MANEKLAL KARSANDAS DAVDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . The present petitioner has preferred this application under Art. 227 of the Constitution of India praying for issuance of writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari quashing and setting aside the judgment and order dt. 7-8-1987 delivered in Criminal Revision Application No. 56 of 1985 by the Court of the Addl. Sessions Judge, Surendranagar and in turn to quash and set aside the judgment and order dated 22-7-1985 delivered in Criminal Application No. 1 of 1985 by the Court of Sub-Divisional Magistrate, Vadhavan Sub-Division, Surendranagar, at Annexures "B" and "A" respectively.

(2.) . The facts of the present case are that : One Rameshchandra Chhotalal Thakkar submitted an application on 10-10-1984 to the District Magistrate, Surendranagar stating therein that the petitioner is running the Industry of "Kankoo" in his residential house which shares the common wall of his residential premises. According to the complainant, the said industry is carried out with the help of 10 workmen. That on account of this there is a continuous flow of the small species and the red particles of "Kankoo" in the residence of the complainant. As a result of this flow, such particles fall on the clothes and the edible articles and equipments and it also causes breathing trouble to the family members of the complainant. According to the complainant, the petitioner is using "Acid" in manufacturing "Kankoo" and therefore, as and when it is mixed with air it burns eyes of the children and the complainant and as such it is harmful and adversely affects the vision. It was therefore, prayed that such activity of the petitioner should be prohibited under Sec. 133 of the Code of Criminal Procedure, 1973.

(3.) . The District Magistrate sent the complaint to the Sub-Divisional Magistrate, Surendranagar. the Sub-Divisional Magistrate, Surendranagar sent the said application to PSI, Surendranagar and PSI Surendranagar had recorded statements of the neighbouers and complainant etc. and submitted his report to the Sub- Divisional Magistrate and the learned Sub-Divisional Magistrate prima facie observed from the police report that the activity of the petitioner is harmful and injurious to health of the neighbours as well as the Primary Students of the Girls School situated in the adjoining premises and on 30-1-1985 it was ordered to close down the industry of manufacturing of "Kankoo" under Sec. 133 of the Cr. P. Code. Thereafter, after recording evidence and after appreciating evidence led before him by his order dt. 22-7-1985 ordered to the petitioner not to carry on the industry, the process of manufacturing the Kankoo and the commercial dealings in this behalf and from his residential premises. It is further held that on account of the activities of the petitioner it becomes nuisance to the public and school children and, therefore, it is established as a nuisance and, therefore, interim order dt. 30-1-1985 passed under Sec. 133 of the Code is confirmed and made it permanent under Sec. 138(2) of the Code.