Supreme Court of India
KACHRULAL BHAGBIRATH AGRAWAL AND ORS.versusSTATE OF MAHARASHTRA AND ORS.
- Citation
- 2004 INSC 538
- Decided
- 22 September 2004
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
Section 133(1)(b) CrPC applies only when a trade or occupation causes considerable injury to the health or physical comfort of a substantial portion of the community, and the facts established that condition, rendering the SDM’s order valid.
Summary
The appellants, wholesale dealers in dry chillies, stored and handled large quantities of chillies in a godown located in a residential locality. Residents complained that the loading, unloading and storage caused health problems and physical discomfort, and invoked Section 133(1)(b) of the Code of Criminal Procedure before a Sub‑Divisional Magistrate (SDM). The SDM, after inquiry, issued a conditional order prohibiting the trade and directing removal of the goods, finding a public nuisance. The order was set aside by a revisional court but reinstated by the High Court. On appeal, the Supreme Court examined the scope of Section 133(1)(b), holding that the provision applies only when a trade or occupation causes considerable injury to the health or physical comfort of a substantial portion of the community, and that the evidence showed such injury. The Court also affirmed the SDM’s jurisdiction to pass regulatory orders. Consequently, the appeal was dismissed.
Issues considered
- Whether the conduct of storing and handling dry chillies in a godown within a residential area constitutes a public nuisance injurious to health or physical comfort under Section 133(1)(b) CrPC.
- Whether the evidence presented satisfied the requirement that a large section of the community was affected injuriously.
- Whether the Sub‑Divisional Magistrate had jurisdiction to pass a regulatory order under Section 133.
- Interpretation of the term "community" in Section 133(1)(b).
- Whether the order under Section 133 and the consequent order under Section 138 were legally valid.
Legislation cited
- Code of Criminal Procedure, 1973s. 133(1)(b), s. 138
- Indian Penal Code, 1860s. 268
Subjects
public nuisanceSection 133 CrPCtrade or occupationregulatory orderhealth and physical comfortmagistrate jurisdictioncriminal revision
Judgment
KACHRULAL BHAGBIRATH AGRA WAL AND ORS. A
v.
STATE OF MAHARASHTRA AND ORS.
SEPTEMBER 22, 2004
[ARIJIT PASA YAT AND C.K. THAKKER, JJ.] B
Code of Criminal Procedure, 1973-Section J33(l)(b)-Public
nuisance-By trade or occupation-Scope and ambit of-Held: In order to
bring a trade or occupation within operation of Section 133(l)(b), it must
be shown that interference with public comforfwas considerable and a large C
section of public was affected injuriously-The object and purpose behind
the Section is essentially to prevent public nuisance and involves a sense of
urgency.
Appellant No.1 was a wholesale dealer in dry chillies. His godown
for storing dry chillies was in a residential area. The residents of the D
area filed a complaint u/s 133 Cr.P.C. before the Sub-Division Magistrate
(SDM) making the grievance that on account of storing and loading and
unloading of the chillies the health and physical comfort of the residents
of that locality were adversely affected. SDM after inquiry into the
case, found that applicants proved public nuisance and physical E
discomfort and hence directed the appellant not to store and transport
the chillies in the godown and to remove all the goods stored therein.
Revisional Court held that the SDM had committed error in holding
that the business of the non-applicant caused public nuisance. In criminal
revision High Court set aside the order of revisional Court holding that
conditions requisite for passing orders u/ss 133(l)(b) and 138 were F
fulfilled.
In appeal to this Court, appellant contended that it was not
established that the conduct of business was injurious to the health or
physical comfort of the community; that SDM and High Court had not G
examined the aspect as to whether the SDM had jurisdiction to pass
directions regulating conduct of trade or keeping of the goods.
Dismissing the appeal, the Court
HELD: 1. Judgment of the High Court does not suffer from any H·
597
598 SUPREME COURT REPORTSf2004] SUPP. 4 S.C.R.
A infirmity. SDM could consider the suggestions, if any, given by the
appellants, as to the manner in which goods can be stored or conneCted
activities by passing order of regulatory nature. This is permissible by_
the provisions itself which provide that SDM can regulate such activities.
