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Madhya Pradesh High Court · body

2012 DIGILAW 191 (MP)

Virendra Kumar Maheshwari v. State of M. P.

2012-02-10

J.K.MAHESHWARI

body2012
JUDGMENT : Beingaggrieved by the order Annexure P/1 dated 24-4-2010 and Annexure P/6 dated 26-2-2010 passed by the Collector, District Gwalior directing closure of the Nursing Home, the petitionerhas preferred this petition invoking extraordinary jurisdiction of this Courtunder Article 226 of the Constitution of India. 2.It is the contention of the petitioner that on 26-2-2010 without affording due opportunity, preliminaryorder under section 133 of Criminal Procedure Code was passed wherein fourirregularities were shown. Those were of obstruction of the road due to having Gumties , two wheeler vehicles and four wheeler vehiclescausing nuisance to the inhabitants of the community. It was further said thatthe attendant of patients used to create nuisance by parking their vehicles infront of the gates and on denial create dispute with the residents. It was alsosaid that the waste thrown in open place is spread by the animals in front ofthe house of various persons on account of not having dustbin available to keepsuch waste and proper arrangement for biomedical waste has not been done whichis creating nuisance and having adverse impact on the health of the residentsof the locality, however, directed to close the nursing home and to file reply. 3.In the preliminary order, the reference of the report of the ExecutiveMagistrate dated 23-2-2010 was made but the copy thereof was not supplied tothe petitioner, however, reserving right to file a detailed reply on theallegations made in report, point-wise reply was submitted by him. It is statedin the reply that on 15 feet wide public road, the Municipal Corporation, Gwalior vide order dated 5-2-2010 directed to grant parkingfacility to ex-serviceman, namely, Ranveer Singh Chauhan , for two wheeler and four wheeler vehicles who isoperating the said stand. The fact with respect to installation of Gumties creating public nuisance on the road, it is statedthat the Gumties so found are none of the familymembers of the petitioner. " Pankaj JuiceCentre" and "Deepak Tea Stall" are having no connection with thehospital of petitioner and the Municipal Corporation by issuing receipt istaking rent from those Gumties . It has not beenexplained in the notice that which type of public nuisance is caused to theinhabitants from these Gumties . In addition to thesame, it is specifically said that the petitioner is not keeping his own fourwheeler vehicles on the road. However, the public nuisance so alleged is not bythe petitioner. It has not beenexplained in the notice that which type of public nuisance is caused to theinhabitants from these Gumties . In addition to thesame, it is specifically said that the petitioner is not keeping his own fourwheeler vehicles on the road. However, the public nuisance so alleged is not bythe petitioner. It was further denied that the attendants were advised by thepetitioner to park their vehicles in front of the houses of the neighbours to create nuisance, however, the said fact isincorrect. It is specifically averred that the petitioner's nursing home is oneof the high-standard nursing home in Gwalior city having all the arrangements for the betterment of the general patientswith cleanliness. In the operation theatre, in general and in special wards andalso in ICU, proper dustbins are available, however, issue of nuisance relatesto safety so projected in the show-cause notice is incorrect. It is furthersaid that the Pollution Control Board has issued the certificate which is validfrom 1-8-2008 to 31-7-2010 showing no pollution. It isalso said that for the biomedical waste "Davis Surgico "has been given contact for removal of those wastes making payment as per theinstructions of the G.R. Medical College Society, Gwalior , therefore, all the allegations so alleged are denied.Along with the said reply, affidavits of Shivkumar Dubey , Sunil Sikarwar , Shivcharan Soni , Murari Kushwah , Poonam Shivhare , Dr. K. M. Rai , Dharmveer Mehta, Rajesh Pippal , Pradeep Shivhare , Rocky Savita , who arethe residents of Lakshmibai Colony where the nursinghome is situated, have been attached denying the public nuisance. It is furthersaid that at present 90 patients are admitted who are having serious ailments.In such circumstances, the order of closure of the nursing home may be recalledotherwise the persons who are already admitted shall suffer irreparable loss oftheir life. 4.After perusal of the reply, the comments of the Executive Magistrate have beensought for and thereafter final order Annexure P-1 dated 24-4-2010 was passed. In the said order, theauthority competent has