BALWANTRAI K SHUKLA Vs. DALWADI DAHYA CHHAGAN

JUDGEMENT

(1.) This is complainants appeal directed against the judgment and order passed by the learned Judicial Magistrate First Class Limbdi acquitting the opponents of having committed offences punishable under sec. 221(2) and 227 of the Gujarat Municipalities Act 1963

(2.) Briefly stated the facts are that the appellant is the Chief Officer of the Limbdi Municipality. Opponent No. 2 is the son-in-law of opponent No. 1. The case of the appellant was that the opponents were running a flour mill in the house of opponent No. 1 situated in the locality known as Ugamna Para in the town of Limbdi. On the southern side of this house is situated the house owned by Ranchhoddas Ramjibhai and between this house and the house of opponent No. 1 there is an old wall made of mud. The flour mill was worked by means of a 5 Horse Power electric motor. Opponent No. 1 had obtained a permission to run the flour mill from the Limbdi Municipality. Ranchhoddas Ramji made applications to the Limbdi Municipality (hereinafter referred to as the Municipality) on November 2 1965 and May 4 1966 alleged that as a result of the vibration caused by the running of the flour mill there was likelihood of damage to the wall. It was also alleged that the noise was caused due to the running of the flour mill which endangered health of the persons residing in the house. Mr. M. B. Bhala the Chief Officer in charge of the Municipality along with a surveyor visited the premises of opponent No. 1 on May 4 1966 He drew up a Rojkam. The Executive Committee of the Municipality (hereinafter referred to as the Executive Committee) inspected the house of opponent No. 1. The Executive Committee thereafter passed resolution on June 13 1966 to the effect that the running of the flour mill by the opponents was likely to cause damage to the northern wall of the house of Ranchhoddas Ramji was injurious to the health of the persons residing therein and decided to give notice to the opponents to stop the running of the flour mill. In pursuance of this resolution of the Executive Committee a notice dated June 23/24 1966 was issued to the opponents to stop the running of the flour mill within 3 days of the receipt of the notice. This notice was not complied with by the opponents and a complaint was filed on August 16 1967 by the Chief Officer of the Municipality in the Court of the Judicial Magistrate First Class Limbdi against the opponents for running the flour mill in the premises in respect of which the notice was given by the Executive Committee and also for committing breach of the directions given in the notice and thus having committed offences punishable under secs. 221(2) and 227 of the Gujarat Municipalities Act 1963 (hereinafter referred to as the Act.).

(3.) Opponent No. 1 in his statement under sec. 342 of the Criminal Procedure Code stated that he had sold the flour mill to opponent No. 2 and he was not running the flour mill at the date of the notice. The defence of opponent No. 2 was that no doubt he was running the flour mill but the running of the flour mill did not cause any nuisance or damage to the property of Ranchhoddas Ramji.