(606-H; 607-A; 607-B]
B 2. Proceedings under Section 133 Cr.P.C. are not intended to settle
private disputes between different members of the public. They are in
fact intended to protect the public as a whole against inconveniences. A
comparison between the provisions of-Sections 133 and 144 of Cr.P.C.
shows that while the former is more specific the latter is more general.
c Therefore, nuisance specially provided in the former Section is taken
out of the general provisions of the latter section. The' proceedings
under Section 133 are more in the nature of civil proceedings than of
criminal nature. While the order under the former is conditional, the
order under the latter is absolute. (605-C; 606-G]
D 3. Section 133(1)(b) relates to trade or occupation which is injurious
to liealth or physical comfort. It itself deals with physical comfort to the
community and not with those acts which are not in themselves nuisance
but in the course of which public nuisance is committed. In order to
bring a trade or occupation within the operation of this Section, it must
be shown that the interferenc~ with public comfort was considerable
E and a large section of the public was affected injuriously. The word
'community' in Section 133(1)(b) cannot be taken to mean residents of
a particular house. · It· means something wider, that is, the public at
large or the residents of an entire locality. The very fact that the provision
occurs in a Chapter with "Public Nuisance" is indicative of this aspect.
F It would, however, depend on the facts situation of each case and it
would be hazardous to lay down any straitjacket formula. [605-D-F)
4. To bring in application of Section 133 of Cr.P.C. there must be
imminent danger to the property and consequential nuisance to the
public. The nuisance is the concomitant act resulting in danger to the life
G or property due to likely collapse etc. The object and purpose behind
Section 133 is essentially to prevent public nuisance and involves a sense
of urgency in the sense that if the Magistrate fails to take recourse
immediately irreparable danger would be done to the public. It applies to
a condition of the nuisance at the time when the order is passed and it is
H not intended to apply to the future likelihood or what may happen at some
K.B. AGRAWAL v. STATE [PASAYAT,.l.}' 599
later point of time. It does not deal with all potential nuisances and on the A
other hand applies when the nuisance is in existence. While the latter is a
more general provision the former is more specific. [606-E-G]
Vasant Manga NikumbaOv.Baburao Bhikanna Naidu, [1995) Supp. 4
sec 54, relied on. B
Staie of MP. v. Kedia Leather and Liquor Ltd and Ors., [2003] 7
sec 389, referred to.
- Halsbury's Laws of England, referred to.
c
5. A conjoint reading of Sections 133 and 138 Cr.P.C. discloses that
it is the function of the Magistrate to conduct an enquiry and to decide
as to whether there was reliable evidence or not to come to the conclusion
to act under Section 133.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. D
1350 of 2003.
From the Judgment and Order dated 14.10.2002 of the Bombay High
Court in Cr!. R. Application No. l 08 of 1994.
Vipin Sanghi, Ms. Roopali Chaturvedi and Rajesh Prasad Singh for the
E
Appellants.
Ravindra Keshavrao Adsure for State.
Satyajit A. Desai and Venkateswara Rao Anumolu for the Respondent F
No. 2.
The Judgment of the Court was delivered by
ARIJIT P ASAY AT, J. : Legality of action taken and order passed by
learned Sub-Divisional Magistrate, Sakoli (for short 'SD'M') under Section -G
133 of the Code of Criminal Procedure, 1973 (in short the 'Code') having
upheld by a learned Single Judge of the Bombay High Court, this appeal has
been filed. It is of relevance to note that the appellants had filed a revision
before the learned Additional Sessions Judge, Gondia, questioning legality
of the order dated 7 .2.1989 passed by the SDM. The revisional authority held
H
''\
600 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A that the order passed by the SDM was not legal. Thereafter a revision was
filed by the five of the original applicants, who had initiated action before
the SDM. The High Court as noted above, by the ,impugned judgment held
that the order passed by the SDM was legal and proper. The revisional court
should not have interfered with it.