referred four issues of the show-cause notice and alsothe other issues. The complainant has not been afforded opportunity to lead theevidence or prosecution witnesses have not been made available forcross-examination. In the said order, theauthority competent has referred four issues of the show-cause notice and alsothe other issues. The complainant has not been afforded opportunity to lead theevidence or prosecution witnesses have not been made available forcross-examination. The accused has also not afforded an opportunity to leadevidence as contemplated under the law and finally it is directed that onaccount of keeping two wheeler and four wheeler vehicles on the public road andnot making proper arrangement of biomedical waste which is hazardous to healthcausing nuisance to the inhabitants, directed for closure of the nursing homewithin 48 hours by passing order Annexure P-l. 5.Petitioner in the petition averred that the said nursing home is situated at85-Laxmibai Colony, Gwalior ,having its registration under the provisions of M. P. Upacharya Grah Tatha Rajo Upachar Sthapana Sambandhi ( Registrikaran Tatha Anugyapan ) Adhiniyam , 1973, issued by the Chief Medical and HealthOfficer, Gwalior ,Annexure P-2. Prior to issuance of such certificate, the authority competent isrequired to verify whether the necessary facilities are available or not. Thesaid registration has been extended from time to time. It is further said thatbefore starting nursing home, ventilator services, and other inclinationcharges are required to be deposited in the G.R. Medical College Society, Gwalior .The receipts thereof have been collectively enclosed as Annexure P-3.Petitioner has also deposited the biomedical waste charges with G.R. Medical College Society and also filed the daily chart of the collection of the waste of thenursing home as Annexure P-4. On applying no objection certificate from M. P.Pollution Control Board, it was granted as per Annexure P-5. It is also saidthat the nursing home of the petitioner is serving to the society in the fieldof public health since last more than 20 years. Being prestigious nursing homeof Gwalior various facilities are made available like ICCU, Surgical Ward, Burn andCasualty Ward, Orthopedic Colly Curoma wherein number of patients are admitted and taking treatment. It is said thatin the hospital 10 ICCU beds, two surgical ICCU beds, 6 beds for burncasualties and 13 beds for Orthopedics and 12 for cynic patients including 19special wards and 12 beds of angical post operationwith two post delivery beds and 5 casualty beds. In addition thereto, 38general beds are available to which 6 doctors, 56 compounders and nurses are working. In addition thereto, 38general beds are available to which 6 doctors, 56 compounders and nurses are working. Thus, the nursing home is offering services for betterhealth to the citizens of Gwalior , however, keepingthe vehicles by the attendants in the stand and to remain present may not causeany act of public nuisance to the inhabitants, more so, the aforesaid nuisanceis not by the petitioner, however, in the name of public nuisance, power soexercised under section 133 of Criminal Procedure Code is arbitrary. It isfurther said that prior to passing the order, the procedure so prescribed undersection 138 of Criminal Procedure Code has not been followed. It is alsosubmitted that the orders impugned have been passed without affording anopportunity to cross-examine the complainant and other witnesses and withoutsupplying the report and comments of the Executive Magistrate which are reliedupon, in order impugned. Thus, in gross violation of principle of naturaljustice and without affording reasonable opportunity of hearing as prescribed,the order Annexure P-l is passed, it may be set aside. It is, further, saidthat the reasons so specified showing public nuisance are not attributable tothe petitioner. Therefore also, the power under section 133 of CriminalProcedure Code cannot be exercised to the extent of directing the closure ofnursing home of the petitioner. Accordingly, prayer has been made to allow thepetition and to quash the orders impugned Annexures P-1 and P-2. 