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Constitutional Petition No. D‑358 of 1985, decided on 27th May, 1985.

‑‑S.133 Public nuisance Complaint against Final order of Magistrate‑‑‑ Legality of‑‑Sub‑Divisional Magistrate, empowered to take cognizance of case of public nuisance under 5.133 Criminal Procedure Code, 1898, duly enquired into matter, recorded evidence and after giving every opportunity to rebut allegations against petitioner, passed final order against petitioner to remove nuisance without passing conditional order‑‑No prejudice, having been caused to petitioner, final order of Magistrate against petitioner, held, was legal and within jurisdiction as passing of conditional order in each case was not necessary.

P L D 1974 S C 139 ref.

S. Ziaul Hassan for Petitioner.

‑ On 21‑8‑1984 the respondent 3 to 8 filed a complaint against the petitioner alleging therein that there existed a Power Loom Factory in Street No.31‑B‑Block Shershah Colony, Karachi. It was further stated that the petitioner had further erected other sheds for installation of powerloom factory and as the factory already existing in Street No.31 has been a source of nuisance for them and as such the new establishment of another pbwerloom factory in the newly constructed shed may be ordered to be stoped. The District Magistrate to whom the complaint was addressed forwarded the same to the A . C . and S . D . M . Nazimabad for action in the matter. The respondent No.1 recorded the evidence and then issued a notice to the petitioner. The statement of the petitioner was also recorded. On 1‑11‑1984 the learned S. D.M. passed an order directing the petitioner not to install the powerloom in the new shed as it will create great nuisance to the Mohallah people.

2. The petitioner challenged the order passed by the respondent No.1 in Criminal Revision in the Court of Sessions which was disposed of by an Additional District Judge, and the revision petition was dismissed, hence, the present petition.

3. Learned counsel for the petitioner has stated that the learned District Magistrate could not transfer the complaint to the S.D.M without passing a conditional order under S.133, Cr.P. C. In the same context it is contended that the learned Magistrate erred in law in disposing of the petition by making a final order. This contention has no force. The District Magistrate has the authority to transfer the complaint. As regards the passing of the conditional order, it is not necessary that in each case a conditional order should be passed. In the present case the complainant had alleged that the petitioner had installed a powerloom which created nuisance and the construction of the sheds for the purpose of additional powerloom would create more nuisance to them. The learned Additional District Judge has considered each aspect of the case and he has rightly pointed out that section 133, Cr.P. C. covers the nuisance in this case. As the petitioner erpeted the sheds and the building for installing powerlooms; the process has been started and this is a case of intended nuisance and is covered by section 133, Cr.P.C.

We entirely agree with the observations of the learned Additional District Judge.

4. The next contention of the learned counsel that without passing a conditional order, final order cannot be passed is equally without any substance. The enquiry was. conducted by the learned Magistrate and the evidence was recorded. The petitioner was given every, opportunity to rebut the allegation against him and thereafter, the impugned order was passed. No prejudice was caused the petitioner.

The Courts below had the jurisdiction in the matter. It is now well‑settled principle of law that an authority having the jurisdiction may decide it rightly or wrongly as has been approved in P L D 1974 S C 139.

We, therefore, see no force in this petition and the same is consequently dismissed.

H.B.T. Petition dismissed.

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