B
Backgrounds facts as per the complainants are as follows:
The original non-applicant Mis. Ramchand Bhagirath is a proprietary
concern of Bhagirath Ramchand Agrawal (since deceased). He was a
commission agent in a Kirana goods and was also a wholesale dealer in dry
c chillies. In Ansari Ward of Gondia city, he had a godown in a double storied
building known as Vishnu Kunj where he used to store large quantity of
chillies. The applicants before learned SDM are residents of Ansari Ward
which is mainly a residential locality. Present appellant No. I being a
wholesale. dealer in dry chillies, everyday trucks loaded with dry chillies
come to his godown and then the same are unloaded and stored in the
D
godown. Similarly, loading of dry chillies also goes on for distributing the
same to his customers. This has been going on since several years and it
appears to have become a routine thing. The applicants however made a
grievance that on account of storing of dry chillies in the godown as well
as the work of loading and unloading thereof the health and physical comfort
E of the residents in that locality were affected and it has become practically
impossible for them to bear any further. According to them, the loading and
unloading of chillies cause pollution with the result that many residents in
the locality suffer from sneezing, coughing, asthma, irritation of skin and
burning sensation. The applicants, therefore, moved the Municipal Council
for taking necessary action in this behalf. However, since the Municipal
F
Council did not give any response, the applicants moved learned SDM,
Gondia, under Section 133 of the Code. The learned SDM, after finding that
there was a prima facie case against the present applicants issued a
conditional order dated 12.3.1985 under Section 133(l)(b) of the Code with
a notice to them to show cause as to why the same should not be confirmed
G and made absolute. Pursuant to the said notice, the appellants appeared
before learned SDM, Gondia, and filed reply. In the said reply, it was
submitted that the building "Vishnu Kunj" was being used as godown but
it was denied that the loading and unloading of dry chillies pollutes the
atmosphere and causes physical injury or discomfort to the residents of the
H locality. It was pointed out that the godown is a pakka construction a~d that
K.B. AGRAWAL v. STATE [PASAYAT, J.] 601
whenever loading and unloading is required to be done, water is sprinkled A
to avoid pollution. This has been going on for about 20 years and nobody
ever made any complaint in that behalf. Learned SDM, Gondia, allowed the
parties· to lead evidence in support of their respective contentions. He
recorded part of the evidence and thereafter the case was transferred to
learned SDM, Sakoli, who completed the enquiry. Learned SDM, Sakoli, B
upon consideration of the evidence of the witnesses came to the following
conclusions viz.:
(i) People in general in the locality in sufficient number are suffering from
the loading and unloading of dry chillies and its storage in the godown;
c
(ii) It has resulted not only in their adverse health and discomfort but a few
are permanently suffering in the sense that some of them are suffering
• from sickness and ailment;
(iii) Even the witnesses of the non-applicant admitted that due to this
business, there is discomfort and injury to physical health; D
In this view of the matter, learned SDM, Sakoli, held that the applicants
proved public nuisance and physical discomfort to them. Consequently,
learned SDM, Sakoli, proceeded to pass an order under Section 133 of the
Code, operative part of which reads as follows: E
"The non-applicant is hereby directed that he will not keep, store
and transport chillies in the godown, Vishnu Kunj as the same is
injurious to the health and physical comfort of the community and
he shall also remove all the goods stored therein. This order shall
be given effect from 22nd February, 1989. F
Notice in form No.21 be issued to the non-applicant."
Feeling aggrieved by this order, the present appellants preferred Criminal
Revision Application No.17 of 1989 in the court of the Additional Sessions
Judge, Gandia. The learned Additional Sessions Judge proceeded to reassess G
the evidence adduced by the parties and came to the conclusion that the
learned SDM, committed error in holding that the· business of the non-
applicant causes public nuisance. He further held that the learned SDM
ignored the evidence adduced on behalf of the non-applicant and attached
> too much importance to the evidence of the applicants. The learned H
602 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A Additional Sessions Judge further held that the learned SDM had arbitrarily
used his discretion in favour of the original applicants and, therefore, ·it was ·
a fit case to interfere with the impugned order. In this view of the matter,
the learned Additional Sessions Judge allowed the revision application filed
by the original non-applicant and set aside the order passed by learned SDM.
A Criminal Revision Application was filed by some of the original applicants·
B
before the High Court to set aside the revisional order.
Originally, there were ten applicants, five of whom later on had
withdrawn. Therefore, five of the original applicants moved the High' Court,
which came to hold that the conditions requisite for passing of order under
c Section 133(l)(b) as well as final order under Section 138 of the Code were
fulfilled. Accordingly it set aside order of the revisional Court.
