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Jharkhand High Court · body

2008 DIGILAW 1090 (JHR)

Md. Aftab Alam v. State of Jharkhand

2008-09-08

D.K.SINHA

body2008
Judgment D.K. Sinha, J.-The petitioners have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. for quashment of the order dated 20.6.2007 passed by the Sessions Judge, Dhanbad in Criminal Revision No. 14 of 2007 by which the order dated 11.12.2006 passed by the Sub-Divisional Magistrate, Dhanbad was set aside in a proceeding under Section 133 Cr.P.C. in M.P. Case No. 1226 of 2003 with a direction to decide the proceeding afresh in the light of the evidence on record. 2. The brief fact of the case was that the Opposite Party No. 2 (Allauddin Mansoori @ Mansuri) first party initiated a proceeding under Section 133 Cr.P.C. by filing an application before the S.D.M., Dhanbad for removal of public nuisance alleged to be caused by the petitioners second party which was registered as M.P. Case No. 1226 of 2003. 3. The case of the Opposite Party No. 2 herein/first party of the proceeding was that he had purchased a part of building at Mauza Siulibari. P.S. Chirkunda within the District of Dhanbad vide registered sale deed Nos. 1124 and 1125 dated 24.5.1997 and came in peaceful possession. It was stated that towards west side of the purchased land there was a 4 feet wide alley from North to South and after the said alley the petitioners had purchased a building in which they were running a hotel under the name and style "Aftab Hotel". During reconstruction of the hotel the petitioners raised the plinth of the hotel building, as a result of which the plinth of the Opposite Party No. 2 became comparatively lower to that of the hotel. Because of such uneven levels, the waste materials of the hotel started flowing through the 4' wide alley. It was further alleged that such wastes and sewage used to stay in the alley and percolate in the well situated inside the premises of the Opposite Party No. 2 causing health hazard. The petitioners had constructed septic tank of latrines of the hotel in the said alley which used to carry obnoxious materials. It was further alleged that such wastes and sewage used to stay in the alley and percolate in the well situated inside the premises of the Opposite Party No. 2 causing health hazard. The petitioners had constructed septic tank of latrines of the hotel in the said alley which used to carry obnoxious materials. A report was called for by the Sub-Divisional Magistrate in the said proceeding and the Circle Officer by his letter No. 1180 dated 22.9.2003, after the spot verification, reported that it was not a case of public nuisance attracting the proceeding under Section 133 of the Code of Criminal Procedure and that the controversy was in the nature of civil disputes between the parties. The S.D.M., Dhanbad upon consideration of such report of the Circle Officer dismissed the proceeding in M.P. Case No. 1226 of 2003 on 25.9.2003, against which the Opposite Party No. 2 preferred Criminal Revision No. 278 of 2003 which was allowed by the 1st Additional Sessions Judge, Dhanbad on 1.7.2005 by setting aside the order passed by the Sub-Divisional Magistrate, Dhanbad and remanded the matter by formulating questions, whether the disputed alley forming the subject matter of the proceeding was used by the contesting parties and also by the other people of the locality or not and that whether the nuisance said to be created was a public nuisance or a private nuisance (Annexure-4). 4. Pursuant to such direction the S.D.M., Dhanbad allowed the parties to adduce their evidence and by the order dated 11.12.2006 dropped the proceeding with the finding that the lane in question was a private lane being used by the petitioners and the septic tank which was constructed was also on the land of the petitioners. It was observed therein that the dispute between the parties was of personal nature and that the general public had no concern. 5. Against that order (Annexure-S) the Opposite Party No. 2 Allauddin Mansoori @ Mansuri preferred a Criminal Revision No. 14 of 2007 assailing the order impugned passed by the S.D.M., Dhanbad on 11.12.2006. The learned Sessions Judge. It was observed therein that the dispute between the parties was of personal nature and that the general public had no concern. 