- (1.) Legality of action taken and order passed by learned Sub-Divisional Magistrate, Sakoli (for short 'SDM' under Section 133 of the Code of Criminal Procedure, 1973 (in short the 'Code') having upheld by a learned single Judge of the Bombay High Court, this appeal has been filed. It is of relevance to note that the appellants had filed a revision before the learned Additional Sessions Judge, Gondia, questioning legality of the order dated 7-2-1989 passed by the SDM. The revisional authority held that the order passed by the SDM was not legal. Thereafter a revision was filed by the five of the original applicants, who had initiated action before the SDM. The High Court as noted above, by the impugned judgment held that the order passed by the SDM was legal and proper. The revisional court should not have interfered with it.
(2.) Background facts as per the complainants are as follows: The original non-applicant M/s. Ramchand Bhagirath is a proprietary concern of Bhagirath Ramchand Agrawal (since deceased). He was a commission agent in a Kirana goods and was also a wholesale dealer in dry chillies. In Ansari Ward of Gondia city, he had a godown in a double storied building known as Vishnu Kunj where he used to store large quantity of chillies. The applicants before learned SDM are residents of Ansari Ward which is mainly a residential locality. Present appellant No.1 being a wholesale dealer in dry chillies, everyday trucks loaded with dry chillies come to his godown and then the same are unloaded and stored in the godown. Similarly, loading of dry chillies also goes on for distributing the same to his customers. This has been going on since several years and it appears to have become a routine thing. The applicants, however, made a grievance that on account of storing of dry chillies in the godown as well as the work of loading and unloading thereof the health and physical comfort of the residents in that locality were affected and it has become practically impossible for them to bear any further. According to them, the loading and unloading of chillies cause pollution with the result that many residents in the locality suffer from sneezing, coughing, asthma, irritation of skin and burning sensation. The applicants, therefore, moved the Municipal Council for taking necessary action in this behalf. However, since the Municipal Council did not give any response, the applicants moved learned SDM, Gondia, under Section 133 of the Code. The learned SDM, after finding that there was a prima facie case against the present applicants issued a conditional order dated 12-3-1985 under Section 133(1) (b) of the Code with a notice to them to show cause as to why the same should not be confirmed and made absolute. Pursuant to the said notice, the appellants appeared before learned SDM, Gondia, and filed reply. In the said reply, it was submitted that the building "Vishnu Kunj" was being used as godown but it was denied that the loading and unloading of dry chillies pollutes the atmosphere and causes physical injury or discomfort to the residents of the locality. It was pointed out that the godown is a pakka construction and that whenever loading and unloading is required to be done, water is sprinkled to avoid pollution. This has been going on fort about 20 years and nobody ever made any complaint in that behalf. Learned SDM, Gondia, allowed the parties to lead evidence in support of their respective contentions. He recorded part of the evidence and thereafter the case was transferred to learned SDM, Sakoli, who completed the enquiry. Learned SDM, Sakoli, upon consideration of the evidence of the witnesses came to the following conclusions viz.: (i) People in general in the locality in sufficient number are suffering from the loading and unloading of dry chillies and its storage in the godown; (ii) It has resulted not only in their adverse health and discomfort but a few are permanently suffering in the sense that some of them are suffering from sickness and ailment; (iii) Even the witnesses of the non-applicant admitted that due to this business, there is discomfort and injury to physical health;
(3.) In this view of the matter, learned SDM, Sakoli, held that the applicants proved public nuisance and physical discomfort to them. Consequently, learned SDM, Sakoli, proceeded to pass an order under Section 133 of the Code, operative part of which reads as follows: "The non-applicant is hereby directed that he will not keep, store and transport chillies in the godown, Vishnu Kunj as the same is injurious to the health and physical comfort of the community and he shall also remove all the goods stored therein. This order shall be given effect from 22nd February, 1989. Notice in Form No. 21 be issued to the non-applicant.";