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Criminal Revision No. 390 of 1963, decided on 1st November 1968.
S. 133-‑Public nuisance ‑ Saw Mill installed in basement of residential building causing vibration in building and noise‑No damage or danger of falling of building proved by expert evidence‑Nuisance of vibration and noise affecting only the residents of building and a few neighbours‑Such nuisance, held, not "public nuisance".
Dwarika Prosad and others v. Dr. B. K. Roy Choudhury and others A I R 1950 Cal. 349 ; Ram Dayal Misra v. Mt. Jagdamba Debi and another A I R 1942 All. 443 ; Ramu alias Langar v. Murli Das A I R 1943 All. 19 ; B. S. Corbet and others v. Sonaulla Basunia A I R 1933 Cal. 150 ; Rameshwar Narayan Agarwal v. Emperor A I R 1939 Bom. 92 ; Abdul Kader v. The Chairman, Dacca Municipality P L D 1958 Dacca 425 and Murlidhar Bhila Patil v. Onkar Vyankat Patil A I R 1961 Bom. 263 fol.
The facts of this case are as follows : ‑
Sh. Abdul Majid, respondent, made an application on 7‑5‑62 to the Ilaqa Magistrate, Lahore, alleging therein that a three- storeyed building on Beadon Road, Lahore, had been transferred to him. There was a shop in the said building which was in his possession. There was a basement under the said building. This basement was in the possession of Inayat Ullah, petitioner. Inayat Ullah was running a Saw Mill in his portion. On account of the running of the Saw Mill the whole building used to vibrate. As a result the other persons in possession were facing great inconvenience. The application was, apart from the respondent, signed by a number of other persons as well.
2. Rana Mahmud Khan, Ilaqa Magistrate, recorded the statement of a few witnesses. On the basis of the evidence led it appeared to him that the working of the Saw Mill was physically discomforting to the community. Accordingly he issued a notice under section 133, Cr. P. C. to the petitioner.
3. The petitioner contested the application of the respondent. He denied that the entire building had been transferred to the respondent and explained that the latter had been allotted only one shop. He alleged that he had been running the Saw Mill for the last 10 years after taking the permission of the Director of Industries and the Lahore Municipal Committee. He denied that as a result of the running of the Saw Mill any danger was being caused to the building or that the building vibrated when the Mill was working. He further stated that before install ing the Saw Mill he had obtained a No‑objection Certificate from the other residents of the building. He charged that the applica tion was the result of enmity which had arisen between the respondent and Mst. Nawab Bibi who was a sharer in the Mill consequent upon same litigation between them in respect of the building.
4. The parties led evidence in support of their conten tions. The respondent on his part examined Syed Naqi Raza Chisti (P. W. 1) of Chisti Brothers, a firm of Architects and Engineers. Mr. Chisti stated that he had inspected the building on 13‑7‑62. There were two Saw Mills in the basement. The whole building vibrated when the Saw Mills were worked. As a result two roofs had already fallen and another roof was in a precarious condition. The building was built essentially for residential purpose and did not have enough strength to withstand the working of a Saw Mill. The fear was imminent that the whole building might collapse if the Mills were not stopped from working. Abdul Bari (P. W. 2) and Muhammad Hassan Shah (P. W. 3) are residents of the building. They also stated that as a result of the vibration caused the whole building was in the danger of collapsing. They further deposed that as a result of the running of the Saw Mills their peace and tranquillity had been disturbed. Abdul Majid also made a similar statement.
5. To refute the allegations of the respondent the petitioner examined Mr. Abdur Rahman Riazi, Civil Engineer of Illeri, a firm of Architects and Engineers. Mr. Niazi deposed that he had inspected the building on 28‑8‑62. The building was not in danger of any sort as a result of the working of the Saw Mills which were powered by a 3 H. P. motor. He admitted that there were a few dilapidated roofs in the building, but opined that the damage had been caused not as a result of the working of the Saw Mills, but due to lack of repairs. Riaz‑ur‑Rahman and Abdur Rahman R. Ws. deposed that they were the residents of the locality and had not suffered any discomfort on account of the running of the Saw Mills. Malik Inayat Ullah, petitioner, made a similar statement.