6.The Respondents No. 1 and 2 have filed their reply raising preliminaryobjection of alternative remedy. On merits, it is stated that the ExecutiveMagistrate has carried out the inspection on 19-2-2010 and submitted its report on 23-2-2010 as per Annexure R-1. The ChiefMedical and Health Officer, Gwalior ,also carried out inspection on 19-2-2010 and submitted report, Annexure R-2. However, relying upon such report, thepreliminary order Annexure P-6/R-3 dated 26-2-2010 was passed. After passing the order, a noticeto show cause was given and on filing reply by the petitioner comments werecalled from the Executive Magistrate, Gwalior .On submitting the comments dated 30-3-2010 Annexure R-4 and after giving oralopportunity of hearing to the petitioner and on due consideration of the reply,the District Magistrate found that the nuisance is being created by the nursinghome run by the petitioner situated at Laxmibai Colony, Gwalior and therefore, directed for itsclosure by the order dated 24-4-2010, Annexure P-1. It is further said that theobject to initiate proceedings under section 133 of Criminal Procedure Code wasto stop the public nuisance which was being caused on account of running ofnursing home by the petitioner and procedure under section 133 of CriminalProcedure Code is summary in nature which has been followed, however, ordersAnnexure P-1 and P-6 have rightly been passed. 7.Respondents No. 3, the complainant namely Ramgopal Thakle , by filing reply has stated that, he is the seniorcitizen residing along with his wife, used to wake up in the night on accountof nuisance made by the attendants of the patients. By the siren of theambulance, they used to suffer with nightmare and on account of which they aresuffering from various health problems. It is said that the proprietor of thepetitioner Nursing Home has given an indirect proposal for sale of the house onreceiving more than the market value but because he could not succumb to thepressure, however, he has to fight for the just cause. It is said that thereports and the documents so attached were prepared on the hypothesis of theauthorities committing illegalities and the petitioner is going to becomericher day by day. Answering respondent submitted a complaint, thereupon theaction was taken and the order Annexure P-l has rightly been passed afterfollowing the provisions as contemplated under M. P. Upacharya Grah Tatha Rajo Upachar Sthapana Sambandhi ( Registrikaran Tatha Anugyapan ) Adhiniyam , 1973, By attaching, various photographs, it istried to demonstrate that the attendants are used to keep vehicles on thepublic road creating nuisance. It is said that by not making proper arrangementsof parking, sitting arrangements of the attendants and by not making the otherfacilities available to the attendants, they are creating nuisance for theinhabitants. Biomedical waste has also not been properly organized which isinjurious to the health of the citizens, therefore, the order of closure hasrightly been passed after following procedure. 8. Shri K. N. Gupta, learnedsenior counsel appearing on behalf of the petitioner contends that theauthority competent has not acted fairly in exercising the power as conferredunder section 133 of Criminal Procedure Code. It is further contended thatwhile passing the order Annexure P/6 and P/1, the procedure so specified undersection 138 of Criminal Procedure Code has not been followed, however the orderof closure of institution in such proceedings is vitiated and it may bequashed. It is further contended thatwhile passing the order Annexure P/6 and P/1, the procedure so specified undersection 138 of Criminal Procedure Code has not been followed, however the orderof closure of institution in such proceedings is vitiated and it may bequashed. He has placed reliance on the judgment of the Apex Court in the caseof C. A. Avarachan vs. C. V. Sreenivasan and another, (1996) 7 SCC 71 . It is submitted by Shri Gupta, learned senior counsel, that if there is a public nuisance, first ofall, the removal of those nuisances may be ordered but the authority competentcannot direct that the said trade or occupation should be stopped directing theclosure of Nursing Home, though the nuisance is not by the proprietor or ownerof nursing home, under section 133 of Criminal Procedure Code. In support ofthe said contention, reliance has been placed on the judgment of Apex Court inthe case of Gobind Singh vs. Shanti Samp , (1979) 2 SCC 267 . It is further contended thatin the case of State of M.P. vs. Kedia Leather andLiquor Ltd. and others, (2004) 1 MPLJ 7 , the Apex Court has considered thescope of section 133 of Criminal Procedure Code and observed that to takeproceedings under section 133 of Criminal Procedure Code which is of civilnature and if it is opted to prevent public nuisance immediately withoutfurnishing an opportunity to lead the evidence, passing of such an order is notin conformity with law. It is said that the order impugned has been passed onthe consideration which is not shown in the show cause notice, though the orderis persuaded on those issues also. However, orders closing the Nursing Homecannot be sustained in the eyes of law, therefore it may be quashed. 