A R SINGH Vs. S D M

JUDGEMENT

(1.) IN this writ petition, the petitioner has alleged that the added Respondent No. 2 K. Sankara Rao was running a large scale poultry in the vicinity of his residence and that on account of mass killing and dressing of birds there, a public nuisance of grievous nature has been created hazarding health to the neighbours. He accordingly filed an application under section 133, Cr. P.C. before the Sub-Divisional Magistrate, South Andaman, Port Blair for causing an enquiry and taking necessary action for removing the said nuisance. It has been alleged that in spite of filing of the said application and subsequently pursuing the same by sending reminders, the Magistrate did not take any action so far. Accordingly, it has been alleged that Magistrates inaction caused injury to the petitioner and so he has prayed for an order of mandamus directing the Magistrating concerned to act in accordance with law. The first respondent is the Sub Divisional Magistrate, South Andaman. Although due notice was served on the Ld. Govt. Pleader, he has not enteryd appearance to defend the said respondent. No. Affidavit-in-Opposition has also been filed on his behalf. The added Respondent No. 2 K. Sankara Rao has, however, filed an Affidavit-in - Opposition defending the allegation made in the writ petition and a relevant affidavit-in-reply has also been filed by the writ petitioner. On behalf of the petitioner Mr. V.K. Gupta the Learned Advocate submits that he has filed an application under section 133, Cr. P.C. The Magistrate is competent to initiate a proceeding and pass necessary orders for enquiry, but he did not take any action so far against the petitioner, and as such, grievances raised by him remain unattended. Therefore, he prays that the Magistrate concerned may be directed by this Court to perform the statutory duty by passing a statutory order on the application filed by the petitioner. Annexure-A is a copy of the petition filed before the Sub Divisional Magistrate, South Andaman and Annexure-B is a reminder to that petition. Annexure-D is a mass petition sent to the Public Health Officer, Port Blair alleging that careless disposal of litter and waste materials of dressed birds like skull, intestine, feathers etc. by Respondent No. 2 is causing environmental pollution. It is alleged that this petition has not yielded any result. On behalf of the Respondent No. 2, Mr. Abdus Sattar, the Learned Advocate, submits that the petition filed by the writ petitioner is not a bona fide one. He also states that there are other poultry farms in the said locality but there is no objection against the working of the said poultry farms. He accordingly prays that the petition should be rejected. Mr. V.K. Gupta, the Learned Advocate for the petitioner in support of his case has mentioned two decisions passed by the High Court. One is the ORDER delivered by Dilip Kumar Basu, J. in Anil Krishna Pal v. State of West Bengali. It was held in that case that when the dispute between private parties ultimately affects rights and privileges of neighbours and members of public at large, it must be deemed to be a public nuisance caused by private citizens. The other case referred to by him, is reported in Smt. Ajeet Mehta and others v. State of Rajasthan ofothers. IN the said case, A.K. Mathur, J. of Rajasthan High Court held that the opposite parties were doing business of fodder and were stocking the fodder namely chipta, pala, Kurtar Khakla and grass at a plot in certain colony. IN the course of their business, the opposite parties used to bring different kinds of fodder in huge quantity through truck and tractors and stagged on the plot and consequently the residents of the locality on account of such stagging of the fodder suffered physical discomfort and it proved to be a health hazard for the residents of whole of the colony. The Magistrate ordered removed of the nuisance from the area and further directed not to do any business of fodder from the plot in that residential colony and the same was ultimately upheld by the High Court. IN the instant case, creation of public nuisance has been alleged by the petitioner. On an analysis of section 133, Cr. P.C. it is found that the petition might have been covered by clause (b) of SubSection (1) of the said Section. Actually whether any nuisance has been created as alleged by the petitioner is a matter for consideration of Magistrate and the same cannot be decided by this Court at this stage. But the correspondents made by the petitioner followed by the mass petition before the Public Health Officer clearly shows that the petitioner wanted the matter to be enquired into and disposed of by the Magistrate. There is nothing to show that any action has been taken on this petition. When the petitioner filed a petition before the Magistrate under Section 133, Cr. P.C., it is the duty of the Magistrate to pass order for holding an enquiry if required. It is the statutory duty of the Magistrate to dispose of the petition under section 133, Cr. P.C. according to law which he has failed to do. This writ petition, therefore, succeeds. Let a writ of Mandamus be issued against the Sub Divisional Magistrate directing him to

(2.) 1990 Cr. L.J. 1956. consider the petition dated 13/2/1992 filed the petitioner A.P. Singh before him and dispose of the same according to law within one month from the date of communication of this order. There will be no order as to costs in this proceeding. Let plain copy of this order duly Countersigned by the Assistant Registrar (Court) be given to both the Learned Advocates for the parties on usual undertakings to apply for and obtain certified copy of the same for communication and compliance in consequence. Petition allowed.