5. Against that order (Annexure-S) the Opposite Party No. 2 Allauddin Mansoori @ Mansuri preferred a Criminal Revision No. 14 of 2007 assailing the order impugned passed by the S.D.M., Dhanbad on 11.12.2006. The learned Sessions Judge. Dhanbad after examining the controversies and the facts in the proceeding under Section 133 Cr.P.C. set aside the impugned order on 20.6.2007 passed by the S.D.M., Dhanbad on 11.12.2006 in M.P. Case No. 1226 of 2003 and again remanded back the matter to the S.D.M., Dhanbad with the following observation and direction:- "It further transpires from the report of the Circle Officer, Nirsa that he has specifically mentioned that in mouza 236 the septic tank of the second party is situated in the own land and out flow of the drain is adjacent to the eastern side of the wall of the petitioner first party. So it shows that the dirty water comes out from the house of the second party and it passes through the lane adjacent to the house of the first party. Therefore, even if it may be upon own land but the learned S.D.M. did not give any finding whether there was causing any pollution because of the dirty water and the water of the septic tank used for toilet which is certainly causes a public nuisance. Therefore, the learned court below committed patent error while it virtually decided the right and title of the party. The proceeding u/s 133 Cr.P.C. is altogether different. No person has got any right to flow dirty water in front of the house of another person if the space is used as lane. Therefore, it is necessary to give finding whether the said dirty water or water of septic tank is causing any pollution in the locality or not, is to be looked into. In the facts and circumstances of the case and evidence as discussed above the impugned order passed by the learned S.D.M. is hereby set aside. Therefore, it is necessary to give finding whether the said dirty water or water of septic tank is causing any pollution in the locality or not, is to be looked into. In the facts and circumstances of the case and evidence as discussed above the impugned order passed by the learned S.D.M. is hereby set aside. This revision is allowed and remanded to the court of learned S.D.M., Dhanbad, who after giving opportunity to the parties shall also give finding whether the dirty water which is passing in front of the house of the petitioner is causing any pollution or not and in the light of the evidence adduced by the respective parties lear~ed court below shall decide the proceedmg afresh." 6. Section 133 of the Code' of Criminal Procedure, 1973 speaks:- (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he "thinks fit, considers- (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; (b) that the conduct or any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated. Such Magistrate may take a conditional order requiring the person causing such obstruction or nuisance,. or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order." 7. The expression nuisance has been defined as an inconvenience which materially interferes with the ordinary physical comfort of human existence, but it is not capable of precise definition. The nuisance may be public or private. But Section 133 Cr.P.C. attracts public nuisance only. The proceeding under Section 133 Cr.P.C. is not intended to settle private disputes or a substitute to settle civil disputes. 8. The nuisance may be public or private. But Section 133 Cr.P.C. attracts public nuisance only. The proceeding under Section 133 Cr.P.C. is not intended to settle private disputes or a substitute to settle civil disputes. 8. Similarly, the expression public place connotes an access to the place by right, permission or use of the public. It IS called a public place in respect of which power may be exercised by the Magistrate under Section 133 for removal of obstruction or nuisance. 9. I am conscious that the report of the Circle Officer which was called for by the S.D.M. in the proceeding under Section 133 Cr.P.C. was relied upon which indicated that the controversy between the parties was in respect to flow of sewage from hotel to the low lying area of the lane and there was septic tank also of the petitioners in the said lane causing flow of obnoxious materials through its outlet but it was stated in the report that the lane (alley) belonged to the petitioners i.e. owners of the hotel. I. further find that a proceeding under Section 107 Code of Criminal Procedure was initiated between the parties for persisting disputes. Therefore, in my considered opinion learned Sessions Judge, Dhanbad was not justified in his impugned order by which he had directed to give fresh finding on fresh issue though the dispute was admittedly between two parties and in respect of private nuisance, and in the circumstances a proceeding under Section 133 Cr.P.C. cannot legally sustain. Moreover, I do not find any third person or persons of the locality came forward and joined the proceeding supporting the allegation of health hazard caused by influx of obnoxious sewage passing through the private alley. The fact perhaps was lost sight that in the given situation the proper recourse was to settle the disputes by the civil court of competent jurisdiction, once for all and under the circumstances proceeding under Section 133 Code of Criminal Procedure is not the remedy. 10. In view of the above observation the order impugned passed by the learned Sessions Judge, Dhanbad in Cr. Revision No. 14 of 2007 on 20.6.2007 is set aside and the proceeding initiated under Section 133 Code of Criminal Procedure in M.P. Case No. 1226 of 2003 is dropped.