9. Smt Nidhi Patankar , learned Government Advocate representing theState Government, contended that the authority competent is having jurisdictionto remove the public nuisance if it is hazardous to the residents of the saidcommunity. After receiving the report of the Executive Magistrate and also thereport of the Chief Medical & Health Officer Gwalior ,the order impugned has rightly been passed invoking the powers under section133 (1)(b) and (ii) of the Criminal Procedure Code. After receiving the report of the Executive Magistrate and also thereport of the Chief Medical & Health Officer Gwalior ,the order impugned has rightly been passed invoking the powers under section133 (1)(b) and (ii) of the Criminal Procedure Code. It is said that whilepassing the order an opportunity of hearing has been allowed to the petitionerand after having been satisfied that continuation of functioning of the saidNursing Home in the locality, the nuisance to the residents is being created,thus, the order of closure of Nursing Home has rightly been passed. 10. Shri Prashant Sharma,learned counsel representing the respondent No. 3 has contended that on thecomplaint made by respondent No. 3 the action was taken by the Collector,District Gwalior and passed the order which is inconformity with section 133(1 )( b)(ii) of the CriminalProcedure Code. It is contended by him that the conduct of any trade oroccupation or the keeping of any goods or merchandise; is injurious to thehealth or physical comfort of the community may be desisted from carrying onsuch business and trade, however the authority competent exercising such powerhas passed the order restraining the operation of the Nursing Home which cannotbe said to be beyond scope and power of such authority under the Act. So far asfollowing the procedure, it is urged by him that the order impugned has rightlybeen passed because the procedure of summons trial is to be followed asapparent from section 138 of the Criminal Procedure Code. In the said case, anopportunity of hearing ought to have been allowed which has been afforded tothe petitioner, however the orders Annexure P/1 andP/6 have rightly been passed. In view of the foregoing, it is urged that theorder impugned passed by the Collector concerned is in accordance with lawwhich is liable to be upheld by dismissing the petition. 11.Petitioner, by filing the application for taking the document on recordAnnexure P-12, contended that the registration of the Nursing Home has beenrenewed by the Chief Medical and Health Officer, Gwalior , by issuing certificate upto 31-3-2013 . The RegionalOfficer of M. P. Pollution Control Board has issued the renewal ofauthorization under Biomedical Waste (Management & Handling) Rules, 1998.The Municipal Corporation, Gwalior ,has also issued a cleanliness certificate of Nursing Home dated 4-7-2011 . The G.R. Medical College Society, Gwalior received Rs . 28 ,9217 - forbiomedical waste to a period from October, 2011 to December, 2011. The RegionalOfficer of M. P. Pollution Control Board has issued the renewal ofauthorization under Biomedical Waste (Management & Handling) Rules, 1998.The Municipal Corporation, Gwalior ,has also issued a cleanliness certificate of Nursing Home dated 4-7-2011 . The G.R. Medical College Society, Gwalior received Rs . 28 ,9217 - forbiomedical waste to a period from October, 2011 to December, 2011. The FireOfficer of the Municipal Corporation, Gwalior ,has also issued a certificate dated 26-12-2011 issuing no objection up to December, 2012. The photographs of the house of thecomplainant have also been filed as Annexure P-17, P-18 and P-19 to indicatethe fact that there is no obstruction in front of his house and no vehicles areparked or having any waste material in front of house creating a cause to makecomplaint. Affidavits of P. L. Sharma and L. P. Savita have also been produced to indicate the fact that the reference made in thereport of the Executive Magistrate of those names against petitioner has beendisputed. The photographs have also been produced to indicate the fact that theowner of the nursing home has made the arrangements for the parking, at a placewhere the vehicle's are already parked in addition to the parking arrangementsmade by the Corporation. In view of the said facts, it is urged that theallegations so alleged against the petitioner are unfounded otherwise, theChief Medical and Health Officer is not required to issue the renewalcertificate under M. P. Upacharya Grah Tatha Rajo Upachar Sthapana Sambandhi ( Registrikaran Tatha Anugyapan ) Adhiniyam , 1973. The Pollution Control Board and theMunicipal Corporation cannot issue the certificate of renewal and cleanlinessin the hospital. In view of the said, it is urged that the action so taken bythe District Magistrate, is arbitrary, mala fide andin the non-observance of the principle of natural justice. 