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Criminal Revision Application No. 109 and Criminal Reference No. 28 of 1975, decided on 25th August 1976.

S. 133-Object of-Section 133 aims to enable a Magistrate to make speedy order where public nuisance is being committed Criminal proceedings no bar to Magistrate acting under Chapter X of Cr. P. C.-Respondents using footpath and public road for cooking food on large scale over open wooden fires in large degs making it uncomfortable for residents of locality to live in their houses and endangering their health and physical comfort Magistrate however, after issuing notices dropping proceedings merely on ground of hardship for families of respondents and further that a civil suit on same facts was also pending in Court Order set aside, in circumstances and respondents directed to stop business of cooking openly on road and footpath and further to regulate their business inside their shops in proper manner.-[Public nuisance].

Asanand and others v. Hussain Bakhsh and others (1868) P R 36 (Cr.)-rel.

Zahoorul Haq for Applicant.

Tauqir Ahmed Jilani (absent) for Respondents Nos. 1-8.

Nooruddin Sarki for the State.

Date of hearing: 10th August 1976.

This is a reference by the IIIrd Additional Sessions Judge, Karachi, recommending that the order of the Deputy Commissioner & S. D. M., South, Karachi, disposing of the proceeding started under section 133, Cr. P. C. for abatement of public nuisance, may be set aside and respondents 1 to 9 may be ordered to stop the business of cooking food on the road side.

2. An application was submitted to District Magistrate, Karachi by applicant Nooruddin as General Secretary, Mohallah Committee, Aslam Road, Karachi on behalf of himself and the residents of that locality of Ranchhore Line, Karachi stating that respondents 1 to 9 were carrying on the business of cooking food in front of the cooking shop on Aslam Road and they were using the foot-path and the road for cooking huge degs on wood fire, thus creating noxious atmosphere by unhygienic smells, smoke etc., endangering the health of the residents and making it uncomfortable for them to live in the house situated on Aslam Road. The case was transferred to S. D. M., Old Town who issued notices under section 133, Cr. P. C. The respondents filed their written statements. Three prosecution witnesses, were examined who all supported the above facts with regard to the public nuisance. The version of the respondents was that they were carrying on their trade of cooking inside their shop and they were neither using the road nor footpaths for cooking; they were also not throwing any refuse or dirty water in the street. The learned Deputy Commissioner and S. D. M. inspected the site and found marks of cooking on the footpath and roadside. He, however, dismissed the case on - the consideration that if the 9 respondents are stopped from carrying on their business their families would starve and also that a suit filed by the applicant Nooruddin against the respondents for removal of public nuisance was pending in the Court of V Civil Judge, Ist Class, Karachi and, therefore, no order could be passed under section 133, Cr. P. C.

3. It has thus been established on evidence that the footpath and public road were being used by 9 respondents for cooking food on large scale over open wooden fires in huge degs making it uncomfortable for the resi dents of the locality to live in the houses and flats situated on Aslam Road and endangering their health and physical comfort. The case, therefore, does fall within the purview of public nuisance as laid down under section 133, Cr. P. C. The section covers conduct of any trade or occupation injurious to the health or physical comfort of the community carried in, on the public road or foot-pavement reserved for lawful use by the public. The District Magistrate or an S. D: M. is authorised, under those circumstances, to make an order directing such persons to desist from carrying such trade or occupation or to otherwise so regulate the carrying on of their business so as to remove the nuisance.

4. It is true that if no sufficient cause is shown the preliminary order already issued had to be made absolute under section 136, Cr. P. C. Only when the Magistrate was satisfied that the preliminary order was not reason able and proper that he could drop the proceeding and discharges the order. The order could not be capricious or arbitrary but the order should give valid reasons for the decision. The proceedings could not be dropped merely on the ground that stopping of the nuisance would create hardship for the families of the respondents as they would be deprived of the income or because a civil suit was pending between the parties and the criminal proceedings were not, therefore, maintainable. The object of section 133, Cr. P. C. is to enable the magistrate to make speedy orders where a public nuisance appears to have been committed. Civil proceedings are no bar to the magistrate acting under Chapter X of Cr. P. C. The civil Court could then consider the final orders.

5. The earliest case pertaining to running of cooking business on the roadside is reported in Asanand and others v. Hussain Bakhsh and others ((1868) 50 P R 36). Boulnois and Simson, JJ heard this case. on revision side in the Chief Court at Lahore. The facts of that case were that certain Hindus of Multan City had charged certain Muhammadans with nuisance in that they had opened a cooking shop and carried on their business in a manner calculated to give annoyance. It was alleged that the accused had opened a shop in front of their houses in which they cooked and sold cooked meat and beaf and they exhibited beaf, burnt goats' hair that caused annoyance to the Hindu resi dents who had been compelled to leave that neighbourhood. The Magistrate ordered the shop to be closed pending reference to a committee of respectable Hindus and Muhammadans. The Deputy Commissioner of Multan, however, discharged the accused of offence under section 290, P. P. C. but passed orders under section 62, Cr. P. C. directing the accused to conform to the rules. The matter came up to the Chief Court and it was observed that the cooking of beef under certain circumstances in certain places may by itself be a nuisance or the manner in which the shop is conducted may also creat the nuisance. Again, although the shop may not be a nuisance itself some acts done may cause nuisance to others. Such acts could be ordered to be stopped though it might not be necessary for ordering the shop to be closed.

6. In the present case it is not known whether the Municipal Committee has granted any licence to the persons to carry on this particular trade of cooking food in the said shops on Aslam Road. The carrying on of this business inside the shops is a matter within the control of the Municipal Committee of Karachi. The District Magistrate could not ask the Municipal Committee to stop that trade being carried on in the city or to cancel the licence if it had been issued to the respondents. It was, however, open to the District Magistrate to pass orders regulating the carrying on of this business in a manner so as not to create any nuisance or discomfort, while at the same time allowing the respondents to carry on their business in a proper and lawful manner. The use of foot-pavement or public road for cooking of degs of food on open fire is certainly an act, which could be, regarded a public nuisance. Respondents have already stated in their defence that they are carrying on the cooking inside their shops and not on the road or the public footpaths the evidence was, however, to the contrary. They have accordingly directed not to carry on the business of cooking, openly on the road or footpaths A so as to cause nuisance to the respondents of that locality but instead to carry the business in a proper manner by installing gas cookers inside the shops and by having the necessary machinery for disposing of the refuse and dirty water etc. instead of throwing the same in the street. The respondents have thus been ordered to regulate the carrying on of their business of cook ing by employing modern methods used in civilised countries, and not to do this business in a primitive manner by spreading dirt and refuse in front of those shops and creating smoke and bad-smells injurious to the- health of the residents of that locality.

7. This order will be served through the District Magistrate (South), Karachi, on the respondents and the order has to be executed in the manner laid down so that there is no repetition or continuance of this public nuisance. While at the same time the respondents are allowed to carry on their trade inside their shops by employing clean and hygienic methods of cooking.

8. The reference and revision application are disposed of in terms of the above order.

Revision allowed.

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