In support of the appeal, learned counsel for the appellants submitted
that the scope and ambit of Section 133 has not been kept in view. The
evidence was not sufficient to show that community was affected by the
D conduct of keeping any goods by the appellant. It has not been established
that such conduct of business was injurious to the health or physical comfort
of the community. It was pointed out that learned Additional Sessions Judge
had analysed the factual arid legal position to hold that the basic requirements
for passing an orderund~r Sectfon 133 of the Code were absent. Alternatively,
E it was submitted that the SDM had the jurisdiction to pass directions
regulating conduct of the trade or keeping of the goods. This aspect has not
been examined by learned SDM and the High Court. For pretty long time
the appellant was carrying business without any grievance whatsoever by any
member of the community. It was submitted that the appellanfis a commission
agent
.. and there was no material to conclude that he was dealing in red chilly.
F The non-dried chillies were stored and cannot in any manner create
inconvenience or injuries to the health and legal comfort of the community.
There was no material to show that the community as such was affected. In
fact, because of business rivalry ten applicants had filed petitions before the
learned SDM. Five of them later on realized that it was not worthwhile to
G proceed in the matter as the ingredients of Section 133 of the Code were not
satisfied and withdrew.
In response learned counsel for the respondents submitted that the
learned SDM had elaborately examined the factual and legal position.
H It was pointed out that while exercising revisional jurisdiction learned
K.B.°AGRAWALv. STATE [PASAYAT,J.] 603
Sessions Judge should not have interfered with the well-reasoned and well- A
merited order passed by the learned SDM. The High Court, therefore,
analysed the factual and legal position afresh and came to the conclusion that
the order passed by the learned SDM under Section 133 of the Code was
justified.
Section 133 so far as it is relevant for our purpose reads as follows:
B
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
c
the report of a police officer or other infonnation and on taking
such evidence (if any) as he thinks fit, considers -
(a) xx xx xx
D
(b) that the conduct of any trade or occupation, or the keeping
of any goods or merchandise; i~ 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; or E
(c)to (f) 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 F
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) xx xx
G
(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 H
604 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A (iii) to (vi) 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
B absolute.
(2) No order duly made by a Magistrate under this section shall
be called in question in any Civil -Court " ··
c xx xx xx"
A proceeding under Section 133 is of a summary nature. It appears
as a part of Chapter X of the Code which relates to maintenance of public
order and tranquility. The Chapter has been classified into four categories.
Sections 129 to 132 come under the category of "unlawful assemblies".
D Sections 133 to 143 come under the category of"public nuisance". Section
144 comes under the category of "urgent· cases of nuisan~e or .apprehend~d
danger" and the last category cover Sections 145 to 149 relating to "disputes -
as to immovable property". Nuisances are of two kinds, ~-~· (i) Public; and
(ii) Private. 'Public nuisance' or 'common nuisance' as defined in Section
268 of the Indian Penal Code, 1860 (iri short the 'IPC') is an offence against
E the public either by doing a thing which tends to the annoyance of the whole
community in general or by neglecting to do anything which the common
good requires. It is an act or omission which causes any common injury,
danger or amoyance to the public or to the people in general who dwell or
occupy property in the vicinity. 'Private nuisance' on the other hand, affects
F some individuals as distinguished from the public at large. The remedies are
of two kinds - civil and criminal. The remedies under the civil law are of
two kinds. One is under Section 91 of the Code of Civil Procedure, 1908
(in short 'CPC'). Under it a suit lies and the plaintiffs need not prove that
they have sustained any special damage. The second remedy is a suit by a
private individual for a special damage suffered by him. There are three
G remedies under the criminal law. The first relates to the prosecution under
Chapter XIV of IPC. The second provides for summary proceedings under
Sections 133 to 144 of the Code, and the third relates to remedies under
special or local laws. Sub-section (2) of Section 133 postulates that no order
duly made by a Magistrate under this Section shall be called in question in
H any civil Court. The provisions of Chapter X of the Code should be so worked
K.B. AGRAWAL v. STATE [PASAYAT, J.] 605
as not to become themselves a nuisance to the community at large. Although A
every person is bound to so use his property that it may not work legal
damage or harm to his neighbour, yet on the other hand, no one has a right
to interfere with the free and full enjoyment by such person of his property,
except on clear and absolute proof that such use of it by him is producing
such legal damage or harm. Therefore, a lawful and necessary trade ought B
not to be interfered with unless it is proved to be injurious to the health or
physical comfort of the community. Proceedings under Section 133 are not
intended to settle private disputes between different members of the public.
They are in fact intended to protectthe public as a whole against inconvenience.
