Crl.M.No. M-29578/2010(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.M.No. M-29578/2010(O&M) Date of decision: 11.10.2010. Des Raj ....................Petitioner v. State of Haryana and others .....................Respondents Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr.PS KangAdvocate for the petitioner. Jaswant Singh.J.(Oral) Prayer under Section 482 Cr.PC is for quashing order dated 12.3.2010 passed by Sub Divisional Magistrate,Ambala dismissing the petition under Section 133 Cr.PC filed by the petitioner. Briefly noticed, the petitioner filed an application before SDM Ambala against the running of an Atta Chakki by respondents 2 to 4 in their house. The said application was dismissed by SDM vide order dated 31.7.2006 and the revision preferred by the petitioner against the said order was dismissed by learned Additional Distt.Judge, Ambala vide order dated 16.1.2007. Feeling aggrieved against the aforesaid orders, the petitioner filed Crl.M.No.42457-M of 2007 which was disposed of by this Court vide order dated 21.8.2008 remanding the matter back to the SDM for deciding afresh keeping in view the Crl.M.No. M-29578/2010(O&M) 2 cited law and the report submitted by BDPO. The SDM was also given liberty to call for a fresh report of evidence. In compliance with the directions of this Court, the SDM, Ambala sought a fresh report from BDPO,Saha on the following points:- “1.Location of both the houses. 2. Point where the Chakki is established 3. Distance between the Chakki point and the house of the petitioner. 4. Effect being caused by running of said Chakki. 5. Damages/cracks, if any, have been caused by the running of the said Chakki by the respondents.” In compliance with the orders of the SDM,Ambala, BDPO Saha submitted point-wise report. The learned SDM Ambala after considering the said report and hearing both sides dismissed the petition under Section 133 filed by the petitioner. It is submitted by the learned counsel for the petitioner that the impugned order has been passed without considering the evidence on record. It is further submitted that earlier the petition was dismissed on the basis of a police report which was one sided, as the petitioner was not associated due to political pressure. After hearing the learned counsel and going through the impugned order, I find no merit in the present petition which is liable to Crl.M.No. M-29578/2010(O&M) 3 be dismissed. The learned SDM Ambala while dismissing the petition has taken into consideration the report submitted by BDPO Saha, which is as under:- “1. It is reported that the house of Sh.Desh Raj is situated at Khasra No.174 and house/Chakki of Sh.Dayal Singh is situated in Khasra No.173 of Village Dhurala. Both the houses are adjoining to each other. They are situated on link road to Bhita and railway track is about 60m away from both the houses. 2. It is reported that the Chakki is in Khasra no.173 and is installed in front of plot. It is about 12 feet away from the house of Desh Raj. 3. It is about 12 feet. 4. On 16.1.2009, the inspection of the site was conducted. Sh.Dayal Singh was asked to run the chakki during inspection. It was found that there was not much noise pollution and vibration effect in the house of Des Raj. However, during inspection the train was running on the track nearby and it was felt that noise and vibration of train was more compared to atta chakki. The Crl.M.No. M-29578/2010(O&M) 4 construction of Des Raj is fully Pucca and building of Chakki is also pucca construction. If there have been heavy vibration due to Chakki, it will be in the building of Chakki first, but there was no such crack in the building of Chakki. Though the reason of crack in the house of Des Raj is that before construction of building earth filling in the land was done and the house was constructed without its proper compaction (Panchayat resolution no.3 dated 19.1.2009) due to which cracks has developed in building. Even if the Chakki stopped, the vibration of railways can not be avoided. (emphasis supplied). 5. Damage/cracks, if any house is caused by running of said Chakki by the respondent explained above.” It was also noticed by the learned SDM that none of the parties had furnished any additional evidence in support of their pleadings. It has also been noticed by the SDM that the chakki operates only when there is power supply as no generator has been installed by respondents-owners of atta chakki. It has further been noticed that there exists a railway track near the house of the petitioner and if there is no nuisance because of existence of railway track then the existence of atta Crl.M.No. M-29578/2010(O&M) 5 chakki cannot be said to be creating nuisance and had there been cracks due to the operation of the atta chakki, then it would be in the respondents' house first than in the petitioner's house. For the reasons stated above,finding no merit in this petition the same is hereby dismissed. 11.10.2010 (Jaswant Singh) joshi Judge