6. The learned Magistrate relied entirely upon the certificate given by Messrs Chisti Brothers and found that great noise and vibrations were produced as a result of the working of the machines. Two roofs had already fallen down and the third roof was in a dilapidated state and could collapse at any moment. In view of this technical evidence' the learned Magistrate came to the conclusion that the Saw Mills of the petitioner produced sound and vibrations which were injurious to the physical comfort of those persons who were living inside the building and around it besides, there was the apprehension of the building falling down any time and causing damage to the surroundings. On the basis of these findings the learned Magistrate issued a notice to the petitioner to remove his Saw Mills from the basement of the building within three months on the penalty of prosecution under section 188, P. P. C.
The proceedings are forwarded to the High Court on the following grounds :‑
Section 133 of the Criminal Procedure Code deals with public nuisance. The relevant clause under which the learned Magistrate has passed the impugned order runs as follows:‑
"That the conduct of any trade or occupation or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated."
The Magistrate can assume jurisdiction to pass the order under section 133, Cr. P. C. only when he comes to the positive conclusion that the conduct of the trade or occupation complained against is injurious to the health or physical comfort of the community. The word community' as occurring in the section requires some explanation. A Division Bench of the Calcutta High Court was dealing with the case of persons who were working an Ice Cream making machine during the night. The other residents of the premises where the machine was working moved forgetting it declared a nuisance on account of the noise emitted by it. The Magistrate passed an order under section 133, Cr. P. C. and stopped the working of the ice machine. Their Lordships vacated the order on the ground that it was only a private nuisance and made the following comments on the word community' :‑
"The word community' cannot be taken to mean residents of a particular house. Community means something wider than that. It means the public at large or the residents of the entire locality. If we look at section 268, Penal Code, we find the definition of public nuisance' as an act of illegal omission which causes any common injury, danger or nuisance to the public or to the people in general who dwell or occupy property in the vicinity. The words "public", "in general" and "vicinity" clearly indicate that there can be no public nuisance unless the general public of the locality is affected by the nuisance."
The case before me is not dissimilar from the one with which their Lordships were dealing. As already indicated the respondent has produced only two witnesses to complain against the working of the Saw Mill. Both these witnesses are residents of the same building where the Saw Mill is installed. There is no evidence on the record that apart from the respondent and these witnesses any one else has suffered any discomfort by the working of the Saw Mill. In fact it is an admitted position between the parties that the Saw Mill had been working for about 8 years before the respondent chose to move the Ilaqa Magistrate for taking action. There is nothing on the record to show that during this period any of the neighbours had made any complaint to any authority against the working of the Saw Mill. It is, therefore, clear that is a case, if at all, of private nuisance and the learned Magistrate's order is without jurisdiction, .as section 133, Cr. P. C., only deals with the cases of public nuisance. The learned Magistrate has also expressed the fear that the building may fall sometime and cause damage to the surrounding. This in itself a mootable point. The Expert produced by the respondent supports the finding of the learned Magistrate while the one produced by the petitioner consider such fears as baseless. The learned Magistrate has not given any reasons whatsoever why he has preferred the opinion of Mr. Chisti to that of Mr. Abdur Rahman Niazi. Be that as it may, still this fear will not bring the present case under the category of a public nuisance'.
It will thus be seen that the present case is one of a private nuisance, and, therefore, the learned Magistrate did not have the jurisdiction to make any order under section 133, Cr. P. C. As the order of the learned Magistrate is without jurisdiction, it is recommended that it may be set aside.
Sh. Abdul Manan for Petitioner.
Raja Abdur Razzaq for Respondent.
This order pertains to the order dated the 7th of March 1963, by the learned Additional Sessions Judge, Lahore, whereby he recommended that the order of Rana Mahmood Khan, Magistrate Section 30, Lahore, dated the 26th of December 1962, in case Abdul Majid v. Malik Inayat Ullah under section 133, Cr. P. C. is without jurisdiction and be set aside.
