1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 46 OF 2008 State, Rep. by Urban Health Officer, Urban Health Centre, Mapusa Goa. ... Applicant versus 1. Shri Jose Caesar D'Souza, wrongly mentioned as G.F.C.D'Souza, S/o late Anthony Sebastian D'Souza, aged 77 years, r/o Flat No.G-1, Laxmi Apartments, Feira-Alto, Mapusa, Bardez Goa. 2. Shri Javed Khatib, s/o Mohammad Khatib, aged 34 years, r/o Flat No.F-1, Laximi Apartment, Feira-Alta, Mapusa, Bardez Goa. 3. Shri Girish Balkrishna Shirodkar, s/o late Balkrishna Shirodkar, Aged 50 years, r/o Flat No.T-3, Laximi Apartment, Feira-Alta, Mapusa, Bardez Goa. ... Respondents Mr. C. A. Ferreira, Public Prosecutor for the Applicant. Mr. S. Y. Thaly, Advocate for the Respondents. 2 CORAM : N. A. BRITTO, J. DATE : 11TH AUGUST, 2008. ORAL JUDGMENT Heard learned Public Prosecutor on behalf of the Applicant and learned Counsel on behalf of the Respondents. 2. Admit. By consent heard forthwith. 3. Challenge in this petition, filed under Section 397(2) of the Code of Criminal Procedure, 1973(Code, for short) is to the Order dated 11-5-2007 of the learned Additional Sessions Judge, Panaji by which the learned Additional Sessions Judge has quashed the proceedings initiated under Section 133 of the said Code at the instance of the Urban Health Officer, Mapusa, inter alia, on the ground that the learned S.D.M. could not have taken cognizance as the jurisdiction to take action was entrusted to the Health Officer under the provision of Section 40 of the Goa, Daman and Diu Public Health Act, 1985. 4. Mr. C. A. Ferreira, learned Public Prosecutor appearing on behalf of the Applicant/State submits that parallel proceedings for abatement of public nuisance could have been taken by the Health Officer as well as the S.D.M. and there is nothing in the Goa, Daman and Diu Public Health Act, 1985 to suggest 3 that because the powers have been given to the Health Officer the jurisdiction of the S.D.M. has been taken away. 5. Learned Counsel on behalf of the Respondents does not dispute the proposition of law as advanced by the learned Public Prosecutor, but contends that so-called nuisance has already been abated as can be seen from letter dated 23-11-2006. 6. Be that as it may, it appears that one Mahableshwar M. Raicar brought to the notice of the Health Officer that a septic tank/soap pit of their apartment was overflowing and sewage released accumulated near his house, giving foul smell, and creating a breeding place for mosquitoes. The Health Officer instead of taking action by himself, sent a report to the S.D.M, Mapusa, who issued a conditional order and preliminary objection taken, the same came to be dismissed. 7. The learned Sessions Judge found that the complaint was of a public nuisance. In fact the learned Sessions Judge observed that:- “The notice issued to the applicants clearly demonstrates that said foul smell creating breeding place and nuisance in the area i.e. place where applicants and the informant are staying. Section 133 of Cr. P. C. neither specifies the minimum number of persons that should be living or carrying on business in the 4 neighbourhood or passing by nor does it speak of families but only of persons. For purpose of section 133, persons includes a single family or a sale occupant of a house. The authority in the case of Somnath V. Poi Dhungat v. State and another(1974 Cri.L.J. 522) is quite apt in this regard. It is also held in the case of Jayakrishna Panigrahi and others v. Hrusikesh Panda(1992 Cri.L.J. 1056) while dealing with section 133 of Cr. P. C. of leaning of trees towards roof of neighbour that application even by neighbour for removal of such nuisance is maintainable even though no danger is apprehended to members of public at large. It is further held therein that leaning of trees towards the roof of the neighbour or dilapidated house abutting the neighbour's house or the passers by then certainly the neighbour can bring an action before the Magistrate under section 133(1)(d) and the Magistrate would be fully within his jurisdiction to entertain the application and pass appropriate orders for removal of the nuisance in question. The same is applicable in the present case of creating breeding place for mosquitoes and nuisance in area affecting public at large. Hence, the alleged act/complaint by said Mahableshwar Raikar squarely falls within the purview of section 133 of Cr. P. C.” 8. Section 133 of the Code deals with removal of public nuisances and, inter alia, provides that when a Magistrate referred to in sub-section(1) thereof, on receiving a report from a police officer or other information and on taking such 5 evidence(if any) as he thinks fit, considers that any nuisance should be removed from any public place or from any way, river or channel which is or lawfully used by the public, he may make a conditional order requiring such person causing such nuisance to remove such nuisance or, if he objects to do so, to appear before him at a time and place to be fixed and show cause, why the order should not be made absolute. 9. The Goa Public Health Act, 1985 as amended in 2001 has also made stringent provisions for removal of nuisance, not only by entrusting powers to remove them to the Health Officers but also by local authorities. Section 37 of the Act refers to nuisances in addition to those defined by Section 2(22). Section 39 provides that any person aggrieved may give information to the Health Officer or the Officer of local authority. Section 40 deals with the powers of Health Officer and the procedure required to be followed by him. In fact, it provides that in case the Health Officer is satisfied of the existence of a nuisance, he is duty bound to issue a notice. Sub-Section(5) provides for steps to be taken by himself to abate the nuisance with further provision to recover the expenses incurred as arrears of land revenue. Sub-Section(4A) provides for fine in certain case. Sub-Section(6) provides that the failure to comply directions would be a cognizable offence punishable with simple imprisonment which may extend to 30 days or fine. The offence can also be compounded. 6 10. The provisions of sub-sections(2), (3) and (8) are far more important. Sub-Section(2) provides that the Officer in charge of Police Station shall be duty bound to provide police protection, when called upon by the Health Officer, for removal of such nuisance, and sub-section (8) provides for punishment to the Health Officer in case he fails to take action intentionally or deliberately. It appears prima facie that the Health Officer abdicated his powers and duties in favour of the S.D.M, and thus has invited an action for prosecution under Section 40(8) of the Act. 11. The language of sub-section(3) of Section 40 is clear. A bare reading shows that the provision of Section 40 of the Act is in addition to any other provision contained in any other law as long as such law is not inconsistent with Section 40 of the Act. Section 133 of the Code as well as Section 40 of the Act deal with removal of public nuisances. The scope of Section 40 of the Act is much wider. There is nothing inconsistent between the said two provisions. The learned Sessions Judge was therefore not right in holding that the learned S.D.M. had wrongly assumed jurisdiction vested in the Health Officer. There always could be more than one remedy for a single malady, given under different statutes. The impugned Order therefore deserves to be set aside. 12. In the light of the above, this revision needs to succeed. The learned S.D.M. if satisfied, that the nuisance has been abated would be at liberty to drop the proceedings. If not, proceed in accordance with law. 7 13. Parties to appear before the learned S.D.M. on 20th instant at 2.30 p.m. N. A. BRITTO, J. RD