VALLABHDAS KASHIWALE Vs. SMT. SUMATI AND ANOTHER

JUDGEMENT

(1.) FIRST Additional Sessions Judge, Burhanpur, disallowed the Petitioner's Criminal Revision No. 68/2001, on 29th August, 2001, wherein, the Petitioner challenged the order dated 18th April, 2001, passed by S.D.M. Burhanpur, in Criminal Case No. 10/93, giving rise to an opportunity to the Petitioner for seeking exercise of inherent powers.

(2.) THE facts which persuaded the Respondent No. 1 to file a petition against this Petitioner under Section 133 of the Code of Criminal Procedure may be summarized as follows on 16th August, 1993, a petition under Section 133 of the Code of Criminal Procedure, which will hereinafter referred to as Code, was filed in the Court of S.D.M., Burhanpur, on behalf of Respondent No. 1, which stood registered as Case No. 10/93. As per photocopy of this petition, Respondent No. 1 is running an educational institution called "Bal Vinay Mandir", in the residential house of Madhavpurkar, situated at Mahajanpeth Ward, Burhanpur, since 1978, which is registered with Board of Education/Department of Education, Madhya Pradesh, and which imparts education to about 300 -400 students annually, studying in Classes 1st, 2nd and 3rd. On the eastern side of this institution, the Petitioner has erected looms by constructing a hall on the vacant land of his father, whereas, he obtained permission from Municipal Corporation for constructing a residential house. It is also the case of Respondent No. 1 that Municipal Corporation, Burhanpur, has prohibited the erection of power -loom or additional power -looms within the prescribed area, in exercise of power provided under Section 246 of the Municipal Corporation Act, 1956, still the Petitioner is running these looms illegally, without obtaining any permission. It is further the case of Respondent No. 1 that on account of running of the looms erected by this Petitioner, the whole atmosphere has become troublesome to the students of the institution and to the neighbouring inhabitants, who are ailing and old, because it creates unbearable noise which is adversely affecting the hearing power of the children. Since cotton is being used in these power looms, hence the thin particles are continuously being spread in the atmosphere, which again adversely affects the health. Then, the running of these looms creates constant vibrations in the neighbouring houses, inclusive of Vinay Bal Mandir, where 300 to 400 students are facing the trouble in obtaining their education. On the aforesaid facts, the Respondent No. 1 sought the closure of the power -looms of the Petitioner on the ground of public nuisance.

(3.) THEREAFTER , the learned S.D.M. disposed of the case afresh by order dated 18 -4 -2001, by issuing this direction to the Petitioner under Section 138(2) of the Code that he must immediately close the "KARKHANA" (Workshop) situated on eastern side of Bal Vinay Mandir, after a distance of 4 to 5 feet. This Respondent unsuccessfully challenged the aforesaid order in Criminal Revision No. 68/2001, which stood disposed of by First A.S.J. Burhanpur, on 29th August, 2001, giving rise to this petition.