Hemant Gupta, J.
1. Challenge in the present revision petition isto the order passed by the learned Additional SessionsJudge, Mansa in revision petition filed by the complainantunder Section 133 Cr.P.C. which was dismissed by thelearned trial court on 27.2.1998.
2. The complainant has alleged that he is residentof Ward No. 15, Mansa which is a residential colony. Thepetitioners, herein have installed an Atta Chakki andcotton ginning Machine in front of the house of theapplicant without permission of the Municipal Committee.It was also alleged that by working of Atta Chakki andCotton Ginning Machine, the dust and cotton particles, arecreated and they spread pollution in the air which isharmful to the health of the inhabitants of the area. Italso create vibrations which effected their residentialhouses and also it is a cause of nuisance to them. Thetractor trolleys which being grain at the Atta Chakki areparked in the street which is not sufficiently wide andthat obstructs the passage of the general public as wellas of the applicant a house. He and his wife are said tobe suffering from Tuberculosis.
3. Notice of the complaint was given to thepresent petitioner who submitted a written reply. Locusstandi of the complainant to file the complaint inindividual capacity was denied. It was stated that AttaChakki and Cotton Ginning Machine are working for the lastso many years. The tractor trolleys come there in a verysmall number and they do not obstruct passage of thegeneral public.
4. The learned Magistrate recorded the statementsof the complainant as A.W.3 as well as A.W.1 Amar Singhand A.W.2 Roop Chand whereas on behalf of the petitionersR.W.1 Chhaju Ram has appeared as also he produced R.W.2Tek Singh and Babu Ram R.W.3. After going through theentire evidence, the learned trial Magistrate dismissedthe complaint finding that flour mill was installed numberof years ago. It has come in the evidence of Amar Singhwho has a house adjacent to Chakki that flour mill isworking for the last 7-8 years. On the other hand RoopChand has admitted that the flour mill is working sincelast 8-9 years. Roop Chand has a house adjacent to ButaSingh Complainant. It was stated that the flour mill iscovered with the roof due to which nuisance or dust do notspread outside. There is no obstruction of any type intraffic also. The learned trial court relied upon DarshanSingh and Anr. v. Malkiat Chand and Ors. 1990 (1)R.C.R. 462 and Zorawar Singh v. Rajinder Singh aliasSher Singh and Anr. 1990 (1) R.C.R. 467 to hold that theproceedings under Section 133 Cr.P.C. cannot be initiatedsince the flour mill has been installed 8-9 years ago.
5. The object of Section 133 Cr.P.C. is to enablean Executive Magistrate to pass orders speedily in a casewhere public nuisance or obstruction has been made in theright of the public at large. The object of Section 133Cr.P.C. is not to enable a complainant to obtain orderto safeguard his civil right nor he can obtain any reliefin connection with his legal rights. The ordercontemplated under Section 133 Cr.P.C. is for the benefitof public at large. The Hon'ble Supreme Court in VasantManga Nikumba and Ors. v. Baburao Bhikanna Naidu (D)By Lrs. and Anr. 1995 Supplement (4) SCC 54 has approvedthe judgment of madras High Court holding that where thealleged nuisance has been in existence for a long periodand the circumstantial evidence did not prove that anurgency existed warranting the taking or actin underSection 133 Cr.P.C., it has been held that no action canbe taken under this section where the obstruction ornuisance has been in existence for a long period and theonly remedy open to the aggrieved party was to move thecivil court. Section 133 is attracted only in case ofemergency and immediate danger to the health or physicalcomfort to the community. While approving the Madras HighCourt Judgment the Hon'ble Supreme Court observed asfollows:
'5. In T.K.S.M. Kalyanasundaram v. KalyaniAmmal, the Madras High Court held that thealleged nuisance would have been in existencefor a long period. The circumstance and theevidence in that case did not prove that anurgency existed warranting the taking or actionunder Section 133. No action can be takenunder this section where the obstruction ornuisance has been in existence for a longperiod and the only remedy open to theaggrieved party was to move the civil court.It was also held that Section 133 is attractedonly in cases of emergency and immediate dangerto the health or physical comfort of thecommunity. Accordingly on the facts in thatcase, it was held that there was no immediatedanger or emergency for the removal of thestructure offending in that case. It is alsosettled law that recourse to Section 133 couldnot be a substitute for the civil proceedingsand the parties should have recourse to thecivil remedy available and should not beencourse (sic encouraged) to taking recourse tothe provisions of Section 133 of the Code.'
6. In view of above judgment of the Supreme Courtas well as the long binding precedents of this Court suchas Pritam Singh etc. Avtar Singh etc. 1973 CurrentLaw Journal 902, Gain Singh and Ors. v. The State ofPunjab and Ors. 1970 PLR 468, 1990 (1) RCR (Criminal)467 (supra) and Madha Singh v. Sadha Singh and Anr.1986 (1) Chandigarh Law Reporter 694. I am of the opinionthat the learned Sessions Judge committed grave illegalityand irregularity while directing the petitioners to removethe alleged nuisance from the spot within a period of 3months either by stopping functioning the Atta Chakki andCotton Ginning Machine or by shifting the same to someother commercial place, outside the residential colony.
7. Learned counsel for the complaint has reliedupon Bhan Singh v. Mohinder Singh 1997 (3) RCR(Criminal) 281. However, the said case is clearlydistinguishable as the complaint in the said case wasfiled within 2 years of the alleged nuisance. Keeping inview the evidence of the complainant as well as thewitnesses produced by the complaint, I am of theopinion that the flour mill having installed 8-9 yearsprior to the filing of the complaint is a good ground todisentitle the complainant.
8. Therefore, I allow the present revisionpetition, set aside the order passed by the learnedAdditional sessions Judge and dismiss the complaint andrestore the order passed by the learned trial magistrate.However, it would be open to the complainant to take suchother action as may be advised for the redressal of hisgrievance.