12.After having heard learned counsel appearing for the parties and on perusal ofthe record, the issue of alternative remedy so raised is not germane becauseafter granting stay about more than 1-1/2 years backthis petition is pending and the reply, rejoinder and the application takingadditional document on record has already been filed. It is made clear herethat the alternative remedy would not operate as a bar where the writ petitionseeks enforcement of any of the fundamental rights; where there is violation ofprinciples of natural justice; or where the order of the proceedings are whollywithout jurisdiction or the vires of an Act ischallenged. It is made clear herethat the alternative remedy would not operate as a bar where the writ petitionseeks enforcement of any of the fundamental rights; where there is violation ofprinciples of natural justice; or where the order of the proceedings are whollywithout jurisdiction or the vires of an Act ischallenged. In the present case, the non-observation of principles of naturaljustice prior to closure of Nursing Home wherein 90 patients are admittedcoupled with the fact that the procedure so contemplated to pass the orderunder section 133 of Criminal Procedure Code has not been followed, however inthe facts of this case the issue of alternative remedy invoking jurisdictionunder Article 226 of the Constitution of India does not create absolute bar.The guidance may be taken from the judgment of the Apex Court in the case ofWhirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others, (1998) 8SCC 1. In that view of the matter, the preliminary objection so raised ishereby repelled. 13.On facts, it is apparent that the petitioner is a proprietor and running aNursing Home in the name of " Maheshwari NursingHome". The certificate and the renewals were made under Madhya Pradesh Upacharya Grah Tatha Rajo Upchar Sthapana Sambandhi ( Registrikaran Tatha Anugayapan ) Adhiniyam , 1973. Onthe date of taking action, it was valid and further renewed by the ChiefMedical and Health Officer, District Gwalior . Thecertificate having no pollution issued by the Pollution Control Board is alsoavailable on record. The petitioner-Nursing Home has given the contract ofremoving the biomedical waste to "Davis Surgico "to which amount has been paid in G.R. Medical College Society, Gwalior , and the receipts are available and the documentsof collection of wastes of Nursing Home are also filed. The MunicipalCorporation has given a contract for keeping two wheelers and four wheelers toone Ranveer Singh Chauhan .As per photographs Annexure P-22 available on record, the petitioner has alsomade the arrangements of parking on the owner's risk. As per photographsAnnexure P-17, P-18 and P-19, no vehicle is parked or the waste is spread infront of the house of the complainant. As per the photographs filed by thecomplainant along with the return, it is not made clear that in front of hishouse there was a nuisance by parking the vehicles or by spread of waste. As per photographsAnnexure P-17, P-18 and P-19, no vehicle is parked or the waste is spread infront of the house of the complainant. As per the photographs filed by thecomplainant along with the return, it is not made clear that in front of hishouse there was a nuisance by parking the vehicles or by spread of waste. Thepetitioner has refuted the report of the Executive Magistrate which is basedupon two residents, namely, P. L. Sharma and L. P. Savita by filing their affidavits and has made an endeavour to satisfy that there is no public nuisance caused by him as specified in theshow-cause notice, Annexure P-6. Even after passing the order impugned, the M.P. Pollution Control Board has issued the certificate having no pollution andthe Municipal Corporation, Gwalior ,of cleanliness in the hospital and also the Fire Officer of the Corporation hasissued the certificate of appropriate fire arrangements. However, theallegations of public nuisance so alleged against the petitioner in the show cause Annexure P/6 dated 26-2-2010 has been disputed by the petitioner. Theinspection report of the Executive Magistrate dated 23-2-2010 and comments dated 30-3-2010 so relied upon in the order of closure havenot been admittedly supplied prior to passing of the orders Annexure P-l andP-6. In the impugned order Annexure P-1, various other factors have been takeninto consideration relying upon the inspection of the Chief Medical and HealthOfficer, Gwalior and his report dated 19-2-2010 which has also not been supplied though persuaded to pass the order impugned.It is to be observed here that the competent authority is bound to supply theirregularities, if any, pointed out by any other authority and it form thebasis to arrive at a conclusion of desisting to carry on the business. Thenon-supply of those documents is amounting to violation of principle of naturaljustice which is required in fair administration. Thus the principle of naturaljustice has not been observed by respondents while passing the order. 