HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NOS.431 OF 2007 & 432 OF 2007 Date: 26.02.2010 CRL.PETITION NO.431 OF 2007 Between: M/S. A.P. Jayakar and company, Khammam, rep. by its Manager, Khammam …..Petitioner And: Environmental Engineer, Kothagudem and 8 others …..Respondents. CRL.PETITION NO.432 OF 2007 Between: M/s. A.P. Gandhi Rajan and Company, Khammam, rep. by its Proprietor, Khammam …..Petitioner And: Environmental Engineer, Kothagudem and 8 others …..Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NOS.431 OF 2007 & 432 OF 2007 COMMON ORDER: These two petitions are filed by the accused Nos.1 & 2 under Section 482 Cr.P.C., questioning orders dated 27.12.2006 passed by the Principal Sessions Judge, Khammam in Criminal Revision Petition Nos.62 of 2006 and 63 of 2006 confirming order dated 06.11.2006 passed by the Revenue Divisional Officer and Sub Divisional Magistrate, Khammam in R.C.No.C3/1586/2005 passed under Section 133/138 of Cr.P.C directing the petitioners herein to cease carrying trade of storage of chillies in godowns. The petitioners in both the petitions are storing chillies in their godowns and they are given provisional registration by the Industries Department as Small Scale Industry/Small Scale Service Business Establishment Unit for the activity of ‘deseeding of chillies’. The petitioners constructed the godowns with permission of Khammam Municipality in the year 2001. The petitioners filed copies of permission granted by the Municipality with approved plan and provisional registration given by the Industries Department. The petitioners also filed copies of photographs relating to location of the godowns. Alleging that there was pungent smell from the petitioners’ chillies godowns in Prakashnagar. The Environmental Engineer, Kothagudem filed report before the Sub Divisional Magistrate, Khammam. The respondents 2 to 9 herein impleaded themselves in those proceedings. They are residents of Prakashnagar, Khammam. After giving show-cause notice, receiving explanation from the petitioners herein and hearing arguments of the counsel, the Sub Divisional Magistrate, Khammam passed the impugned order under Section 133 Cr.P.C., which was confirmed by the Principal Sessions Court, Khammam. It is contended by the petitioners’ counsel after obtaining necessary permissions from the Municipality and the Industries Department, the petitioners constructed the godowns and are carrying on the activity and that therefore, the Sub Divisional Magistrate, Khammam cannot exercise jurisdiction under Section 133/138 Cr.P.C., directing the petitioners to cease their business activity in their respective godowns. Simply because the petitioners obtained permissions from the Municipality for construction of the godowns and simply because they obtained provisional registration of their business activity with the Industries Department, the petitioners cannot contend that the Sub Divisional Magistrate, Khammam is estopped from taking action under Section 133/138 Cr.P.C. In case, activity of the petitioners amounts to public nuisance then the Sub Divisional Magistrate, Khammam is empowered to invoke powers under Section 133 Cr.P.C. The only pre-condition for exercising power under Section 133 Cr.P.C is that conduct of trade or occupation or keeping of any goods or merchandise is injuries to health or physical comfort of the community. Both the Sub Divisional Magistrates, Khammam and the Principal Sessions Judge, Khammam basing on decision of the Apex Court in Kachrulal Bhagirath Agrawal v. State of Maharashtra[1] came to the conclusion that godown for storing dried chillies caused physical discomfort and health hazardous to residents of the locality. It is contended by the petitioners’ counsel that before applying the said reported decision of the Supreme Court, the Sub Divisional Magistrate, Khammam and the Principal Sessions Judge, Khammam should have seen whether there is any material in respect of the conclusion that the petitioners’ godowns are causing health hazardous or physical discomfort to the community of persons. Except report of the 1st respondent/Environmental Engineer, there is no other material before the Sub Divisional Magistrate, Khammam to come to that conclusion against the petitioners. No enquiry as such was conducted by the Sub Divisional Magistrate, Khammam by way of recording oral evidence by the complainants and affording opportunity for their cross-examination by the petitioners herein. No documents are marked by either side much less proved by examining persons connected to those documents. The petitioners filed certificate dated 15.11.2006 issued by the Commissioner of Khammam Municipality to the effect that house bearing Door No.4-8-4/A-1 situated at Prakashnagar is falling in the industrial use zone as per the sanctioned master plan of Khammam Municipality. From this certificate, it is contended by the petitioners’ counsel that area of Prakashnagar in which the petitioners’ godowns as well as houses of the respondents No.2 to 9 are located in industrial use zone as per the sanctioned master plan of Khammam Municipality