1968 P Cr (PLP)

MUHAMMAD YAQUB ALI, J.‑Under section 133, Cr. P. C., the petitioner has been directed by the Corporation Magistrate, Lahore, to stop the working of a flour chakki‑cum‑cotton ginning plant on the ground floor of a house situated an Dev Samaj Road, Ram Nagar, Lahore. The house, an evacuee property, was in the course of settlement operations transferred to Haji Allah Bakhsh, respondent, who thereupon moved for the ejectment of the petitioner, but during the pendency of those proceedings the ground floor was transferred to the petitioner and the application for ejectment became infructuous. Haji Allah Bakhsh then moved the Corporation Magistrate under section 133, Cr. P. C. for issuing directions to the petitioner to stop working the flour chakki and the cotton ginning plant on grounds of physical discomfort and injury to the health of the neighbours. Evidence was led by both the parties which disclosed that the working of the Sour chakki and the cotton ginning plant caused vibration and thereby resulted in physical discomfort to the neigbbours. It was also injurious to their health as fine particles of cotton emitted from the ginning plant remained suspended in the air. A conditional order was accordingly made directing the petitioner to cease working the flour chakki and the cotton ginning plant against which he moved the High Court in revisional jurisdiction. The High Court concurred with the findings of the trial Magistrate and dismissed the revision petition from which the petitioner now seeks leave to appeal. The principal ground urged in support of the petition by the learned counsel is that as the flour chakki and the ginning plant bad been in commission for more than 20 years the presumptory provisions of section 133, Cr. P. C., were not attracted in the case. In support of the contention he relied on certain judgments some of which were not in point while others were distinguishable as they dealt with cases of obstruction on public paths. In the case of wrongful occupation of immovable property or exercise of any dominion over it the time factor is a relevant consideration in determining the application of section 133, Cr. P. C., but the same consideration does not apply to the carrying on of an obnoxious trade or occupation resulting in continuing physical discomfort and injury to the health of the, neighbours. The learned counsel next contended that as only Haji Allah Bux and few other neighbours were affected a case of nuisance to the community as provided in section 133, Cr. P. C., was not made out. There is no force in this contention either. Haji Allah Bakhsh, respondent, and the other neighbours form part of the community and it was not necessary to prove physical discomfort and injury to the health of the community as a whole. On facts too we find the impugned order fully justified. The' working of a flour chakki and a cotton ginning plant in a crowded locality of Lahore must have been a cause of great nuisance to the neighbours and it was eminently just to put an end to it. In the circumstances we refuse leave to appeal and dismiss this petition.