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2019 DIGILAW 3369 (PNJ)

Naveen Kumar v. Narinder Singh

2019-12-18

SURINDER GUPTA

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JUDGMENT SURINDER GUPTA, J.(Oral) - Petitioner seeks quashing of order dated 06.12.2013 (Annexure P-17) passed by learned lower Court of revision and orders dated 18.06.2012 (Annexure P-15) and 11.12.2012 (Annexure P-16) passed by learned Sub Divisional Magistrate, Jagraon, vide which the petitioner was directed to shut down operation of the atta chakki in the thickly populated area of Municipal Council, Jagraon. 2. Proceedings under Section 133 Cr.P.C. were initiated by the Sub Divisional Magistrate, Jagraon on the application of respondent-Narinder Singh, resident of House No. 2192, Mohalla Shri Teg Bahadur, Jagraon. He alleged in his application that the petitioner had installed the atta chakki in thickly populated area without permission of Municipal Council, Jagraon. He grinds spoiled wheat as feed for cattle and while grinding mixes mustered oil and barley in the wheat. A lot of dust is created due to running of the atta chakki and it becomes difficult to breathe. The respondent and his family members are now suffering from asthma and heart diseases. The doctor advise that they should protect themselves from dust but the respondent, his family members and residents of mohalla cannot protect themselves from the dust emanating from the atta chakki, which also creates vibration as a result of which family members of respondent could not study in a calm atmosphere and remain under mental tension. The petitioner also grinds chilli powder, which create further complication for the residents of that area, who face difficulty in passing from that spot. 3. After recording evidence, the petition was allowed by Sub Divisional Magistrate, Jagraon vide order dated 18.05.2010. However, that order was set aside in the revision on technical grounds with the observation that Sub Divisional Magistrate has not adopted the procedure as provided under the law and the case was remitted with direction to decide the same afresh after adopting due process of law. Against order of Additional Sessions Judge, Ludhiana, the petitioner filed petition, which was dismissed by this Court. 4. On remand of the case, Sub Divisional Magistrate, Jagraon recorded statements of residents of the area, who have jointly given application dated 12.12.2006 to shut down the atta chakki. He called the report of Tehsildar, Jagraon with direction to him to visit the spot and find if running of the atta chakki is affecting health of general public and residents of that area. Tehsildar, Jagraon gave his report dated 15.06.2012. He called the report of Tehsildar, Jagraon with direction to him to visit the spot and find if running of the atta chakki is affecting health of general public and residents of that area. Tehsildar, Jagraon gave his report dated 15.06.2012. Report of the Punjab Pollution Control Board was also called, which apprised the Sub Divisional Magistrate that noise and vibration due to running of the atta chakki was beyond the permissible limit. Tehsildar, Jagraon had reported that this atta chakki is situated in thickly populated market and residential area. Dust and the vibration due to running of the atta chakki is badly affecting the health of residents of that area and he recommended shutting down of the atta chakki. Punjab Pollution Control Board vide its report dated 22.12.2004 had also recommended legal action against the petitioner. He issued a conditional order calling upon the petitioner to show cause as to why order for closure of the atta chakki be not passed. Vide order dated 11.12.2012, the Sub Divisional Magistrate ordered closure of the atta chakki. The petitioner preferred revision before the Additional Sessions Judge, Ludhiana, which was dismissed vide order dated 06.12.2013. 5. Learned counsel for the petitioner has argued that proceedings initiated by the Sub Divisional Magistrate are not tenable under Section 133 Cr.P.C. as this provision is not meant for protecting the right of an individual but of the general public. The atta chakki was installed in the year 2001 with the consent of all the residents including mother of the respondent. Electric connection was released by the Electricity Board on the application of petitioner dated 27.06.2001 (Annexure P-l) on no objection of neighbours if the atta chakki be installed. Thereafter, a complaint was made to the Electricity Board by the neighbours, which was resolved and the Sub Divisional Officer, Punjab State Electricity Board, Jagraon was intimated of the settlement dated 20.07.2001 (Annexure P-2). Running of the atta chakki does not require no objection from Punjab Pollution Control Board. The permission to install the same was given by the District Town Planner, Ludhiana vide order dated 04.02.2005 (Annexure P-5) and the petitioner had been depositing the required licence fee vide receipt Annexure P-6. The Sub Divisional Magistrate of his own has called for the reports of Executive Officer, Municipal Council, Jagraon, Executive Engineer, Pollution Control Board, Jagraon, which amounts to creating of evidence against the petitioner. The Sub Divisional Magistrate of his own has called for the reports of Executive Officer, Municipal Council, Jagraon, Executive Engineer, Pollution Control Board, Jagraon, which amounts to creating of evidence against the petitioner. The respondent, if had any grouse against running of the atta chakki, could avail other remedy instead of approaching the Sub Divisional Magistrate as per provisions of Section 133 Cr.P.C. In support of his contention he has relied on observation of the Apex Court in case of Suhelkhan Khudyarkhan and another vs. State of Maharashtra and others, 2009 (5) SCC 586 , wherein it has been observed that object and purpose behind Section 133 Cr.P.C. is essentially to prevent public nuisance. In this case, the Sub Divisional Magistrate has proceeded to decide the grievance of an individual under this provision and the entire proceedings, as such, are not legal. 