and that having erected their houses in the industrial zone, the respondents 2 to 9 cannot be allowed to complain that industrial or trading activity in Prakashnagar area is causing physical discomfort or injury to health or nuisance to them. According to the respondents 2 to 9, they and others constructed 200 houses in the locality when the Government allotted residential plots to them in that locality and that all of them belong to schedule tribe and backward classes. It is also contended by the petitioners’ counsel that residential houses of the respondents 2 to 9 are at a longer distance of more than one parlong from the petitioners places of business activity and that there is no possibility of pungent smell from the petitioners’ godowns prevailing up to houses of the respondents 2 to 9 and others. All these matters are questions of fact which have to be decided by the Sub Divisional Magistrate, Khammam basing on evidence let in before him during enquiry contemplated under Section 138 Cr.P.C. It is further contended by the petitioners’ counsel that the Sub Divisional Magistrate, Khammam did not give any finding as such before passing final order under Section 133 Cr.P.C about business activity of the petitioners causing health hazardous or physical discomfort to the community at large. When there is no evidence recorded by the Sub Divisional Magistrate, Khammam during enquiry and when there is no finding about causing health hazardous or physical discomfort to the community, the question of the Sub Divisional Magistrate, Khammam passing final order under Section 133 Cr.P.C prohibiting the petitioners from carrying on their business activity in their dried chillies godowns. I n Kachrulal Bhagirath Agrawal (1 supra) as well as in Suhelkhan Khudyarkhan v. State of Maharashtra,[2] it was held by the Supreme Court:- “A proceeding under Section 133 is of a summary nature”. “The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature”. “In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word ‘community’ in Clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter containing “Public Nuisance” is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any strait-jacket formula”. The Allahabad High Court in Jagadamba Prasad Tewari v. State of UP,[3] it was observed:- “The provisions of cl.(1) of S.138, Cr.P.C are mandatory in nature and before making an order absolute, u/sub-cl.(2) thereof, it is imperative for the Magistrate to take evidence in the manner as required in the summons case.” Further in Chabila Roy v. State,[4] the Calcutta High Court held that an order under Section 133 Cr.P.C was illegal and in variance with express provisions contained therein when the petitioner and local people were not examined about physical discomfort or health hazardous on account of the complained activity of Khatal. It was further held that therein that simply because existence of Khatal for about 45 years is admitted, such an admission did not warrant dispensing with recording of evidence and detailed enquiry. I n Sallitho Ores Ltd., v. Bhimappa Chandrappa Dadugol,[5] the Goa, Daman and DIU J.C’s Court observed that mining operations had to be injurious to the public at large or to the residents of the community as a whole and not to a few individuals residing in some hutments in mining locality. In Ram Autar vs. State of U.P.,[6] it was held by the Supreme Court that conduct of trades in localities of city where such trades are usually carried on is bound to produce some discomfort though at the same time resulting perhaps in the good of the community in other respects. At the end, I would like to go Thesiger, L.J in Sturges v. Bridgman[7] as under:- “Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsy; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance,…..the trade or manufacture so carried on in that locality is not a private or actionable wrong.” Having regard to the fact that the Sub Divisional Magistrate, Khammam did not conduct proper enquiry in as much as, did not record oral evidence of both the parties and mark documents filed by both the parties, I propose to order further enquiry in this matter by the Sub Divisional Magistrate, Khammam accordingly. The Sub Divisional Magistrate, Khammam after due enquiry will pass final order under Section 133 Cr.P.C having regard to all the observations made by this Court supra. In the result, both the petitions are allowed setting aside the order passed by the Sub Divisional Magistrate, Khammam and orders passed by the Principal Sessions Judge, Khammam and directing the Sub Divisional Magistrate, Khammam to conduct fresh enquiry in the light of the observations made in this order and then pass appropriate order under Section 133 Cr.P.C. ____________________________________ SAMUDRALA GOVINDA RAJULU,J. Date:26.02.2010. Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NOS.431 OF 2007 & 432 OF 2007 Date: 26.02.2010 Gk. [1] 2004(2) ALT (Crl.) 436 (SC) [2] AIR 2009 Supreme Court 1868 [3] 1991 CRI.L.J.1883 [4] 1983 CRI.L.J.NOC 203(Cal) [5] 1979 CRI.L.J.355 [6] AIR 1962 SC 1794 [7] (1879) 11 Ch D 852