SUHELKHAN KHUDYARKHAN & ANR.versusSTATE OF MAHARASHTRA & ORS.

                      (2009] 5 S.C.R. 1142


A             SUHELKHAN KHUDYARKHAN & ANR.
                                v.
               STATE OF MAHARASHTRA & ORS.
                (Criminal Appeal No.1039 of 2005)
                         APRIL 15, 2009
B
      [DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA
                  AND P. SATHASIVAM, JJ.]

        Code of Criminal Procedure, 1973:
c
        s. 133 - Scope of - Discussed - On facts, order of High
    Court directing removal of the encroachment does not suffer
    from infirmity so as to call for interference.
       Appellants were tenants on the suit premises for 15-
D 20 years where they erected a tin shed and were running
  a religious bookshop. Municipal Council tried to remove
  the shop. Appellants filed civil suit. SOM issued a
  conditional order to remove the shop on the basis of
  complaint of respondent no.2. Appellants appeared
E before SOM and requested for dismissal of application of
  respondent no.2. The SOM by order directed appellants
  to remove the shop. Appellants filed revision which was
  dismissed. They filed writ petition before High Court
  which also directed appellants to remove encroachment.
F Hence the appeal.
        Disposing of the appeal, the Court

      HELD: 1. A proceeding under Section 133 CrPC is of
  a summary nature. It appears as a part of Chapter X of
G 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". Sections 133 to 143 come

H                              1142
          >     SUHELKHAN KHUDYARKHAN & ANR. v. STATE OF 1143
                          MAHARASHTRA & ORS.
                 under the category of "public nuisance". Section 144          A
                 comes under the category of "urgent cases of nuisance
                 or apprehended danger" and the last category covers
                Sections 145 to 149 relating to "disputes as to immovable
                property". Nuisances are of two kinds, i.e. (i) Public; and
          .;    (ii) Private. 'Public nuisance' or 'common nuisance' as        B
                defined in Section 268 IPC is an offence against 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            c
                common injury, danger or annoyance to the public or to
                the people in general who dwell or occupy property In the
                vicinity. 'Private nuisance' on the other hand, affects
               some individuals as distinguished from the public at
                large. The remedies are of two kinds - civil and criminal.     D
                The remedies under the civil law are of two kinds. One is
                under Section 91 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
                                                                               E
-              three 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        F
               this Section shall be called in question in any civil Court.
               The provisions of Chapter X of the Code should be so
               worked as not to become themselves a nuisance to the
               community at large. Although every person is bound to
               so use his property that it may not work legal damage or        G
               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          H
    1144       SUPREME COURT REPORTS [2009) 5 S.C.R.


A 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 protect the public as a whole
B   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. Therefore, nuisance specially provided in the
    former section is taken out of the general provisions of
c   the latter section. The proceedings under Section 133 are
    more in the nature of civil proceedings than of criminal
    nature. Section 133(1)(b) relates to trade or occupation
    which is injurious to health or physical comfort. It itself
    deals with physical comfort to the community and not
    with those acts which are not in themselves nuisance but
D
    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 c:omfort was considerable and a large section
    of the public was affected injuriously. The word
E   'community' in Clause (b) of Section 133(1) 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 containing "Public
F   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. The
    guns of Section 133 go into action wherever there is
    public nuisance. The public power of the Magistrate
G   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. The              ••
    conduct of the trade must be injurious in presenti to the
    health or physical comfort of the community. There must,
H   at any rate, be an imminent danger to the health or the
    1146       SUPREME COURT REPORTS [2009) 5 S.C.R.

A       Kachrulal Bagirath Agrawal v. State of Maharashtra
    (2005) 9 sec 36, relied on.

      3. In the background facts, the order passed by the
  High Court does not suffer from any infirmity to warrant
B any interference. [Para 16) [1152-F-G]

                         Case Law Reference:
        (1995) supp 4 sec 54        referred to        Para 7
        (2003) 1 sec 389            referred to        Para 7
c
        (2005) 9 sec 36             relled on          Para 15
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1039 of 2005.

D       From the Judgment & Order dated 27.07.2004 of the High
    Court of Judicature at Bombay, Bench at Aurangabad in
    Criminal Writ Petition No. 294/1995.

        Kuldip Singh for the Appellants.

E        Sanjay Kharde, Arvind S. Avhad, Chandan Ramamurthi,
    Ravindra Keshavrao Adsure, Atul Dakh and Vishal Madke for
    the Respondents.

        The Judgment of the Court was delivered by
F        DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
    to the judgment of a learned Single Judge of the Bombay High
    Court Aurangabad Bench dismissing the writ petition filed by
    the appellants.

G        2. Background facts projected by the appellant are as
    follows:
        Appellants are tenants on plot No.3/1120 since last 15-20
    years where he has erected a tin shed and running religious
H
~
          SUHELKHAN KHUDYARKHAN & ANR. v. STATE OF 1147
    ,>     MAHARASHTRA & ORS. [DR. ARIJIT PASAYAT, J.]
         bookshop known as "R.K. Kitab Ghar". Shop licence and A
         electric connection were obtained for the said shop. Municipal
         Council has also recognized the shop of the appellants and had
         allowed the appellants to run the said shop for last many years.
         At the instigation of respondent No.2 i.e. J.K. Shaikh, the .·
         Municipal Council tried to remove the shop of appellants aod 8
         there they filed suit bearing RCS No. 29 of 1994 before Civil
         Judge 9(J.D), Bhusawal. On 20.2.1995, Sub Divisional
         Magistrate issued a conditional order to remove the shop of
         the appellants on the basis of the complaint filed by respondent-
         J.K. Shaikh. The appellants appeared before Sub Divisional c
         Magistrate, Bhusawal on 8.3.1995 and made a request for
         dismissal of application filed by respondent No.2. The Sub
         Divisional Magistrate, by order dated 26.5.1995 directed the
         present appellants to remove the shop named as 'R.K. Kitab
         Ghar". The appellants being aggrieved by the said order, filed
                                                                           D
         Criminal Revision Application before learned Ill Additional
    '    Sessions Judge, Jalgaon on 31.5.1995. The said revision was
         dismissed after hearing the parties on 5. 7.1995.