A comparison between the provisions of Section 133 and 144 of the Code
shows that while the former is more specific the latter is more general. c
Therefore, nuisance specially provided in the former section is taken out of
the general provisions of the latter section. The proceedings under Section
133 are more in the nature of civil proceedings than of criminal nature.
Section 133{l)(b) relates to trade or occupation which is injurious to health
or physical comfort. It deals itself with physical comfort to the community D
and not with those acts which are not in themselves nuisance but in the course
of which public nuisance is committed. In order to bring a trade or
occupation within the operation of this Section, it must be shown that the
interference with public comfort was considerable and a large section of the
public was affected injuriously. The word 'community' in Clause (b) of
Section 133(1) cannot be taken to mean residents of a particular house. It E
means something wider, that is, the public at large or the residents of an entire
locality. The very fact that the provision occurs in a Chapter with "Public
Nuisance" is indicative of this aspect. It would, however, depend on the facts
situation of each case and it would be hazardous to lay down any straitjacket
formula. F
The guns of Section 133 go into action wherever there is public
nuisance. The public power of the Magistrate under the Code is a public duty
to the members of the public who are victims of the nuisance, and so he shall
exercise it when the jurisdictional facts are present. "All power is a trust that
we are accountable for its exercise - that, from the people, and for the people, G
all springs and all must exist". The conduct of the trade must be injurious
in presenti to the health or physical comfort of the community. There must,
at any rate, be an imminent danger to the health or the physical comfort of
the community in the locality in which the trade or occupation is conducted.
Unless there is such imminent danger to the health or physical comfort of H
606 SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.
A that community or the conduct ofi~e trade and occupation is in fact injurious
to the health or the physical comfort of that community, an order under
Section 133 cannot be passed. A conjoint reading of Sections 133 and 138
of the Code discloses that it is the function of the Magist"ate to conduct an
enquiry and to decide as to whether there was reliable evidence or not to come
to the conclusion to act under Section 133.
B
Section 133 of the Code as noted above appears in <;:hapter X of the
Code which deals with maintenance of public order and tranquility. It is a
part of the heading "Public nuisance". The term "nuisance" as used in law
is not a term capable of exact definition and it has been pointed out in
C Halsbury's Laws of England that:
"even in the present day there is not entire agreement as to whether .
certain acts or omissions shall be classed as nuisances or whether
they do not rather fall under other divisions of the law of tour".
D In Vasant Manga Nikumba v. Baburao Bhikanntl Naidu, [1995) Supp
4 sec 54 it was observed that nuisance is an inconvenience which materially
interferes with the ordinary physical comfort of human existence. It is not
capable of precise definition. To bring in application of Section 133 of the
Code, there must be imminei;it danger to the property and consequential
nuisance ·to the public. The nuisance is the concomitant act resulting in danger
E
to the life or property due to likely, collapse etc. The object and purpose
behind Section 133 of the Code is essentially to prevent public nuisance and
involves a sense of urgency in the sense that if the Magistrate fails to take
recourse immediately irreparable danger would be done to the public. It
applies to a condition of the nuisance at the time when the order is passed
F and it is not intended to apply to future likelihood or what may happen at
some later point of time. It does not deal with all potential nuisances and
on the other hand applies when the nuisance is in existence. It has to be noted
----
that sometimes there is confusion between Section 133 and Section 144 of
the Code. While the latter is a more general provision the former is more
specific. Wnile the order under the former is conditional, the order under
G
the latter is absolute.
{See State of MP. v. Kedia Leather & Liquor Ltd. and Ors., [2003) 7
sec 389).
H In the background of legal principles set out above, the judgment of the
•
K.B. AGRAWAL v. STATE [PASAYAT, J.] 607
High Court does not suffer from any infirmity. A
The residual question, however, is whether learned SOM could consider
the suggestions, if any, given by the appellants, as to the manner in which
goods can be stored or con9ected activities by passing order of a regulatory
nature. This is permissible by the provisions itself which provide that SOM
can regulate such activities. Therefore, without expressing any opinion on B
that matter for which material can be placed by the appellants before the
learned SOM for appropriate orders in the matter, we direct that if any
suggestion or alternative arrangement is brought to the notice ofleamed SOM
it shall be considered in its proper perspective in accordance with law.
c
With the aforesaid observations, the appeal is dismissed.
K.K.T. Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "public nuisance"Sign in to search