- (1.) GIRDBAR Malviya, J. Heard Sri A. R. B. Kher learned counsel for the applicant and Shri Haji Iqbal Ahmad learned counsel for opposite parties 2, 3 and 4 and perused the impugned order as also the record of this revision in the High Court.
(2.) IT appears that the respondents were having godowa in which they used to bring railway wagons after purchasing them in the auction. After dismantling and cutting the same they used to sell the scrap material in the market. This work in the said godown is alleged to be going on for quite a few years. However, finding that the entire work was causing great annoyance and constant disturbance to the children in their studies and even that small particles of iron when being cut used to fly to the house of Lt. Col. Gurupal Singh, the said Lt. Col. Ourupal Singh (retired) made an application under Sec. 133, Cr. P. C, in the court of City Magistrate, Jhansi to stop the said nui sance. By a conditional order dated 19-7- 1991 passed under Sec. 133j), Cr. P. C. the applicants who were opposite parties in the proceedings in the court below were directed either to remove the nuisance or to show cause. After the parties had put in appearance and contested the proceedings the City Magistrate, Jhansi by his order dated 7-10-1991 in Case No. 51 of 1990 had confirmed the order dated 19-7-1991 and had directed the said nuisance to be removed by the applicants failing which it was to be removed by the police. Having gone through the entire facts and circumstances of this case, I feel that it will be totally improper in the present day society to direct any business to be altogether closed merely on the pretext that from the said business the sound produced disturbs the people or that the particles which may fly could hit the passers by and for that reason the business should altogether be closed If a closure of business is to be directed due to such factors then there would be total stoppage of business activities of this nature which a modern and developing country cannot afford. However, it is equally important that the business may not be conducted in a manner which may seriously prejudice the neighbouring residents of the same locality. It is a common knowledge that the children have to make their studies in the evening and the people have to sleep at night. Sometimes even during the day time there may be a serious patients who may be required to bs kept away from such noise but all these considerations can only result in getting the business to be regulated in such a manner that the nuisance becomes tolerable atleast during the main part of the day. It appears that the court below has not considered this aspect of the matter at all. Consequently it is better that the case is sent back to the court below so that the court below after giving opportunities to both the parties Sads out ways and manner in which the business of the applicant may be regulated so as to minimise the nuisance to the neighbouring residents. In doing so will be open for the court to direct a particular nature of business not to be conducted in the evening after a particular hour keeping in mind both the long and short days during the summer and winter seasons respectively. It will also be open for the parties to place such facts before the court below as they may deem proper in this regard. 4, This revision is accordingly allowed. The impugned order dated 7-10-1991 passed by City Magistrate, Jhansi in Case No. 51 of 1991 Gurupal Singh Lr. Col. (Retd.) v. Sardar Gurudayal Singh, under Section 133, Cr. P. C. , Police Station Sipri Bazar, Jhansi is set aside and the case is remanded back to the court to be decided in light of the observations made hereinbefore. 5. The record of the case shall also be sent immediately so that the matter does not take long in the court below for being finally decided. Revision allowed. .;