IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc.42457-M of 2007 DATE OF DECISION : AUGUST 21, 2008 DES RAJ ....... PETITIONER(S) VERSUS STATE OF HARYANA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. PS Kang, Advocate, for the petitioner(s). Mr. Narender Sura, AAG, Haryana. Mr. Rakesh Sinhal, Advocate, for respondents 2 to 4. AJAI LAMBA, J. (Oral) Learned counsel for the petitioner has pointed out that it was at the instance of the petitioner that the proceedings under Section 133, Code of Criminal Procedure, were initiated. The contention of the learned counsel for the petitioner is that when impugned order dated 31.7.2006 (Annexure P-3) was passed, the report of the BDPO, Saha (Annexure P-1), was not even considered although the BDPO was asked to inspect the spot. A reference has been made only to the report obtained from SHO, Police Station, Mulana. In challenge to the order (Annexure P-3), the petitioner had preferred a revision petition which, however, was dismissed vide order Criminal Misc.42457-M of 2007 2 dated 16.1.2007 (Annexure P-4) and the order (Annexure P-3) has been endorsed. I have considered the issue involved. The report of the BDPO (Annexure P-1) reads as under:- “As per the orders of your Court vide no. Nil, dated 1.8.05, the undersigned inspected the spot on 5.8.2005. It was found that Ramesh Kumar, Suresh Kumar ss/o Sh. Dayal Singh have installed Eicher Tractor Engine for running Atta Chakki, machine for extracting oil and rice which is at a distance of 10-11 feet from the house of the applicant Des Raj son of Bakshi Ram. When the respondents start the engine, then the applicant suffers inconvenience due to its noise and pollution. With the trembling of the Engine, the house of the applicant has developed cracks, due to which the house has suffered huge damage. The report is submitted for your kind information and appropriate necessary action.” I find that when show-cause notice was issued by the SDM, Ambala, reliance was placed on the report of the BDPO. However, while dealing with the issue finally, in the operative part of the order, a reference has been made only to the report received from the SHO, Police Station, Mulana. The findings recorded in the last para of order (Annexure P-3) are contrary to the report submitted by the BDPO. Another aspect that needs to be noticed is that the SDM has taken into account the fact that only the house of the petitioner is in the vicinity and, therefore, the case does not come within the purview of public nuisance. Learned counsel for the petitioner has placed reliance on the judgments in Somnath v. Poi, Dhungat, 1974 Crl.L.J. 522 and Vayalele Criminal Misc.42457-M of 2007 3 Veettil Balakrishna Nambiar v. R. Madhavan Nambiar, 1986 Crl.L.J. 109. In the cited judgments, it has been held that danger or nuisance to general public is not necessary. Possibility of danger to any person or persons is enough to justify removal of the nuisance. Having regard to the above, the petition is allowed and orders (Annexures P-3 and P-4) are set aside. The matter is remanded back to the SDM, Ambala, to enable him to consider the law as cited as also the report submitted by the BDPO (Annexure P-1), Before taking a decision afresh, the SDM would be at liberty to call for a fresh report or evidence. The parties to appear before the SDM, Ambala, on 8.9.2008. August 21, 2008 ( AJAI LAMBA ) Kang JUDGE