Ram Autar v. State of U. P.

Das GuplaJ. DAS GUPTA, J. -This appiial by special leave

is against the order of the High Court at Allahabad. dismissing the application for revision of.an order under s. 133 of the Code of Criminal Procedure. The three appellants carry on the trade of auctioning vegetables. These vegetables, it appears, · are brought in carts which are parked on the public road outside the building where the aucthning takes place. There was some dispute between these appellants and the Municipal Board which it is suggested by the appellants was really behind the move to get this 9rder under s. 133 passed against them. It is unnecessary, however, for us to consider that matter. What appears to be clear is that the trade is carried on in a private house in the subzimandi quarter and it dose .happen that some r amount of incovenience is caused to people who pass by the public road because of the carts which necessarily come near this house. The real question iij, whether because this tra,de of auctioning vege-tables which the appellants carry on in their private house produce the consequence that people passing by the road are put to inconvenience, action can be taken under s. 133 of the Code of Criminal Procedure. The High Court seems to be of the opinion:..:... , .

"when it, is clear that the business of auctioning vegetables cannot be carried on without causing obstruction to the passers by, the conduct of the business cau be prohibited, even thou~h it i,s c~rried oµ. in a. rrivat11 ·?lace/' , It seems to us that this proposition has been put 1962 too widely. Section 133 of the Code of Criminal Procedure empowers ·action by the District Ram Autar v. Magistrate, Sub-Divisional Magistrate or Magistrate Stale •JU. P. 1st class to remove public nuisances in certain circumstances. Two out of the several els. of s. Das Gupta 6. 133(1) in which these circumstances a.re set out, with which we a.re concerned, are the first and second clauses. The first clause provides for aotion by Magistrate where he considers, on receiving a police-report or other information and on taking such evidence as he thinks fit,_ that any unlawful obstruction or nuisance should be removed from any way, river or "hannel which is or may be lawfully used by the public or from any public place. The second clause deals with the position where the conduct of any trade or occupa-tion or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the _ keeping thereof regulated. ·

It is difficult to see how the first clause can have any application. Unlawful obstruction, if any, is certaiJ;1ly not caused by the people who carry on the trade of auctioning. If the obstruction caused by keeping the carts on the roa.d . can be considered to be unlawful obstruction within the meaning of this clause-about which we express no opinion action can be taken against the persons causing such obstruction. The obvious difficulty in the way of that might be that the persons who bring the cartsare not the same from day today. But whether or not any action is possible under s. 133 against the persons bringing the carts, we are unable to agree that merely because the appellants carry on auctioning in connection with which the carts are brou~ht 1 the' c~µ be copsidered to ~ve caused't~~

12 SUPREME OOUR.T REPoRTS fi~963j 1962 obstruction. In our opinion, the appelliints cannot

be considered to be the persons causing obstruction. RamrAuttir-

y. Turning now to the hext clause, the question StaieoJU. P.

arises how the conduct of this auctioning trade is Das 'Gupta J. injurious to the health or physical comfort of the

community. Undoubtedly, some amount of noise and perh!lps a great deal of noise is caused when the auction is going on. That liowever is a neces· sary concomitant of buying and selling large quim-tities and it will be unreasonable to t.hink that merely because some amount of noise is caused which people preferring perfect peace may not like, this is injurious to thti physical comfort, or health of the "community". It appears to· us that the conduct of tmdes of this nrJ;ure and indeed of other trades in localities of a city w :..ere such trades are .usually carried on, is bound to produce some dis-comfort, though at the same time resulting perhaps ' i!} the good or the community in other respects. If a trade like auctioning which has to be carried on as necessary for the well being of the comri:m· nity, so.me amount of noise has to be borne in at jeast that part of the town where such trade is ordinarily catriei oh. In inakiilg the provisions of s. 133 of the Code of Criminal Procedure, the ' legislature cannot have intended the; stoppage df

such trades in such part of the town, merely because of the "discomfort" caused by tlie noise in carrying on the trade. In our opinion therefore, the slight discomfort that may be caused to some people passing by the ro!l.d or living in the neighbourhood ca:nnot ordiriadly be considered to be such as to ju'iltify action under s. 133 of the Code of Crimin'al Procedure. We do not think that the orders are justified under s. 133. Accor- . dingly, we allow the appeal and set aside the order . Jriadt:i b~ the :Magistrate. .

. Appeal aUowe4~

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 79 ofl960.

Appeal by special leave from the judgmtlnt and order dated August 18, 1969, of the Allahabad lli~h Court in CriJDinal Revision No. 947 of 1959.

i • • . ,

10 SUPREME COURT REPOR'.1.'S [1963]

1962 G.L. Prem, for the appellants.

Ram.Autar •• G.G. Mathur and G. P. Lal, for the respondent. Stauo/U.P. 1962. May 3. The Judgment of the Ca°urt was

delivered by