14.In the case where the action under section 133 of Criminal Procedure Code forremoval of public nuisance is required, the procedure as contemplated undersection 138, Criminal Procedure Code ought to be followed. Thus the principle of naturaljustice has not been observed by respondents while passing the order. 14.In the case where the action under section 133 of Criminal Procedure Code forremoval of public nuisance is required, the procedure as contemplated undersection 138, Criminal Procedure Code ought to be followed. However, relevantprovisions of sections 133 and 138 of the Criminal Procedure Code are requiredto be reproduced which are thus : - 133.Conditional order for removal of nuisance (1) Whenever a District Magistrate ora Sub-divisional Magistrate or any other Executive Magistrate speciallyempowered in this behalf by the State Government on receiving the report of apolice officer or other information and on taking such evidence (if any) as hethinks fit, considers- (a) that any unlawful obstruction or nuisance should beremoved from any public place or from any way, river or channel which is or maybe lawfully used by the public; or (b)that the conduct of any trade or occupation or the keeping of any goods ormerchandise; is injurious to the health or physical comfort of the community,and that in consequence such trade or occupation should be prohibited orregulated or such goods or merchandise should be removed or the keeping thereofregulated; or (c)that the construction of any building, or the disposal of any substance, as islikely to occasion conflagration or explosion, should be prevented or stopped;or (d)that any building, tent or structure, or any tree is in such a condition thatit is likely to fall and thereby cause injury to persons living or carrying onbusiness in the neighbourhood or passing by, and thatin consequence the removal, repair or support of such building, tent orstructure, or the removal or support of such tree, is necessary; or (e) that any tank, well or excavation adjacent to any suchway or public place should be fenced in such manner as to prevent dangerarising to the public; or (f)that any dangerous animal should be destroyed, confined or otherwise disposedof, such Magistrate may make a conditional order requiring the person causingsuch obstruction or nuisance, or carrying on such trade or occupation, orkeeping any such goods or merchandise, or owning, possessing or controllingsuch building, tent, structure, substance, tank, well or excavation, or owningor possessing such animal or tree, within a time to be fixed in the order - (1) to remove such obstruction or nuisance; or (ii)to desist from carrying on, or to remove or regulate in such manner as may bedirected, such trade or occupation, or to remove such goods or merchandise, orto regulate the keeping thereof in such manner as may be directed; or (iii) to prevent or stop the construction of such building,or to alter the disposal of such substance; or (iv) to remove, repair or support such building, tent orstructure, or to remove or support such trees; or (v) to fence such tank, well or excavation; or (vi) to destroy, confine or dispose of such dangerousanimal in the manner provided in the said order; or , if he objects so to do, to appear before himself or someother ExecutiveMagistrate subordinate to him at a time and place to be fixed by the order, andshow cause, in the manner hereinafter provided, why the order should not bemade absolute. (2)No order duly made by a Magistrate under this section shall be called inquestion in any Civil Court . Explanation-A "public place" includes also property belonging to the State,camping grounds and grounds left unoccupied for sanitary or recreative purposes. 138.Procedure where he appears, to show cause .- (1) If theperson against whom an order under section 133 is made appears and shows causeagainst the order, the Magistrate shall take evidence in the matter as in asummons-case. (2)If the Magistrate is satisfied that the order, either as originally made orsubject to such modification as he considers necessary, is reasonable and proper,the order shall be made absolute without modification or, as the case may be,with such modification. (3)If the Magistrate is not so satisfied, no further proceedings shall be taken inthe case. Onreading of .section 133 of Criminal Procedure Code it is apparent that itempowers the District Magistrate or a Sub-divisional Magistrate or any otherExecutive Magistrate that on receiving the report of a police officer or otherinformation and on taking such evidence, he may pass an order with respect tosubject