1969L3024 (PLP)

"From the evidence produced it appears that the working of machine is causing physical discomfort to the community. A notice under section 133, Cr. P. C. be issued to the respondent for 26‑6‑62."

3. In obedience to this notice, respondent Malik Inayat Ullah appeared and in order to show cause against this order, submitted his written statement dated the 4th of July, 1962.

4. The Magistrate recorded the evidence of Syed Naqi Raza Chishti (P. W. 1), Civil Engineer and Architect, in support of his certificate (Exh. P. A.), Abdul Bari (P. W. 2), and Syed Muhammad Hassan Shah (P. W. 3). The applicant, Sh. Abdul Majid, was cross‑examined at length, in continuance of his preliminary statement dated the 28th of May 1952. The respon dent produced Abdur Rahman Niazi, Civil Engineer, in support of his certificate (Exh. D. A.), Riaz‑ur‑Rehman (R. W. 2). Abdul Aziz (R. W. 3) and Inayat‑Ullah also appeared himself as R. W. 4.

5. The Magistrate, after completion of the inquiry, made the order dated the 15th of June 1962 absolute and gave a notice to the respondent to remove the machinery from the basement of the building within a period of three months from that date or he shall be liable, if in default to a penalty prescribed in that behalf under section 188, P. P. C. The Magistrate, discussing the evidence of the parties, observed :‑ "The applicant has produced certificate Exh. P. A. of Chishti Brothers who are Architect Engineers, Surveyors with their Head Office in 71‑Naqi Building, The Mall Lahore and Branch Office in Dacca." Quoting the certificate verbatim, the Magistrate further observed :‑ "This shows that according to the Expert opinion of Engineers, the working of machinery produce great noise and cause much vibration. Even there is a certificate that two roofs have already fallen down as a result of this. The roof of the second floor is also in a very dilapidated condition and may fall off at any time. He has further stated that he had thoroughly examined, the structure of this building and certify that the building is for purely residential purposes and cannot stand the vibrational effects of machinery fixed up by Sh. Inayat Ullah in the basement. I cannot ignore this technical evidence in any case. So it is clear that the occupation of Malik Inayat Ullah with the kind of machinery which causes sound and vibration is injurious to the physical comfort of those persons who are living inside the building and around. The building may fall some time and cause damage to the surroundings. The respondent appeared before me and he had not been able to give a satisfactory reply." A perusal of the record would prove that the order of the Magistrate is arbitrary and devoid of logical conclusions. He has not at all considered the evidence of the witnesses produced by the respondent and the certificate (Exh. D. A.) supported by Abdur Rahman Niazi (R. W. 1). This certificate Exh. D. A. is based on a careful inspection of the building by this engineer and he has given the required technical data. The report (Exh. P. A.) is of a general character and is not based on any technical observations.

6. Malik Inayat Ullah challenged this order dated the 26th of December 1962 of the Magistrate in revision before Mr. Saad Saood Jan, Additional Sessions Judge, Lahore, who, after hearing the parties, came to the conclusion that the nuisance, if any, complained of by Sh. Abdul Majid, applicant, is not a public nuisance, but a private nuisance and further that the fear expressed by the Magistrate, relying on the expert evidence of Mr. Chisti, that "the building may fall sometime and cause damage to the surroundings" will not bring the case in the cate gory of public nuisance.

7. I have heard the learned counsel for the parties at length. Learned counsel of Inayat Ullah supported the order of the Additional Sessions Judge. He argued that the evidence produced by Abdul Majid applicant consisted of his own statement and besides Syed Naqi Raza Chisti, Engineer, he produced Abdul Bari and Syed Muhammad Hassan Shah, who were occupants of the same building and that no other witness of the locality was produced to support the plea of public nuisance. He further argued that the respondent, Malik Inayat Ullah, besides himself appearing as witness, and Abdur Rehman Niazi, produced Riaz‑ur‑Rehman and Abdul Aziz, who are residents of the locality and who supported the plea of the respondent that no public nuisance was caused to the locality. The learned counsel relied on Dwarika Prosad and others v. Dr. B. K. Roy Choudhury and others (A I R 1950 Cal. 349) wherein it was held that:‑ "The word `community' cannot be to mean residents of a particular house. `Community' means something wider than that. It means the public at large or the residents of an entire locality. Where the finding was that the noise of the ice cream making machinery constituted a nuisance to the residents of the building whose flats were adjacent to the place where the machine was running. Held, that this was not a finding that a public nuisance existed and consequently, section 133 had no application. In Ram Dayal Misra v. Mt. Jagdamba Debi and another (A I R 1942 All. 443) it was held: "The proceedings under section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. If a person has any private right which he wishes to enforce he should take his troubles to the civil Courts." In Ramu alias Langar v. Murli Das (A I R 1943 All. 19) Allsop, J. observed as follows:‑ "Criminal cases and cases under the Criminal Procedure Code are not contests between private persons. The proceed ings under section 133 are not intended to settle private dispute between two members of the public. They are originated by the filing of complaint or something of that kind. Any person can give a Magistrate information of the existence of any state of affairs, but when the Magistrate acts on that information, he is acting suo motu. The informant has no rights in the proceedings under section 133 and is not a party thereto; if he wishes to obtain any redress in his personal capacity he can go to a civil Court. If the Magistrate issues a preliminary order under section 133 for the removal of an obstruction the question which arises is one between the Magistrate on the one side on behalf of the public at large and the person, on the other, to whom notice has been issued." In B. S. Corbet and others v. Sonaulla Basunia (A I R 1933 Cal. 150) it was observed by Malik and Remfry, JJ. :‑ "A proceeding under section 133 was started against a person on the ground that he by raising the level of his low land caused an overflow of surplus rain water into other lands: Held, that section 133 did not apply and the persons damnified by the tortuous act may have their remedy by civil suits." In Rameshwar Narayan Agarival v. Emperor (A I R 1939 Bom. 92) it was held:‑ "Where a flour‑mill causes inconvenience to two neighbours who alone report of a nuisance and there is no evidence whatever to suggest that any similar nuisance or inconvenience is caused to anybody else, the working of the engine does not amount to public nuisance and any damage or inconvenience caused to the premises of the two neighbours must be regarded as private nuisance, and does not justify an order under section 137." In Abdul Kader v. The Chairman, Dacca Municipality (P L D 1958 Dacca 425) at page 426 it was held:‑ "The annoyance of a few residents of a single house is not sufficient to constitute a public nuisance as contemplated by section 290 of the Penal Code. It is not sufficient proof under that section to say that the complainant and a few of his tenants represent the people in general who occupy property in the vacinity, there being no other people dwelling within unpleasant range." In Murlidhar Bhila Fatil v. Onkar Vyankat Patil (A I R 1961 Bom. 263) it was observed :‑ "An order under section 133 can be justified only if the conduct of the trade is injurious to the health or physical comfort of the community. The conduct of the trade must be injurious in presenti. A distant possibility of an injury to the health or physical comfort of the community would not justify an order under this section. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or the occupation is conducted."

8. Agreeing with the authorities referred to above, the order of Rana Mahmud Khan, Magistrate Section 30, Lahore, dated the 26th of December 1962, in my opinion, merits setting aside. I, therefore, accept the recommendation of the learned Additional Sessions Judge, Lahore, dated the 7th of March 1963 and set aside the order of the Magistrate making his order dated 15‑6‑62 absolute. Reference accepted.