai, reported in 1984 GLH 1090, wherein, the High Court has held that if there is inconvenience to certain person, then Sec. 133 of the Cr.P.C. would not apply since it is not a public nuisance. There cannot be any dispute to such legal position but as discussed, factual details are different, inasmuch as so far as present case is concerned, there is sufficient evidence before the Executive Magistrate regarding creation of nuisance by respondent No. 2, and thereby, this judgment would also not help the respondent.

10. The respondent has also relied upon the Full Bench judgment of the Apex Court in the case of Suhelkhan Khudyarkhan and Another Vs. State of Maharashtra and Others, , wherein, three Judges of the Apex Court had, while considering the provision of Sec. 133 of the Cr.P.C. and the term public nuisance, which reconfirm the decision in Vasant Manga Nikumba v. Baburao Bhikanna Naidu , observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. Even the expression of the word community in clause (b) of Sec. 133(1) is also highlighted. However, respondent No. 2 has failed to consider that even after some discussion and observation, the Full Bench of the Apex Court has confirmed the order of the S.D.M., by which, even the books store was ordered to be removed from a tenanted premises, where, he had erected a tin shed and running religious bookshop known as R.K. Kitab Ghar.

11. Thus, when the Full Bench of Apex Court has not allowed to run a religious bookshop in a residential premises, how a small industry with heavy duty grinding machine can be permitted to run? For coming to such conclusion, the Full Bench of Apex Court has practically relied upon the case of Kachrulal Bhagirath Agrawal and Others Vs. State of Maharashtra and Others, . It would be necessary to recollect here the observation of the Apex Court in Dhampur Sugar Mills Ltd. Vs. State of U.P. and Others, , wherein, with reference to the case between Municipal Council, Ratlam Vs. Vardichan and Others, , the Supreme Court has observed as under:

41. In Municipal Council, Ratlam Vs. Vardichan and Others, :

Some residents of Ratlam Municipality moved the Sub-Divisional Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973 for abatement of nuisance by directing the Municipality to construct drainpipes with flow of water to wash the filth and stop the stench. The Magistrate found the facts proved and issued necessary directions. The Sessions Court, in appeal, reversed the order. The High Court, in revision, restored the judgment of the Magistrate and the matter was carried to the Supreme Court.

42. Krishna Iyer, J. pithily summarized the principle thus:

The key question we have to answer is whether by affirmative action a Court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis. At issue is the coming of age of that branch of public law bearing on community actions and the Court''s power to force public bodies under public duties to implement specific plans in response to public grievances.

43. Holding the provision obligatory, the Court observed:

Judicial discretion when facts for its exercise are present, has a mandatory import. Therefore, when the Sub-Divisional Magistrate, Ratlam, has, before him, information and evidence, which disclose the existence of a public nuisance, and on the materials placed, he considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public, he shall act....... This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding.

(Emphasis supplied)

44. We do not wish to refer to other cases on the point. We are, however, in agreement with the observations of Earl Cairns, L.J. in Julius referred to above wherein His Lordship stated;

(W)here a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised.

(Emphasis supplied)

12. It is also necessary to recollect here the decision by the Apex Court rendered in In Re: Noise Pollution - Implementation of the Laws for restricting use of loudspeakers and high volume producing sound systems, , wherein, the Supreme Court has taken into consideration the relevant aspect of the noise pollution. After referring several statutes, reports and definitions of the word "noise" and "pollution" from different sources, the Apex Court has observed as under for considering that noise is also a pollution and it requires to be controlled, in the matter before the Apex Court, which raises certain issues of far-reaching implications in day-to-day life of the people in India relatable to noise pollution vis-a-vis right to life enshrined in Art. 21 of the Constitution as interpreted in its wide sweep by the constitutional Courts of the country. Since, several Paragraphs of such reported judgment are relevant for the present case, sum and substance of such Paragraphs are listed herein avoiding reproduction of all such Paragraphs.

Noise is more than just a nuisance. It constitutes a real and present danger to peoples health. Day and night, at home, at work, and at play, noise can produce serious physical and psychological stress. No one is immune to this stress. Though, we seem to adjust by ignoring it, the ear, in fact, never closes and the body still responds-sometimes with extreme tension, as to a strange sound in the night. (Please refer Para Nos. 7, 23 and 25 of the said judgment).

Noise is a type of atmospheric pollution. (Please refer Para No. 22 of the said judgment).

Noise would result into hearing loss, difficulty in falling asleep, effect on performance and physiological effects. (Please refer Para Nos. 25, 28, 30 and 31 of the said judgment).

In Para Nos. 32 to 39, the Apex Court has discussed and listed the effect of noise pollution in further details.

13. In view of the facts, circumstances and discussions, it is clear that judgments referred by respondent No. 2 and the learned Sessions Judge are particularly dealing with the facts and circumstances of particular case only and not deciding the law. More particularly, after the judgment of Full Bench of Apex Court in the case of Suhelkhan Khudyarkhan v. State of Maharashtra, 1984 GLH 1090 (SC), as well as case regarding noise pollution reported in In Re: Noise Pollution - Implementation of the Laws for restricting use of loudspeakers and high volume producing sound systems, , which is referred hereinabove, factually also the facts remain that respondent No. 2 is restrained from utilizing heavy duty machines at the given place since 14-10-2004. That order was continued till impugned judgment delivered by the learned Sessions Judge on 4-7-2008 and the order of the learned Sessions Judge was stayed by this Court on 26-9-2008. Therefore, practically respondent No. 1 is restricted from utilizing such heavy duty machines at a given place since last almost 10 years. The fact remains as admitted by respondent No. 2 that now they have occupied suitable place at some distances but they are keen to shift their activities as to save some amount of rent. For all above reasons, the judgment and order of the Sessions Court cannot sustain, which is hereby quashed and set aside, and thereby, judgment and order dated 28-6-2007 passed by the S.D.M., Dabhoi in Case No. 2 of 2004, under Sec. 133 of the Cr.P.C. restraining the respondent No. 2 from installation and utilization of automatic Papad machine etc. at first floor of House No. 4/13/26-1 is hereby confirmed.