RAMBHAROSE Vs. SUNDARLAL

JUDGEMENT

(1.) 1. There appears to be a certain amount of confusion in this case. Rambharose, who is the applicant before me, made an application under Sections 133 and 144, Criminal P.C., in the Court of the Sub-divisional Magistrate, Saugor. The application was registered Under Section 133 and the application clearly had reference to the proposed construction of a cesspool in a lane behind the applicant's house. The application runs as follows: That the non-applicants have started construction, which is now nearing completion, of a cesspool in a narrow public lane used as a passage by the public including the applicant whose house is situated in that lane, That it is intended by the: non-applicants that the filthy water from their houses will flow to and collect in the said cesspool. That the said cesspool will affect the sanitation and health of the passers-by and the members of the community who reside there and annoy them. That as shown by the certificate of the Civil Surgeon attached hereto the situation of the cesspool there is a public nuisance. It is therefore prayed that this learned Court be pleased to pass an interim order Under Section 144, Criminal P.C., restraining the non-applicants from proceeding with the construction and stopping them from passing filthy water to the said cesspool and further that the same order be made absolute after due inquiry.

(2.) THE Civil Surgeon's certificate which is attached to the application Was to the effect that a cesspool had been constructed close to the applicant's house and that it was in a filthy condition-He was shown the site where another cesspool was proposed to be dug and recorded his opinion that this too would be a nuisance. The Magistrate passed the preliminary order as follows: Whereas it appears from the complaint filed by Rambharose and also a certificate from the Civil Surgeon that the n.a., has construed a 'kacha' cesspool on the lane leading to the applicant's house and that this constitutes a nuisance on a public place and is likely to prejudicially affect the health of the residents of the locality and is further a serious obstruction, I hereby direct n.a. 1 to 5 to fill up the pit and the cesspool in two weeks' time or appear before me on 20th July 1933 and show cause why this conditional order should not be made absolute.

(3.) NOW it is clear that the application related only to the proposed cesspool. Rambharose did not make an application in respect of the cesspool which had been used and was being used at the corner of his house as the map on the record shows. This cesspool was in existence when the Civil Surgeon gave his certificate a month before the application was filed but the evidence shows that this has since been filled in and the application is entirely in respect of a proposed cesspool which the non-applicants were building with the consent of the Municipality. Section 133 of the Code does not permit the removal of a construction of this nature on the ground that it may prove a nuisance in the future. Preventive action in respect of an anticipated but non-existent nuisance is limited to the construction of any building or the disposal of any substance which is likely to occasion conflagration or explosion. Except for this before any unlawful obstruction or nuisance can be removed it is necessary that such unlawful obstruction or nuisance should be in existence. A covered cesspool such as was in process of construction is not an obstruction. When completed it may or may not be a nuisance, but it cannot be postulated either by common sense or by the conditions of he Code that it is going to be a public nuisance.