6. Section 133 Cr.P.C. reads as follows:- "133. In this case, the Sub Divisional Magistrate has proceeded to decide the grievance of an individual under this provision and the entire proceedings, as such, are not legal. 6. Section 133 Cr.P.C. reads as follows:- "133. Conditional order for removal of nuisance -(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; or (b) that the conduct of 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 orsuch goods or merchandise should be removed or the keeping thereof regulated; or (c) xx xx xx xx (d) xx xx xx xx (e) xx xx xx xx (f) xx xx xx xx Such Magistrate may make 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- (i) to remove such obstruction or nuisance; or (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii) xx xx xx xx (iv) xx xx xx xx (v) xx xx xx xx (vi) xx xx xx xx or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute. (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation- A" public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or re-creative purposes. " 7. It is evident from perusal of above provision that the Sub Divisional Magistrate could proceed as per provisions of Section 133 Cr.P.C. on the report of police officer or other information. The complaint by respondent-Narinder Singh falls in the category of other information received by the Sub Divisional Magistrate. He had not proceeded to resolve the problem faced by the respondent only, rather he has taken note of the application moved by residents of that area after calling reports of various authorities including the report of Pollution Control Board, Tehsildar, Executive Officer, Municipal Council etc. The above reports were called by the Sub Divisional Magistrate to satisfy himself as to whether running of the atta chakki is creating a problem for the residents of the area. There is no dispute with regard to the fact that object and purpose behind Section 133 Cr.P.C. is essentially to prevent public nuisance. Order passed by Sub Divisional Magistrate and affirmed by Court of revision is also to remove public nuisance. 8. Before passing order dated 11.12.2012, Sub Divisional Magistrate, Jagraon had satisfied himself by recording statements of witnesses and taking reports of various authorities that running of the atta chakki by the petitioner is creating a nuisance for general public. The mere fact that electricity connection for the atta chakki was got released by the petitioner in the year 2001 with the consent of certain neighbours does not mean that all the residents and general public in that area had condoned the nuisance created due to running of the atta chakki. It is apparent from letter of petitioner that a dispute about running of atta chakki had started with neighbours immediately when it was started in the year 2001. It is not a case where the neighbours have condoned the nuisance created due to running of the atta chakki for a long period. In the year 2001 objections were raised and in the year 2005 the proceedings under Section 133 Cr.P.C. were initiated by learned Sub Divisional Magistrate, Jagraon. 9. It is not a case where the neighbours have condoned the nuisance created due to running of the atta chakki for a long period. In the year 2001 objections were raised and in the year 2005 the proceedings under Section 133 Cr.P.C. were initiated by learned Sub Divisional Magistrate, Jagraon. 9. In case of Manoj and others vs. Prem Lal, 2006 (3) RCR (criminal) 941, a workshop in the residential area, which was creating pollution, nuisance, health hazard, air pollution, vibration and noise was ordered to be closed and the order of Sub Divisional Magistrate was upheld. 10. In case of Bhan Singh vs. Mohinder Singh. 1997 (3) RCR (Criminal) 281, a coordinate Bench of this court in para 10 of the judgment has observed as follows:- "10. Under Section 133 Criminal Procedure Code if an act is found to be injurious to the physical comfort of the neighbours, it must also then be held that it is injurious to the physical comfort of the community. After all a community only consists of individuals and if a body of individuals are injuriously affected by a particular trade, the interests of the community would best be served by protecting them from injury. These observations were made by Justice T.P. Naik in The State of M.P. v. ManjitRaghu and others, 1964 (2) Crl Law Journal 94. In that case the accused was running a rice mill and was of the view that it does not cause nuisance as it is being run by an electric motor and thus it does not amount to nuisance." 11. Keeping in view facts of the case and law on the point, I am of the considered opinion that orders passed by the learned lower Court of revision, Ludhiana and Sub Divisional Magistrate, Jagraon suffer from no legal infirmity calling for any interference in this petition seeking quashing of those orders. 12. This petition has no merit and the same is dismissed. 13. The matter has remained pending for the last about ten years in various Courts, as such, petitioner is directed to close operation of the atta chakki forthwith. The authorities will initiate immediate action to implement orders passed by the Sub Divisional Magistrate, Jagraon.