2. On the 18th of April 1962, Sh. Abdul Majid son of Haji Mazhar‑ud‑Din, Gali No. 7, Beadon Road, Lahore, applied to the District Magistrate, Lahore, complaining that the house, three- storeyed, bad been transferred to him by the Settlement Depart ment including a shop in the same building which he occupies, that a cellar in the building was occupied by Malik Inayat Ullah proprietor, Asian Electric Company, that Malik Inayat Ullah has installed a saw mill in the cellar, the operation of which is troublesome to the occupants of the building and the building vibrates during the operation of the saw mill. He prayed that they be relieved of this inconvenience. It may be noted that no provision of law under which the relief was claimed was quoted in this application. This application purported to have been signed by Abdul Majid, S. Arif Zaid, Abdul Bari, Muhammad Hayat, Abdul Aziz, Nazir Ahmad, Abdul Sattar, Mushtaq Hussain and Anwar Ilahi. The learned District Magistrate (Mr. Raza Ahmad Khan) vide his Memo. dated the 25th of April 1962, forwarded this application in original to Rana Mahmud Khan, Magistrate 1st Class, Lahore (Ilaqa Magistrate) for necessary action under section 133, Cr. P. C., in case the information given was found to be correct after usual inquiries. The Magistrate entertained the application under section 133, Cr. P. C. By way of preliminary inquiry he recorded the statements of Sh. Abdul Majid, applicant, Anwar Ilahi (as the signatory of the application) Bashir Ahmad and Abdul Aziz (other signatories of the applica tion). After taking this evidence the Magistrate made this conditional order :‑
"From the evidence produced it appears that the working of machine is causing physical discomfort to the community. A notice under section 133, Cr. P. C. be issued to the respondent for 26‑6‑62."
3. In obedience to this notice, respondent Malik Inayat Ullah appeared and in order to show cause against this order, submitted his written statement dated the 4th of July, 1962.
4. The Magistrate recorded the evidence of Syed Naqi Raza Chishti (P. W. 1), Civil Engineer and Architect, in support of his certificate (Exh. P. A.), Abdul Bari (P. W. 2), and Syed Muhammad Hassan Shah (P. W. 3). The applicant, Sh. Abdul Majid, was cross‑examined at length, in continuance of his preliminary statement dated the 28th of May 1952. The respon dent produced Abdur Rahman Niazi, Civil Engineer, in support of his certificate (Exh. D. A.), Riaz‑ur‑Rehman (R. W. 2). Abdul Aziz (R. W. 3) and Inayat‑Ullah also appeared himself as R. W. 4.
5. The Magistrate, after completion of the inquiry, made the order dated the 15th of June 1962 absolute and gave a notice to the respondent to remove the machinery from the basement of the building within a period of three months from that date or he shall be liable, if in default to a penalty prescribed in that behalf under section 188, P. P. C. The Magistrate, discussing the evidence of the parties, observed :‑
"The applicant has produced certificate Exh. P. A. of Chishti Brothers who are Architect Engineers, Surveyors with their Head Office in 71‑Naqi Building, The Mall Lahore and Branch Office in Dacca."
Quoting the certificate verbatim, the Magistrate further observed :‑
"This shows that according to the Expert opinion of Engineers, the working of machinery produce great noise and cause much vibration. Even there is a certificate that two roofs have already fallen down as a result of this. The roof of the second floor is also in a very dilapidated condition and may fall off at any time. He has further stated that he had thoroughly examined, the structure of this building and certify that the building is for purely residential purposes and cannot stand the vibrational effects of machinery fixed up by Sh. Inayat Ullah in the basement. I cannot ignore this technical evidence in any case. So it is clear that the occupation of Malik Inayat Ullah with the kind of machinery which causes sound and vibration is injurious to the physical comfort of those persons who are living inside the building and around. The building may fall some time and cause damage to the surroundings. The respondent appeared before me and he had not been able to give a satisfactory reply."
A perusal of the record would prove that the order of the Magistrate is arbitrary and devoid of logical conclusions. He has not at all considered the evidence of the witnesses produced by the respondent and the certificate (Exh. D. A.) supported by Abdur Rahman Niazi (R. W. 1). This certificate Exh. D. A. is based on a careful inspection of the building by this engineer and he has given the required technical data. The report (Exh. P. A.) is of a general character and is not based on any technical observations.
6. Malik Inayat Ullah challenged this order dated the 26th of December 1962 of the Magistrate in revision before Mr. Saad Saood Jan, Additional Sessions Judge, Lahore, who, after hearing the parties, came to the conclusion that the nuisance, if any, complained of by Sh. Abdul Majid, applicant, is not a public nuisance, but a private nuisance and further that the fear expressed by the Magistrate, relying on the expert evidence of Mr. Chisti, that "the building may fall sometime and cause damage to the surroundings" will not bring the case in the cate gory of public nuisance.
