Susheel Grover v. State of Punjab & Ors.

Mr. P.S. Ahluwalia, Advocate for respondent No.2. Jaswant Singh, J Present petition under Section 482 Cr.P.C has been filed seeking quashing of the order dated 16.12.2009 passed by Additional District Judge (Ad hoc) Fast Track Court, Hoshiarpur dismissing the revision petition filed by the petitioner as also the orders dated 21.2.2007 passed by the SDM, Dasuya in exercise of powers under Section 133 Cr.P.C, whereby the petitioner has been directed to remove his poultry shed within one month. As per averments made in the petition, the petitioner is running a Poultry Farm under the name and style of Proprietor Grover Poultry Traders, Jaja Road, Tanda for the last about 12 years. Respondent No.2- Crl.M.No.1524-M of 2010(O&M) #2# Hardial Singh filed a petition under Section 133 Cr.P.C alleging therein that previously the petitioner was running the business of selling Chicken feed but about 6 months back he started the business of selling chicks also, which was a source of nuisance for the residents of the locality.

It was prayed that keeping in view the health of the residents of the locality, the petitioner be restrained from carrying on the chick business. Upon notice, petitioner filed reply to the petition under Section 133 Cr.P.C. Both sides led evidence. The learned SDM, Dasuya after hearing the learned counsel, perusing the material available on record and visiting the spot passed impugned order dated 21.2.2007 directing the petitioner to remove the Poultry Shed within one month from the passing of the order. Aggrieved against the same, petitioner filed a revision petition before the learned Additional Sessions Judge (Ad hoc) Fast Track Court, Hoshiarpur. The said revision petition stood dismissed vide impugned order dated 16.12.2009. Hence, the present petition. Reply dated 14.7.2010 by way of affidavit dated 25.8.2010 of Sh. Baljit Singh Dhillon, DSP, Sub-Division Dasuya, District Hoshiarpur of this petition has been filed on behalf of respondent No.1-State of Punjab stating that the revision petition filed by the petitioner has rightly been dismissed by passing a well-speaking order and that the the present petition deserves to be dismissed.

Another reply by way of affidavit of SDM, Dasuya has also been filed on behalf of respondent No.1 wherein it is stated that from the report (Ex.P.6) the factum of nuisance was highlighted and even on spot inspection made by the learned trial Court permissible under Section 310 Cr.P.C, it was found that acts of the petitioners are/were indeed causing Crl.M.No.1524-M of 2010(O&M) #3# nuisance. It was admitted that there is a great smell due to the running of the said business, which the petitioner has started recently. Separate reply dated 26.4.2010 has been filed by respondent No.2-Hardial Singh. Learned counsel for the petitioner contends that the petitioner is running a business of selling feed for birds (chicks) as well as birds (chicks) in the name and style of Proprietor Grover Poultry Traders Jaja Road, Tanda for the last 12 years without there being any complaint. It is alleged that no one from the locality has come forward to depose against the petitioner and it is only respondent No.2-Hardial Singh, who was nursing grudge against the petitioner and filed a petition before the Sub Divisional Magistrate, Dasuya (for short “the SDM”) with malafide intention leveling allegations that about six months back, petitioner had started business of selling chicks and the birds/chicks make noise, which creates nuisance resulting into causing diseases in the locality because of its foul smell.

Learned counsel further contends that the learned SDM has not followed the provisions of relevant law of the code of Criminal Procedure before passing the impugned order besides giving any opportunity to the petitioner of being heard before conducting spot inspection by the SDM. It is further contended that the provisions of Section 133 Cr.P.C cannot be invoked for settlement of disputes of private nature rather for proving public nuisance within purview of Section 133 Cr.P.C, a number of persons should come forward and there should be a danger or inconvenience to the public at large and not only to one individual only. In support of his contentions, learned counsel cites a judgment of Hon'ble Supreme Court reported as Suhelkhan Khudyarkhan and Anr v. State of Maharashtra and Others 2009(3) RCR (Criminal) 36. Crl.M.No.1524-M of 2010(O&M) #4# Learned state counsel supported the reasoning given by the learned Additional Sessions Judge while dismissing the revision petition besides praying for dismissal of the present petition.

Learned counsel for respondent No.2 placed on record the report dated 28.9.2005 (P.6) of Poultry Inspector (PW4), which has been taken on record as R.1. He submits that it is a case of public nuisance falling within the purview of Section 133 Cr.P.C and therefore, the impugned order does not call for any interference by this Court. He further submits that there is no illegality or perversity in the impugned order discussing all the issues, therefore, the present petition be dismissed. He cites a judgment of Hon'ble Supreme Court reported as Kachrulal Bhagirath Agrawal and Ors v. State of Maharashtra and ors, 2004 (4) RCR (Criminal) 415 as well as a judgment of this Court passed on 22.3.2007 in Crl.M.No.71819-M of 2006 titled Santokh Singh v. Municipal Council, Goniana Mandi. Having heard learned counsel for the parties and perusing the entire case file, this court finds that there is no substance in the present petition and the same deserves dismissal.