               3. Stand of the appellants was that Section 133 of the
         Code of Criminal Procedure, 1973 (in short the 'Code') had         E
         no application to the facts of the present case. The High Court
         did not accept the plea. The High Court's directions for removal
         of the encroachment was stated to be without jurisdiction. The
         High Court did not accept the stand and dismissed the writ
         petition as noted above.                                           F

              4. Learned counsel for the appellants submitted that there
         was order of status quo and therefore the direction as given is
         clearly without jurisdiction.

               5. Learned counsel for the respondent-State on the other G
         hand submitted that the order of status quo did not have any
    ~    relevance so far as the present dispute is concerned and that
         it related to a different property.

             6. Section 133 of the Code appears in Chapter X of the         H
    1148         SUPREME COURT REPORTS [2009) 5 S.C.R.                     ,._

A 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 Ha/sbury's Laws of
    England that:
B
         "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 tort".
c         7.ln Vasant Manga Nikumba vs. Baburao Bhikanna
    Naidu (1995 Supp (4) SCC 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,
D   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 or property due
    to likely collapse etc. The object and purpose behind Section
    133 of the Code is essentially to prevent public nuisance and
E   involves a sense of urgency in the sense that if the Magistrate
    fails to take recourse immediately irreparable damage 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 not intended to
    apply to future likelihood or what may happen at some later point
F   of time. It does not deal with all potential nuisance, 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. While the order
    under the former is conditional, the order under the latter is
G
    absolute. The proceedings are more in the nature of civil
    p1oceedings than criminal proceedings.

      8. One significant factor to be noticed is that the person
  against whom action is taken is not an accused within the
H meaning of Section 133 of the Code. He can give evidence
 SUHELKHAN KHUDYARKHAN & ANR. v. STATE OF1149
  MAHARASHTRA & ORS. [DR. ARIJIT PASAYAT, J.]
on his own behalf and may be examined on oath. Proceedings A
are not the proceedings in respect of offences. The Water Act
and the Air Act are characteristically special statutes.

     9. The provisions of Section 133 of the Code can be called
in aid to remove public nuisance caused by discharge of
                                                                 8
effluents and air discharge causing hardship to the general
public. To that extent, the learned counsel for the appellant is
correct in his submission.

    10. The above position is highlighted in State of M.P. vs.
Kedia Leather and Liquor Ltd. [(2003) 7 SCC 389].              C

       11. 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      0
 to 132 come under the category of "unlawful assemblies".
 Sections 133 to 143 come under the category of "public
 nuisance". Section 144 comes under the category of "urgent
 cases of nuisance or apprehended danger" and the last
 category covers Sections 145 to 149 relating to "disputes as        E
 to immovable property". Nuisances are of two kinds, i.e. (i)
 Public; and (ii) Private. 'Public nuisance' or 'common nuisance'
 as defined in Section 268 of the Indian Penal Code, 1860 (in
 short the 'IPC') is an offence against the public either by doing
 a thing which tends to the annoyance of the whole community         F
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 annoyance to the public or tci the
people in general who dwell or occupy property in the vicinity.
'Private nuisance' on the other hand, affects some individuals
as distinguished from the public at large. The remedies are of       G
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          H
   1150         SUPREME COURT REPORTS [2009] 5 S.C.R.

A for a special damage suffered by him. There are three
   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
B 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 any civil Court. The provisions of Chapter X of
  the Code should be so worked as not to become themselves
  a nuisance to the community at large. Although every person
C 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 not to be
D 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
  protect the public as a whole against inconvenience. A .
E 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. 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
F in the nature of civil proceedings than of criminal nature.
  Section 133(1 )(b) relates to trade or occupation which is
  injurious to health 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
G 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
H to mean residents of a particular house. It means something
             SUHELKHAN KHUDYARKHAN & ANR. v. STATE OF 1151
,             MAHARASHTRA & ORS. [DR. ARIJIT PASAYAT, J.]
            wider, that is, the public at large or the residents of an entire A
            locality. The very fact that the provision occurs in a Chapter
            containing "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.

                    12. The guns of Section 133 go into action wherever there    8
              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      C
             for the people, 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       D
             conducted. Unless there is such imminent danger to the health
             or physical comfort of that community or the conduct of the
             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        E
            of the Code 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.
                                                                                  F
                 13. Section 133 of the Code as noted above appears in
            Chapter 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 Halsbury's Laws
            of England that:                                                      G

        ~        "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
                                                                                 H
    I
    1152 ·        SUPREME COURT REPORTS [2009) 5 S.C.R.


A          divisions of the law of tour".

        14. In Vasant Manga Nikumba vs. Baburao Bhikanna
  Naidu (1995 Supp (4) SCC 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
8
  definition. To bring in application of Section 133 of the Code,
  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 or property due
  to likely collapse etc. The object and purpose behind Section
C 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 and it is not intended to apply
D 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
E general provision the former is more specific. While the order
  under the former is conditional, the order under the latter is
  absolute.

      15. The above position was highlighted in Kachrula/
F Bagirath Agrawal vs. State of Maharashtra (2005 (9) SCC 36).
        16. In the background facts as noticed above the order
    passed by the High Court does not suffer from any infirmity to
    warrant any interference.

G          17. The appeal is accordingly disposed of.

    D.G.                                        Appeal disposed.