matter so specified under sub-section (1)(a) to (f) making aconditional order requiring the person causing such obstruction or nuisance, orcarrying 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 atime to be fixed in the order and may direct to remove such obstruction ornuisance or to desist from carrying on, or to remove or regulate in such manneras may be directed, such trade or occupation, or to remove such goods ormerchandise, or to regulate the keeping thereof in such manner as may bedirected. It may also prevent or stop the construction of such building, or toalter the disposal of such substance; or to remove, repair or support suchbuilding, tent or structure, or to remove or support such trees; or it mayfurther direct to fence such tank, well or excavation; or to destroy, confineor dispose of such dangerous animal in the manner provided in the said order.While passing such an order the procedure as per section 138 of CriminalProcedure Code is required to be followed. As persection 138 of Criminal Procedure Code it is apparent that if the personagainst whom an order under section 133 is necessary, then by issuing notice toshow cause, the Magistrate can take evidence in the manner as in asummons-case. For the purpose of passing such order under section 133, onreceiving a report the evidence is required to be taken as thought fit by theauthority. In fact, it is an integral part and mandatory requirement of section133 of Criminal Procedure Code, however even for passing preliminary order theprocedure has to be followed. The procedure for summons case is specified inChapter XX of the Code of Criminal Procedure, 1973 under section 254, CriminalProcedure Code. Thereby the Magistrate shall proceed to hear the prosecutionand take all such evidence as may be produced to support the prosecutionallegation, and also to hear the accused and take all such evidence as heproduces in his defence . In the present case, whilepassing preliminary order dated 26-2-2010 asking reply from petitioner four reasons were specified for the closure of theNursing Home. It is to be observed here that prior to passing the orderAnnexure P/6 the procedure as specified under section 138 of Criminal ProcedureCode has not been followed although it is required to be followed mandatorily . In the facts of the present case, it is to befurther observed that the competent authority while passing the final orderdate 24-4-2010 Annexure P-l has referred to the reply filed by the petitionerand specified that the oral opportunity of hearing was allowed but from theorder, it is not clear that an opportunity has been given either to theprosecution to prove the allegations so levelled against the petitioner affording an opportunity of cross-examination on theprosecution witnesses and also not afforded an opportunity to the petitioner tolead evidence in defence which is the requirement ofthe summary trial so specified under section 254 of Criminal Procedure Code. Insuch circumstances, in the opinion of this Court prior to passing preliminaryorder Annexure P-6 and the final order Annexure P-l, the procedure socontemplated under section 138 of Criminal Procedure Code has not beenfollowed. The aforesaid analogy fortifies from the judgment of the Apex Court in the case of C.A. Avarachan (supra). In such circumstances, in the opinion of this Court the order AnnexureP/1 dated 24-4-2010 andorder Annexure P/6 dated 26-2-2010 so passed is not in conformity to the procedure as prescribed under section 138of Criminal Procedure Code. The aforesaid analogy fortifies from the judgment of the Apex Court in the case of C.A. Avarachan (supra). In such circumstances, in the opinion of this Court the order AnnexureP/1 dated 24-4-2010 andorder Annexure P/6 dated 26-2-2010 so passed is not in conformity to the procedure as prescribed under section 138of Criminal Procedure Code. 15.Now, the argument so advanced by Mr. Prashant Sharma,learned counsel appearing on behalf of respondent No. 3 with respect to removalof the trade or occupation or the keeping of any goods or merchandise which maybe found injurious to the health and physical comfort of the community may bepassed desisting from carrying on the same, is required to be dealt with. Afterperusal of section 133(1)(a) to (f) of Criminal Procedure Code it is apparentthat the District Magistrate is competent on receiving the report of policeofficer or other information, and may direct for removal of public nuisancespecified in sub-section (a) to (f) and on receiving such report and takingevidence and the person causing such obstruction or nuisance to desist fromcarrying on, or to remove or regulate in such manner as may be directed or forother purposes also so specified therein. In this regard, Chapter X of