ALISHER Vs. STATE OF HARYANA

JUDGEMENT

(1.) Ali Sher of Mandi Dabwali, District Sirsa has moved the present petition under Section 482 of the Code of Criminal Procedure challenging the proceedings pending against him under Section 133 of the Code before the Sub Divisional Magistrate, Mandi Dabwali at the instance of Amrit Lal and Mohan Lal, respondents. No. 2 and 3 regarding the alleged nuisance created by the running of Rui Penja Machine (cotton ginning machine) in a shop owned by the petitioner.

(2.) The petitioner has alleged that the aforesaid machine is being run in a commercial area as is evident from a site plan Annexure P-6, that he had been paying licence fee to the Municipal Committee, Mandi Dabwali for the years 199091, 1991-92 and 1992-93 vide receipts Annexures P.? P.8 and P.9 that some time back a civil suit for permanent injunction was also instituted by Surinder Kumar son of Mohan Lal respondent No. 3 but it was dismissed on 29/11/1991 (Annexure P. 11) that even now another Civil Suit has been instituted by Mohan Lal, respondent No. 3 which is pending in the court of Sub-Judge, 1st Class, Mandi Dabwali (Annexure PA) and an application for temporary injunction has been dismissed by means of a speaking order dated 16/9/1992 (Annexure PA).

(3.) The details given in the petition, referred to above, show that the act of running a cotton ginning machine at the premises in question is not a new one and it had been in existence for the last several years. In T.K.S.M. Kalyanasundaram v. Kalyani Ammal and another it was observed that no action could be taken under Section 133 of the Code of Criminal Procedure where the obstruction or the nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil court. In Asharfi Lal v. The State, it was observed that action under Section 133 Cr. P.C. could be taken where the obstruction or nuisance was made recently. The factual position as given above, thus, does not justify the initiation of proceedings under Section 133 of the Code of Criminal Procedure.