VASANT MANGA NIKUMBA Vs. BABURAO BHIKANNA NAIDU

JUDGEMENT

(1.) Leave granted.

(2.) This appeal by special leave is directed against the judgment of the bombay High court in Criminal Appeal No. 1078 of 1991, dated 9/3/1993 affirming the order passed by the Sessions Judge and the Sub-Divisional magistrate under Section 133 of the Code of Criminal Procedure, 1973 for short 'the Code'. The admitted facts are that the appellants are tenants in 15 shops in jalgaon Municipality. A notice under Section 133 was issued on 1/11/1983 in criminal Case No. 2 of 1976 staling that from the material placed before him the Sub-Divisional Magistrate i. e. SDM was satisfied that the shops are in a very dilapidated condition which are beyond repairs and that therefore they are immediately required to be removed (under Section 133 of the Code). The appellants have objected to and adduced evidence. On consideration thereof, the learned Magistrate held that unless the shops are demolished there is imminent danger to the neighbouring residents, accordingly directed demolition of 15 shops. On revision, the Sessions Judge affirmed the order as well as by the High court. The question, therefore, is whether the facts of this case would warrant to invoke Section 133 of the Code. Section 133 of the Code reads thus :

(3.) Nuisance is an inconvenience materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. It may be public or private nuisance. As defined in Section 268 Indian Penal Code, public nuisance is an offence against public either by doing a thing which tends to the annoyance of the whole community in general or by neglect 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 to the people in general who dwell or occupy the property in the vicinity. On the alternative it causes injury, obstruction, danger or annoyance to persons who may have occasion to use public right. It is the quantum of annoyance or discomfort in contra distinction to private nuisance which affects an individual is the decisive factor. The object and public purpose behind Section 133 is to prevent public nuisance that if the Magistrate fails to take immediate recourse to Section 133 irreparable damage would be done to the public. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under section 133 is not intended to settle private disputes or a substitute to settle civil disputes though the proceeding under Section 133 is more in the nature of civil proceedings in a summary nature.