Shri Krishan Yadav vs Kamlesh Bhagel
2023 Latest Caselaw 21206 MP

Madhya Pradesh High Court

Shri Krishan Yadav vs Kamlesh Bhagel on 13 December, 2023

Author: Milind Ramesh Phadke

Bench: Milind Ramesh Phadke

                                   1
 IN     THE       HIGH COURT OF MADHYA PRADESH
                        AT GWALIOR
                          BEFORE
        HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                   ON THE 13 th OF DECEMBER, 2023
                MISC. CRIMINAL CASE No. 5763 of 2017

BETWEEN:-
SHRI KRISHAN YADAV S/O SHRI BHANWARLAL YADAV,
AGED ABOUT 63 YEARS, JUNIUOR H.I.G. 181 MUKHARJI
NAGAR NEAR PANI KI TANKI (MADHYA PRADESH)

                                                                .....PETITIONER
(BY SHRI S.K. MISHRA - ADVOCATE)

AND
KAMLESH BHAGEL S/O SHRI RAM SINGH BHAGEL
MUKHARJI NAGAR NERAR PANI KI TANKI (MADHYA
PRADESH)

                                                             .....RESPONDENTS
(BY RASI KUSHWAH - ADVOCATE)
      This application coming on for hearing this day, the court passed the
following:
                                    ORDER

The present petition under Section 482 of Cr.P.C. has been directed

against the order dated 23.01.2017 passed by Special Judge, Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, whereby the order dated 21.09.2016 passed by SDO, Vidisha in case No.3/133/14, wherein an application under Section 133 of Cr.P.C. preferred by the present petitioner, was assailed and the Revisional Court while dismissing the revision had observed that the dispute between the parties appears to be private in nature and does not involve element of public nuisance.

2. Learned counsel for the petitioner while assailing both the orders i.e.

order passed by the SDO dated 21.09.2016 as well as the order passed by the Revisional Court dated 23.0.2017 contended that both the Courts have misread the provisions of Section 133 of Cr.P.C. specially sub-section 1(B) and 1(D) and thus, has misdirected themselves in passing the impugned orders, which being per se illegal deserve to be set aside. While placing reliance on the aforesaid provisions of sub-section 1(b) and 1(d) of Section 133 of Cr.P.C. learned counsel for the petitioner had submitted that the trade, which is being carried out by the present respondent is proving to be injurious to health and physical comfort of petitioner and his family and also the house in which the trade is being carried out has suffered cracks, which in future may result in its

fall and thereby may cause injury to the persons living or carrying on business in the neighborhood or passer's by, which the learned Sub Divisional Officer as well as Revisional Court has ignored and thus had passed illegal orders which require to be set aside. It was further submitted that a suit for eviction was filed by the present petitioner against the present respondent under the provision of 12(1)(a),(c) and (e) of the M.P. Accommodation Control Act and on all the counts the suit has been decreed, which indicates that the ground of nuisance has also been held to be proved by the trial Court for passing the decree for eviction, therefore, the Sub Divisional Officer as well as Revisional Court were not correct in dismissing the application of petitioner under Section 133 of Cr.P.C. On the strength of aforesaid arguments, learned counsel for the petitioner prayed that the petition be allowed and the orders passed by the Sub Divisional Officer as well as Revisional Court are required to be set aside and further the respondent is required to be directed to close the trade "Aata Chakki" (Flour Mill), which is being run in the premises.

3. Per contra, learned counsel for the respondent submits that from bare perusal of the application filed under Section 133 of Cr.P.C., the ingredients of the aforesaid sections are not attracted, as there is no element of public nuisance involved in the trade which is being carried out by the respondent, no neighbor has come forward alleging nuisance on the part of the present respondent and there is no averment in the application that due to the trade "Aata Chakki" run by the respondent the house had got damaged but only on the basis of oral submissions counsel for the petitioner has tried to demonstrate that due to the aforesaid trade run by the respondent the house is getting damaged.

4. It was further submitted that the decree of eviction dated 17.05.2017 relied upon by the petitioner is still sub judice before this Court in second appeal No.367/2019, in which trial is still pending and, therefore, said judgement and decree has not attained finality till date and therefore, no benefit can be derived by the petitioner out of the said judgment of decree. It was further submitted that the ground of the provision of 12(1)(c) of the M.P. Accommodation Control Act, on which it is stated that the decree of eviction on the ground of nuisance has been passed against the present respondent is not correct, as there is no finding of the trial Court with regard to the nuisance, which has been created by the respondent, while carrying out his trade, further it

is submitted that the factum of the decree of eviction was not brought before the Courts below, therefore, at this juncture without there being any material on record, the said judgment and decree cannot be taken into consideration. Thus, it was prayed that since there is concurrent finding of two Courts, the present MCRC deserves to be dismissed.

5. Heard learned counsel for the parties and perused the record.

6. Section 133 of Cr.P.C. lays down about passing of conditional orders for removal of a nuisance by the competent authority i.e. District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government. The aforesaid powers can be exercised on receiving a report of a police officer or other information and on taking such evidence (if any) as the authority thinks fit and for that consideration with regard to the eventualities mentioned in the said section are required to be taken note of. For ready reference Section 133 of Cr.P.C. is reproduced herein below:-

1. Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers--

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation or the keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, Such Magistrate may make a conditional order

requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, lank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order--

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or

(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;

or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any civil Court.

7. As per the contentions raised by the counsel for the petitioner, sub- section 1(b) and 1(d) of Section 133 of Cr.P.C. are attracted in the present matter, which pertains to injury caused to the health or physical comfort of the community due to the trade or occupation carried out by a person in the premises and damage caused to the property which may result in causing injury to the persons living there or carrying on business in the neighborhood or in the passes by.

8. For attracting the aforesaid provisions, it is required for a person claiming the benefit thereof to demonstrate before the competent authority the factum of the nature of the trade or occupation, which may be injurious to the

physical health or comfort of the people around, which the learned Sub Divisional Officer as well as Revisional Court has not found to be the case, as admittedly the respondent is running a "Aata Chakki"(Flour Mill), way back from the year 2003 and by no stretch of imagination running of such Aata Chakki or Flour Mill can be said to be hazards to mental or physical comfort of the community. Nor any documentary proof has been placed by the petitioner before this Court or Sub Divisional Officer or Revisional Court to demonstrate the aforesaid aspect. Even the report of Patwari, wherein it was held that the running of Flour Mill is causing damage to the house has been objected by the respondent and after taking into consideration the aforesaid aspect Sub Divisional Officer has rejected the application of the present petitioner.

9. The Revisional Court after analyzing the provisions of Section 133 of Cr.P.C. had found that the dispute appears to be of personal in nature and public element of nuisance in the matter, thus, had rejected the revision.

10. This Court in the light of aforesaid discussion and the findings

arrived at by the Sub Divisional Officer as well as Revisional Court, does not find any reason to interfere with the said orders.

11. Accordingly, the present MCRC is hereby dismissed.

(MILIND RAMESH PHADKE) JUDGE neetu NEETU Digitally signed by NEETU SHASHANK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH

SHASH GWALIOR, 2.5.4.20=36b486bb0d381b950e435ec09e 066bc6b58cb947c1474b7dc349a1cf27ea a2ce, postalCode=474001, st=Madhya Pradesh,

ANK serialNumber=E60A9BBFC39E0EE500EAA DE1E0B3B8565CB3A7DC9F5CD048197DF 0FF3149AE58, cn=NEETU SHASHANK Date: 2023.12.15 12:24:27 -08'00'