Report (R.1) dated 28.9.2005 (Exhibit P.6) submitted by the Poultry Inspector (PW4) proves that the poultry farm of the petitioner is situated within the abadi area and it causes foul smell and that the petitioner is not a Poultry Farm owner. It is stated that as per record and information received from other sources, the petitioner is a whole-sale dealer and his double storied Poultry Farm (60’x 24’) always remain full with livestock and that a trader cannot arrange bio-security measures. Similarly, site plan, which has been placed on record by the petitioner reveals that the alleged poultry farm is situated adjacent to the Crl.M.No.1524-M of 2010(O&M) #5# house of respondent No.2. It is not in dispute that respondent No.2 has constructed his residential house and is residing there with his family. It is pertinent to mention that after visiting the spot on 9.1.2007, the SDM found that the birds/chicks make noise, give foul smell feathers of the chicks and also enter into the house of the persons residing in the locality and as such the business of the petitioner is creating nuisance to the public, which is injurious to the health and physical comfort of the nearby residents and passerby.

It is matter of record that neither the SDM is a party nor any allegation of malafide are levelled against him in the absence of which the spot inspection carried out by the SDM on 9.1.2007 can be accepted to be true and correct while discharging his official duty and a presumption of truth is attached with the same in view of the provisions of Section 114 Illustration (e) of the Indian Evidence Act, 1872. Argument of the petitioner that no one from the locality has come forward deposing against him and as such the dispute being of private nature cannot be termed as a public nuisance within the meaning of Section 133 Cr.P.C as there should be number of persons, who should have come forward and joined the complainant, is not acceptable. There is no requirement of law under Section 133 Cr.P.C that a particular number of persons should be associated in the complaint. The only requirement, which is to be fulfilled is that the public nuisance should be established.

In the present case, besides the complainant, other witnesses from the locality proving the public nuisance are Gurmit Singh PW2, Kamal Nain Singh-PW3 and Jarnail Singh-PW4, who happens to be a Poultry Inspector whose report (Ex.P.6) has already been taken on record as R.1. In Crl.M.No.1524-M of 2010(O&M) #6# that report (R.1), it has been found that the Poultry Farm is situated in the abadi area and it causes foul smell. Moreover, witness of DW3-Gurmit Singh Sodhi has also admitted that the persons, who passes near the poultry farm, gets foul smell. The gist of case law cited on behalf of the respondent- complainant is to the effect that the public nuisance must be established interfering with the comforts of the public. Keeping in view the cumulative effect of the statement of witnesses and the contents of the report (R.1) of the Poultry Inspector, it is clearly established that this is a case of public nuisance, hence learned Revisional Court has rightly dismissed the revision petition.

Furthermore, the argument that more than one persons should have been associated with the complaint was never raised before the court below exercising revision jurisdiction is also liable to be rejected. Respondent No.2 while appearing in the witness box supported the contents of the complaint and produced other witnesses i.e Gurmit Singh as PW2, Kamal Nain Singh as PW3 and Jarnail Singh as PW4-Poultry Inspector besides examining himself as PW1. He stated that the petitioner is running a poultry farm, which causes public nuisance and foul smell and there is a threat of bird flue. Even DW2-R.N. Suri, who was produced by the petitioner himself, in his cross examination admitted that there are houses of Kamal Nain Singh, Gurmit Singh and his brothers on the southern side and there is house of Vasakha Singh near the house of Gurmit Singh. He further admitted that birds remain there in the shed daily and trucks of birds are brought.

DW3-Gurmit Singh Sodhi, who was also examined by the petitioner, also admitted in his cross examination that the persons, who Crl.M.No.1524-M of 2010(O&M) #7# pass near the poultry shed get foul smell. After going through the evidence led by the parties and material available on record, learned revisional Court has rightly held that the poultry shed is situated in the abadi area of M.C Tanda and the petitioner got approved the site plan from the M.C, Tanda for raising construction for his office and store, therefore, it is proved that the property in dispute is situated within the area of M.C Tanda and even the petitioner himself as admitted that storage of birds create foul smell and they raise noise while seeing dog, cat and sang etc and there are houses of Hardial Singh, Gurmit Singh etc near the stores.A perusal of the revision petition filed by the petitioner before the learned Sessions Judge, Hoshiarpur does not reveal that there is any allegation of malafide against the SDM, who is very much empowered of local inspection in view of Section 310 Cr.P.C for the purpose of properly appreciating the evidence.

Even otherwise, it is admitted that the present revision petition filed under Section 482 Cr.P.C virtually amounts to a second criminal revision petition, which is not ordinarily maintainable in view of Section 397(3) Cr.P.C. In view of the aforesaid discussion and going through the record, this court finds no illegality, perversity or any miscarriage of justice in the impugned order, which warrants interference by this Court. Dismissed. December 07, 2010 ( JASWANT SINGH ) JUDGE