7. I have heard the learned counsel for the parties at length. Learned counsel of Inayat Ullah supported the order of the Additional Sessions Judge. He argued that the evidence produced by Abdul Majid applicant consisted of his own statement and besides Syed Naqi Raza Chisti, Engineer, he produced Abdul Bari and Syed Muhammad Hassan Shah, who were occupants of the same building and that no other witness of the locality was produced to support the plea of public nuisance. He further argued that the respondent, Malik Inayat Ullah, besides himself appearing as witness, and Abdur Rehman Niazi, produced Riaz‑ur‑Rehman and Abdul Aziz, who are residents of the locality and who supported the plea of the respondent that no public nuisance was caused to the locality. The learned counsel relied on Dwarika Prosad and others v. Dr. B. K. Roy Choudhury and others (A I R 1950 Cal. 349) wherein it was held that:‑
"The word community' cannot be to mean residents of a particular house. Community' means something wider than that. It means the public at large or the residents of an entire locality.
Where the finding was that the noise of the ice cream making machinery constituted a nuisance to the residents of the building whose flats were adjacent to the place where the machine was running.
Held, that this was not a finding that a public nuisance existed and consequently, section 133 had no application.
In Ram Dayal Misra v. Mt. Jagdamba Debi and another (A I R 1942 All. 443) it was held:
"The proceedings under section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. If a person has any private right which he wishes to enforce he should take his troubles to the civil Courts."
In Ramu alias Langar v. Murli Das (A I R 1943 All. 19) Allsop, J. observed as follows:‑
"Criminal cases and cases under the Criminal Procedure Code are not contests between private persons. The proceed ings under section 133 are not intended to settle private dispute between two members of the public. They are originated by the filing of complaint or something of that kind. Any person can give a Magistrate information of the existence of any state of affairs, but when the Magistrate acts on that information, he is acting suo motu. The informant has no rights in the proceedings under section 133 and is not a party thereto; if he wishes to obtain any redress in his personal capacity he can go to a civil Court. If the Magistrate issues a preliminary order under section 133 for the removal of an obstruction the question which arises is one between the Magistrate on the one side on behalf of the public at large and the person, on the other, to whom notice has been issued."
In B. S. Corbet and others v. Sonaulla Basunia (A I R 1933 Cal. 150) it was observed by Malik and Remfry, JJ. :‑
"A proceeding under section 133 was started against a person on the ground that he by raising the level of his low land caused an overflow of surplus rain water into other lands:
Held, that section 133 did not apply and the persons damnified by the tortuous act may have their remedy by civil suits."
In Rameshwar Narayan Agarival v. Emperor (A I R 1939 Bom. 92) it was held:‑
"Where a flour‑mill causes inconvenience to two neighbours who alone report of a nuisance and there is no evidence whatever to suggest that any similar nuisance or inconvenience is caused to anybody else, the working of the engine does not amount to public nuisance and any damage or inconvenience caused to the premises of the two neighbours must be regarded as private nuisance, and does not justify an order under section 137."
In Abdul Kader v. The Chairman, Dacca Municipality (P L D 1958 Dacca 425) at page 426 it was held:‑
"The annoyance of a few residents of a single house is not sufficient to constitute a public nuisance as contemplated by section 290 of the Penal Code. It is not sufficient proof under that section to say that the complainant and a few of his tenants represent the people in general who occupy property in the vacinity, there being no other people dwelling within unpleasant range."
In Murlidhar Bhila Fatil v. Onkar Vyankat Patil (A I R 1961 Bom. 263) it was observed :‑
"An order under section 133 can be justified only if the conduct of the trade is injurious to the health or physical comfort of the community. The conduct of the trade must be injurious in presenti. A distant possibility of an injury to the health or physical comfort of the community would not justify an order under this section. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or the occupation is conducted."
8. Agreeing with the authorities referred to above, the order of Rana Mahmud Khan, Magistrate Section 30, Lahore, dated the 26th of December 1962, in my opinion, merits setting aside. I, therefore, accept the recommendation of the learned Additional Sessions Judge, Lahore, dated the 7th of March 1963 and set aside the order of the Magistrate making his order dated 15‑6‑62 absolute.
Reference accepted.
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