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2015 DIGILAW 555 (MP)

Abdul Saeed v. Tahir Ali Saifee

2015-05-07

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The applicants have preferred the present revision against the order dated 22.2.2008 passed by the 12th Additional Sessions Judge, Jabalpur in criminal revision No. 350/2006, whereby the order dated 19.10.2006 passed by the SDM, Jabalpur in M.Cr.C. No. 34/1999 under Section 133 of the Cr.P.C. was reversed and the revision was allowed and it was directed that nuisance created by the applicants be removed. 2. The facts of the case, in short, are that, a complaint under Section 133 of the Cr.P.C. was filed before SDM that the respondent No. 1 has a shop in the name of Champion Typewriters to repair various type writers. In front of shop of the respondent No. 1, the applicants were running their hotel. In between both the shops, there is a public road having 11.5 feet width. That road has been used by businessmen, workers and customers of the shops and other citizens. The applicants in that road created a platform of 7 feet length and therefore, portion of the road was blocked by that platform. The applicants were in habit to throw their remaining food of hotel and dirty water on that road and to create nuisance. So many complaints were made by the respondent No. 1 but, no action was taken. Thereafter, the respondent No. 1 has moved a complaint under Section 133 of the Cr.P.C. The SDM has issued a show cause notice to the applicants and also inspected the spot on 21.10.1999 and thereafter, a final order has been passed. The applicants have filed a revision No. 199/2000, in which Third Additional Sessions Judge vide order dated 20.10.2000 directed to give an opportunity to the parties to adduce their evidence and thereafter, an order be passed. Consequently, SDM vide order dated 19.10.2006 dismissed the application under Section133 of the Cr.P.C. but, the revisionary Court vide order dated 22.10.2008 reversed the order passed by the SDM. 3. I have heard the learned counsel for the parties at motion stage. 4. In the present case, after perusal of the evidence adduced by the parties, it is admitted that the applicants have constructed a platform in the space between the shops of the applicants and the respondent No. 1 having 7 feet length and a Tandoor/Bhatti (clay oven) is also kept on that platform and all cooking work etc. is being done on that platform. is being done on that platform. Learned counsel for the applicants has submitted that provision under Section 133 of the Cr.P.C. shall not apply in the present case because it is not a public road and no obstruction has been made on that public road. In support of his contention, he has placed his reliance upon the various judgments and orders passed by various High Courts in cases of "Bhaiya Gauri Shankar Vs. Bhagely Pandey" [AIR 1925 Oudh. 130 (1)], "B.S. Corbett and others Vs. Sonaulla Basuria", [AIR 1933 Cal. 150], "Sushil Chandra Vs. Tushar Kanti and others", [AIR 1955 NUC 1060 (Cal.)], "Jagna and others Vs. Emperor", [AIR 1931 Lah. 576], "Sibte Husain and another Vs. Emperor", [AIR 1937 All. 785], "Basanti Devi Vs. Rez" [AIR 1949 All 650] and "Ashrafi Lal Vs. State", [ AIR 1965 All 215 ]. Reliance has also been placed upon the order passed by Hon'ble Apex Court in case of "Ramautar and others Vs. U.P.", [ AIR 1962 SC 1794 ]. In all above cases, various Courts have decided that there is a lot of difference between private nuisance and public nuisance. On the factual position of that particular case, it was found that there was no public nuisance and therefore, order passed under Section133 of the Cr.P.C. could not be passed. In this connection, the law laid by Allahabad High Court in case of Basanti Devi (supra) may be referred, in which it is held that Magistrate shall not use powers under Section 133 of the Cr.P.C., if a person can be prosecuted in ordinary law. Similarly, in case of Asharfi Lal (supra), the High Court has held that for long standing unlawful obstruction, action can be taken under Section 133 of the Cr.P.C. on proof of genuine urgency for its removal is required. 5. On the other hand the learned counsel for the respondent No. 1 has placed his reliance upon the judgment passed by single Bench of this Court in case of "Akhilendra Arjaria Vs Banarshidas and others", [ (1997) 1 M.P.L.J. 376 ], in which it is held that every inch of the public way is to be used by the public and therefore, no part of public way could be permitted to be used otherwise. In the light of the aforesaid judgments and orders of various Court, if factual position of this case is examined then, it would be apparent that shop of the applicants is in front of the shop of respondent No. 1 and there is a passage between these two shops. It is not a case of the applicants that the passage is the personal property of the applicants and the respondents No. 1 and his customers are permitted to visit by that passage to go to the shop of the respondent No. 1. The applicants have filed the copy of sale deed to show that there was an open land near the property but, if that open land is converted for the use as a way for the shop of the respondent No. 1 then, certainly if it is a public way, if the passage is not owned by the applicants. If the passage is used by the customers of the applicants or the respondent No. 1 to visit their shops then, certainly that passage falls in the purview of a public way. There is no way to the shops of applicants even and it is not claimed by the applicants that the passage was the private property. Hence, the submission made by the learned counsel for the applicants cannot be accepted that it is a nuisance of private nature. 6. Learned counsel for the applicant has invited the attention of this Court to the report of Tahsildar that the Platform was found and dirty water and food remains were not thrown on that passage found by the Tahsildar. However, the SDM concerned has ignored the report dated 21.10.1999 prepared by the then, SDM, who found that nuisance. If the applicants knew about the visit of Tahsildar then, they could create cleanliness for his inspection and therefore, by the inspection report of the Tahsildar, previous inspection done by SDM cannot be brushed aside. Hence, the testimony of witnesses produced from the side of the respondent No. 1 appears to be acceptable. It is proved by the respondent No. 1 that the applicants have constructed a 7 feet long platform in which they are keeping a Tandoor/Bhatti of hotel and preparing their food. This is an act of public nuisance. They cannot use any part of that passage which is a public way. It is proved by the respondent No. 1 that the applicants have constructed a 7 feet long platform in which they are keeping a Tandoor/Bhatti of hotel and preparing their food. This is an act of public nuisance. They cannot use any part of that passage which is a public way. Similarly, the evidence of the witnesses of respondent No. 1 is acceptable that the applicants are in habit to throw the dirty water and food remains on that passage, causing problem to the persons who were passing through that passage. 7. The revisionary Court has rightly reversed the order of the SDM. It the duty of the SDM to remove all such constructions, which cause public nuisance. The applicants would have also directed not to throw their dirty water and food remains on that way, which is being used by the public to visit the shops of applicants as well as respondent No. 1. No illegality or perversity is visible in the order passed by the revisionary Court. The factual position of those cases of so many judgments and orders referred by the learned counsel for the applicants is different and cannot be applied in the present case. There is no substance in the revision filed by the applicants. Consequently, the present revision is hereby dismissed at motion stage. 8. Copy of the order be sent to the Courts below for information and compliance.