Decided on August 06,1980

STATE OF M.P. Appellant
Municipal Council Ratlam Respondents

Referred Judgements :-



G.L.OZA, J. - (1.)THIS is a reference made by the Additional Sessions Judge, Ratlam, for quashing the order dated 23rd February 1976 passed by the Sub -Divisional Magistrate Ratlam.
(2.)THE applicants before the Sub -Divisional Magistrate who are citizens and owners of houses in New Road Ratlam submitted an application before the Sub -Divisional Magistrate on 1 -5 -1972 under section 133 of the Code of Criminal Procedure for a direction against the Municipal Council Ratlam and Town Improvement Trust Ratlam for removal of nuisance. The nuisance alleged by the applicants has been categorized by the learned Sub -Divisional Magistrate after consideration of the matter in his conditional order dated 2 -8 -1972
(1) That the Nala which flows in the middle of Ward No. 12 should be so maintained that the rain -water does not collect and does not spread into the houses of the locality. It should be so maintained that the water flows out of the town. It also should be maintained so that the alcohol plant's dirty water which is full of nauseating smell should not be left in this Nala as it passes through inhabited locality:

(2) That in the alleged area the drains which are in -complete be made in such a manner that the dirty water flows out and does not collect :

(3) That between the college boundary and on the roadside there are big pits -kachha drains where dirty water collects and becomes a breeding centre for mosquitoes which should be stopped. In response to this order the parties were given opportunity of hearing and to lead evidence. It is strange that in a proceeding of this nature which is for removal of nuisance it took four years for the Sub -Divisional Magistrate to pass the final order as the proceedings disclose that the public authorities who were executed to come forward in straight -forward manner for clearance of nuisance only raised all kind of objections and filed replies which reflects on the authorities managing the municipal council at the time. Ultimately the Sub -Divisional Magistrate passed the order dated 23 -2 -1976 and against this order two separate revision petitions were filed before the Court of Sessions by the Municipal Council as well as by the Town Improvement Trust Ratlam and by a common order the learned Sessions Judge has made this reference. Before passing this order, in spite of a number of opportunities given to the parties, i.e., the Municipal Council and the Town Improvement Trust, no evidence was led.

One of the grounds made by the learned Sessions Judge for making this reference is that in the conditional order passed by the Sub -Divisional Magistrate under section 137(3) Cr. P.C. some modification has been made when the learned Magistrate ultimately passed the final order and according to the learned Additional Sessions Judge this is therefore an error which ill sufficient to set aside the order passed by the Sub -Divisional Magistrate. The learned Additional Sessions Judge also found that the order which is passed finally in which directions have been given to the non -applicants is vague and he therefore felt that it out not possible to carry it out, and for that reason also the learned Judge felt that the order deserves to be set aside.

(3.)SO far as the question of modification of the conditional order is concerned, the learned Additional Sessions Judge felt that Direction No.1 which was contained in the conditional order and is also contained in the final order has been substance, modified. In fact there is hardly any modification in substance, Direction No. 1 in the conditional order and the final order remains the same and it could not be contended that it was modified so as to make a new direction of which the petitioners before the Sessions Court had no notice. Direction No.1 contained in the conditional order reads; - ...[VERNACULAR TEXT OMITTED]...
A reading of these two directions clearly shows that except that what was stated in Direction No.1 of the conditional order has been clarified in the Direction No. 1 of the final order, there is hardly any modification; and it also appears that this clarification must have been done after hearing the petitioners Municipal Council and the Town Improvement Trust. The rest of the directions are practically the same except that one of the directions in the conditional order -which was Direction No.3 has been dropped in the final order and it appears that it was dropped because it must have been found that it is beyond the control of the Municipal Council. Looking to these two orders, therefore, it could not be said that there is any modification of the order or substantial change in the directions contained in the final order as compared with the conditional order passed by the Magistrate. This question under section 133 of the Code of Criminal Procedure came up for Consideration before their Lordships of the Supreme Court in Gobind Singh v. Shanti Sarup AIR 1979 SC 143 and it was felt that if any part of the final order has gone beyond the conditional order it could be modified so as to make it consistent with the conditioned order. While considering this question their Lordships observed : -

"The learned Magistrate has hower gone beyond the scope of the conditional order which he had passed on Dec. 16,1969, by which he required the appellant to demolish the said oven and the chimney" within a period of 10 days from the issue of the order. The final order passed by the learned Magistrate is to the effect that the appellant shall cease to carryon the trade of a baker at the particular site and shall not lit the oven again. Preventing the appellant from using the oven is certainly within the terms of the conditional order but not so the order requiring him to desist from carrying on the trade of a baker at the site While, therefore upholding the order of the learned Magistrate and the view of the High Court, we consider it necessary to clarify that the proper order to pass would to require that appellant to demolish the oven and the chimney constructed by him within a period of one month from today. It is needless to add that the appellant shall not in the meanwade use the oven and the chimney for any purpose whatsoever."

In a matter of this kind, their Lordships also considered how the matter should be approached and it was observed:

"It is true that the learned Additional Sessions Judge did not agree with the findings of the Sub Divisional Magistrate, but considering the evidence in the cafe, the reasons given by the Magistrate in import of his order and the fact that the High Court was unable to accept the recommendation made by the Additional Sessions Judge, we are of the opinion that in a matter of this nature where what is involved is not merely the right of a private individual but the health safety and convenience of the public at large, the safer course would be to accept the view of the learned Magistrate, who saw for himself the hazard resulting from the working of the bakery."

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