CriminalProcedure Code has been enacted with a view for maintenance of public order andtranquility wherein part-A deals with unlawful assemblies while part-B relatesto public nuisances. The opening word of section 133 of Criminal Procedure Codeindicates that the powers so conferred under the Act is required to beexercised by passing conditional order of removal of nuisance. Theinterpretation of sub-section (ii) of section (1) (b) with respect to desistingfrom carrying on the trade or occupation has to be understood in the context towhich the said chapter has been enacted by the legislature. However, in theopinion of this Court, while exercising power so contemplated under section 133of Criminal Procedure Code, the District Magistrate is bound to record afinding that the act so alleged falls within the purview of public nuisancecaused by performing the business and its removal is necessary. In the facts ofthe present case, the allegation with respect to keeping of the two wheeler orfour wheeler vehicles on the road by the attendants or nuisance created by theattendants is required to be examined whether it is an act of public nuisanceby the petitioner. In the facts ofthe present case, the allegation with respect to keeping of the two wheeler orfour wheeler vehicles on the road by the attendants or nuisance created by theattendants is required to be examined whether it is an act of public nuisanceby the petitioner. So far as other allegations of not observing the biomedicalwaste and which is spread by the animals which may be hazardous to the publicat large and having connection with the conduct of any trade or occupation orkeeping of any such goods or merchandise injurious to life or physical comfortof the community is required to be seen in connection to desist from carryingon or to remove or regulate it in a manner as may be directed for such trade oroccupation. On the said issue, the authority competent is required to record afinding that despite payment for collection of the biomedical waste by thepetitioner not maintaining the cleanliness from the said biomedical waste is afault on his part or it is the fault of the collecting agency. The authority competentis also bound to see that the services rendered by running a Nursing Home ofthe standard so specifically pleaded rendering services for general importancecarries more weight or the nuisance created by the attendants in the localityas alleged is having greater importance. It is further required to be examinedthat the complaint of individual person against the Nursing Home is a complaintto vindicate or having some substance to remove the public nuisance so reallycreated. On all these issues after furnishing an opportunity to lead evidence,finding must be recorded that the case so alleged falls within the purview ofpublic nuisance and is required to be removed or regulated otherwise directionfor its removal is necessary. It is not a case where by virtue of an act of airpollution, water pollution or fire pollution or otherwise health safety of theinhabitants of area is being affected. In the facts of this case, on findingany fault, the direction must be issued to regulate the said public nuisance orto remove it if any and non-compliance may be fatal. On subsequently findingviolation of such direction, appropriate orders under section 133(1 )( b)(ii) Criminal Procedure Code may be directed which is onthe extreme end in the fact and circumstances of the case. On subsequently findingviolation of such direction, appropriate orders under section 133(1 )( b)(ii) Criminal Procedure Code may be directed which is onthe extreme end in the fact and circumstances of the case. However, withoutfollowing the procedure contemplated under section 138 of Criminal ProcedureCode directly passing the preliminary order dated 26-2-2010 Annexure P-6 and final order dated 24-4-2010 Annexure P-l for closure ofthe Nursing Home wherein number of patients are admitted cannot be upheld. The analogy taken by the Hon. Apex Court in the caseof Govind Singh (supra) may be followed wherein it issaid that where the health, safety and convenience of the public at large isinvolved, it would be safer to accept the view of the Magistrate but at the.same time he could not direct in his final order to cease carrying on thebakery trade at the particular site. 16. In that view of the matter, I am of the consideredopinion that the final order Annexure P/1 dated 24-4-2010 and the preliminary order Annexure P/6 dated 26-2-2010 are hereby quashed andaccordingly, this petition succeeds and is hereby allowed. The authoritycompetent is at liberty to take recourse to law, if permissible in view of theforegoing observations. In the facts and circumstances of thecase, parties to bear their own costs. Petitionallowed.