JALOUR SINGH SON OF HARNEK SINGH, RESIDENT OF VILLAGE PATHRALA, TEHSIL AND DISTRICT PATIALA Vs. STATE OF PUNJAB, THROUGH SECRETARY HOME, PUNJAB, CHANDIGARH, AND OTHERS

JUDGEMENT

(1.) THE writ petition challenges the order passed by the Additional Sessions Judge, Bhatinda, on 04.09.2008 in the exercise of his revisional jurisdiction, affirming the order passed by the Assistant Commissioner, Bhatinda, under Section 133 Cr.P.C. for abatement of a nuisance. According to the 3rd respondent Gurnam Singh, the petitioner was committing nuisance by having a poultry Civil Writ Petition No.1729 of 2009 (O&M) -2 -farm in his premises which caused enormous stench and foul smell. This contention was accepted by the Assistant Commissioner and he had directed the respondent to shift the poultry farm to some other place away from the residential area and if he failed to do so, he would be ordered to be close the business. In revision to the Additional Sessions Judge, the order was confirmed and the said order before this Court was also challenged under Section 482 Cr.P.C. but the petitioner had the petition dismissed as withdrawn. He then challenged the order by means of the above writ petition and this Court had initially dismissed the petition holding that if the petitioner had challenged the order passed by the Sessions Judge through a petition before this Court exercising jurisdiction of Section 482 Cr.P.C., and elected not to prosecute the same and withdrew the same, he could not again challenge the very same order by means of a writ petition under Article 226. The Court had held that the Criminal Procedure Code provided a complete mechanism for redressal of a grievance and having withdrawn the criminal miscellaneous application before this Court, the writ jurisdiction itself being not an alternative remedy hence it could not be entertained. This order which was passed on 04.11.2009 was challenged in an appeal in LPA No.1354 of 2009 and the Division Bench was pleased to set aside the order of this Court and directed the matter to be heard again.

(2.) THE petition is rather strange. The order passed by the authorities under the Criminal Procedure Code in exercise of the respective jurisdiction conferred under Sections 133, 397 to 399 and 482 Cr.P.C. were exhaustive. I cannot really understand how the writ petition could be appropriate but rectitude and judicial discipline would require that the case is disposed of on merits in the light of the directions of the Division Bench. This decision could hardly be taken as of any precedent value, lest it should be understood that a writ petition will always lie against the orders passed by the Executive Magistrate and the Sessions Judge in their respective jurisdictions under the provisions of Criminal Procedure Code.

(3.) APART from the evidence of RW1 and RW4 on the writ petitioner's side, the Deputy Director, Animal Husbandry had given a report as PW6 and PW5 Ranjit Singh, Revenue Patwari, had also given his report as Ex.PG after visiting the spot. Their statements were to the fact that the poultry farm caused inconvenience to the villagers as foul smell emanated from it and adversely affected the atmosphere. Adverting to the evidence of RW1, the District Judge had noted that the writ petitioner herein had admitted in the cross -examination that he does not know whether it caused foul smell. Dealing with the Poultry Inspector's evidence RW6, the District Judge stated that the evidence of the former could not be preferred over the evidence of PW5 and PW6, who were Halqa Patwari and Deputy Director, Animal Husbandry respectively. The Sessions Judge also held that from the plan produced before the Court, it clearly showed that it was situate in a thick populated area and the Executive Magistrate himself had paid a visit at the spot and found that the poultry farm was creating nuisance for the public. The Court found that the location of the poultry farm within a thickly populated area would be a source of nuisance and found no reason to take a different view from the first Authority.