IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No.785 of 2008 (U/s 482 Cr.P.C.) M/s Shravan Kumar & Sons ………. Applicant Versus State of Uttarakhand & another ..…. Respondents Mr. Manish Arora, Advocate for the applicant Mr. Hari Om Bhakuni, Brief Holder for the State/respondent no.1 Mr. Mohd. Azim, Advocate holding brief of Mr. Gopal Krishan, Advocate for respondent no.2 Dated: August 5, 2011 Hon’ble Servesh Kumar Gupta, J. By way of this criminal miscellaneous application, the challenge is to the order passed by the S.D.M. Ramnagar dated 9.10.2007, which was confirmed by the revisional court vide its order dated 24.11.2008, while hearing the criminal revision no.44 of 2007. Having heard the learned counsel for the applicant as well as the private respondent, nay the learned brief holder, it appears that Sri Shravan Kumar-applicant runs his shop/ business in the town of Ramnagar at the Ranikhet road under the name and style of M/s Shravan Kumar and sons. The business of vending various items of construction work including the cement bags is carried on through that shop. The residents of surrounding vicinity, all feeling aggrieved by the nuisance which was being caused through loading and unloading of the cement bags, made an application on dated 22.1.2007 to the District Magistrate, Nainital u/s 133 Cr.P.C. invoking his powers to remove this nuisance. Needless to say that this loading and unloading of the cement bags in the shop 2 give rise to the cement particles flying in the air which was causing the air pollution in the surrounding areas, making it difficult for the people of that vicinity even to breath the natural and fresh air. The Collector, Nainital forwarded that complaint to the S.D.M. and through all the hierarchy of the administration including Lekhpal, Naib Tehsildar, Tehsildar to the level of S.D.M., The charges which were stated in the complaint were found to have force, so, the SDM of Ramnagar issued a notice u/s 133 Cr.P.C. asking Sri Shravan Kumar to appear on 26.7.2007 and to show cause against this obstruction which was being caused through his cement bags. Sri Shravan Kumar filed the objections on dated 26.7.2007. Learned Magistrate enquired the matter and gave opportunity to Shravan Kumar. Shravan Kumar produced his few neighbours, named Sanjay Agarwal, Gopal Chand Agarwal, Hari Sharan Mittal, Arun Kumar and Harish Sharma in his support, who stated in writing before the Magistrate that due to the above business complained of, they are not feeling any nuisance. Besides Sri Shravan Kumar has shifted his cement loading and unloading business from Ranikhet road to his go- down situated somewhere else, only the shop complained of, is being used as a retail outlet of the cement. One of the witnesses Sri Hari Sharan, who deposed in favour of Shravan Kumar before the Magistrate concerned, was also an applicant, who put his signature on the complaint dated 22.1.2007. Sub-Divisional Magistrate himself made the spot inspection on dated 20.9.2007 and made up the view that the allegations in the complaint were true, so he made the notice absolute on dated 9.10.2007 asking Sri Shravan Kumar to remove his cement business from the shop concerned. Feeling aggrieved, Sri Shravan Kumar moved a revision to the court of Sessions Judge, Nainital wherein after hearing both the parties, the order issued by learned S.D.M. was 3 confirmed on dated 24.11.2008. Hence this petition has been moved u/s 482 Cr.P.C. Learned counsel of the petitioner has relied upon the following precedents: - 1. Ram Dular Vs. State of U.P. and others reported in 1980 All. L.J. 570 2. Brij Kishore Rai Vs. State of U.P. & others reported in 2002 (3) ACrR 2231 3. Mujibur Rehman Vs. State of U.P. & another reported in 2007 (2) ACR 2166 Having gone through all these above precedents, this Court is of the view that any of the precedents, as have been relied, are not applicable to the instant case. Firstly, the learned Sessions Judge has given elaborate judgment quoting the first precedent of Ram Dular’s case. It was held that the Magistrate has no power to make local inspection himself and the decision passed on the basis of that local inspection is bad in law. Learned revisional court has distinguished this judgment of the Single Judge of the Allahabad High Court on the basis that besides the local inspection, the Magistrate conducted due enquiry by sending the Lekhpal, Naib Tehsildar and Tehsildar on the spot and calling their report about the exact situation of the spot. After taking stock of the situation himself in addition to the above reports and enquiry conducted thereafter, the learned S.D.M. has made the notice absolute. The other precedent of Brij Kishore Rai’s case is also not applicable for the reason that in that case, public nuisance was not being caused on the public pathway while in the instant case, the public nuisance is being caused on the 4 Ranikhet road in the main market, surrounded by so many habitants, either dwelling or running their own business. The third precedent of Yogeshwar Prasad’s case is also not applicable because in that case, the dispute was of a private nature between the two parties and not of a public nature. It has been argued on behalf of the petitioner that in 1983 some notice was given to him by Sri Kuldeep Kumar Sharma, who is one of the applicants who moved the application against the petitioner. This by itself cannot be attributed to be the sole ground for initiation of the proceedings u/s 133 Cr.P.C. on the application of Kuldeep Sharma. There were so many other grounds also. That apart, the government hierarchy right from the Lekhpal to the SDM, all have submitted their opinion that this petitioner is causing nuisance by the cement loading and unloading business in the area which is a subject matter of great trouble to all the people residing or carrying their business in the vicinity. In the opinion of this Court also, such a nuisance business cannot be allowed to be sustained henceforth. In the above circumstances, this petition has no force which is liable to be dismissed. The orders passed by the S.D.M., confirmed by the revisional court are maintained. This Court feels that already there has been much delay in removing the said nuisance from the spot due to the dragging of the controversy in the courts at different levels, so in exercise of powers u/s 482 Cr.P.C., this Court directs that S.D.M. will take steps to remove the said nuisance of cement loading/unloading as well as selling the same from the shop in question at the spot without any further delay. (Servesh Kumar Gupta, J.) 05.08.2011 Rajeev Dang