VIJAYKUMARJAMNADAS WADERA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE original applicants Nos. 1, 2, 3, 8 and 10 have filed this Revision Application under Section 401 read with Section 397 of the Criminal Procedure Code and challenged the order dated 28-4-1994 passed by the Additional Sessions Judge, Gondia, in Criminal Revision Application No. 17 of 1989, setting aside the order dated 7-2-1989 passed by the Sub-Divisional Magistrate (for short S. D. M.) in Misc. Criminal Case No. 86 of 1987. The relevant facts which are necessary for disposal of this revision application may be stated, in brief, as under : The original non-applicant M/s 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 chillies. In Ansari Ward of Gondia city, he had a godown in a double storeyed building known as Vishnu Kunj where he used to store large quantity of chillies. The applicants are residents of Ansari Ward, which is mainly residential locality. Non-applicant No. 2 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 godown. Similarly, loading of dry chillies also goes on for distributing the same to the customers of non-applicant No. 2. This has been going on since several years and it appears to have become a routine thing. The applicants have, however, a grievance that on account of storing of dry chillies in the godown as well as the work of loading and unloading thereof. It has been affecting the health and physical comfort of the residents in that locality and it has now 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. It appears that the applicants, therefore, moved the Municipal Council for taking necessary action in this behalf. However, since the Municipal Council did not give any response, the applicants moved the S. D. M. , Gondia, under Section 133 of the Criminal Procedure Code. The learned S. D. M. , after finding that there was a prima facie case against the non-applicant, issued a conditional order dated 12-3-1985 under Section 133 (1) (b) of the Criminal Procedure Code with a notice to the non-applicant to show cause as to why the same should not be confirmed and made absolute. Pursuant to the said notice, the non-applicant appeared before the S. D. M. , Gondia, and filed his reply. In the said reply, it was admitted that the building "vishnu Kunj" is being used as godown but it is denied that the loading and unloading of dry chillies pollutes the atmosphere and causes physical injury or discomfort to the residents of the locality. The non-applicant pointed out that the godown is a pakka construction and that whenever loading and unloading is required to be done, water is sprinkled to avoid pollution. The non-applicant also pointed out that this has been going on for about 20 years and that nobody ever made any complaint in that behalf. It appears that the S. D. M. Gondia, allowed the parties to lead evidence in support of their respective contentions. He recorded part of the evidence and it appears that thereafter the case was transferred to the S. D. M. Sakoli, who completed the enquiry. The S. D. M. Sakoli, 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; (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.

(2.) IN this view of the matter, the learned S. D. M. Sakoli, held that the applicants proved public nuisance and physical discomfort to them. Consequently, the learned S. D. M. Sakoli, proceeded to pass the following order, which reads:

(3.) FEELING aggrieved by this order, the non-applicant preferred Criminal Revision Application No. 17 of 1989 in the Court of the Additional Sessions Judge, Gondia. The learned Additional Sessions Judge proceeded to reassess the entire evidence adduced by both the parties and came to the conclusion that the learned S. D. M. committed error in holding that the business of the non-applicant causes public nuisance. He further held that the learned S. D. M. ignored the evidence adduced on behalf of the non-applicant and attached too much importance to the evidence of the applicants. The learned Additional Sessions Judge further held that the learned S. D. M. 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 the learned S. D. M. It is this order which is sought to be set aside in this Criminal Revision Application.