K. Ramaswamy and; R.M. Sahai, JJ.
1. Leave granted.
2. This appeal by special leave is directed against the judgment of the Bombay High Court in Criminal Appeal No. 1078 of 1991, dated 9-3-1993 affirming the order passed by the Sessions Judge and the Sub-Divisional Magistrate under Section 133 of the Code of Criminal Procedure, 1973 for short ‘the Code’. The admitted facts are that the appellants are tenants in 15 shops in Jalgaon Municipality. A notice under Section 133 was issued on 1-11-1983 in Criminal Case No. 2 of 1976 stating that from the material placed before him the Sub-Divisional Magistrate i.e. SDM was satisfied that the shops are in a very dilapidated condition which are beyond repairs and that therefore they are immediately required to be removed (under Section 133 of the Code). The appellants have objected to and adduced evidence. On consideration thereof, the learned Magistrate held that unless the shops are demolished there is imminent danger to the neighbouring residents, accordingly directed demolition of 15 shops. On revision, the Sessions Judge affirmed the order as well as by the High Court. The question, therefore, is whether the facts of this case would warrant to invoke Section 133 of the Code. Section 133 of the Code reads thus :
“133. Conditional order for removal of nuisance.— (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers—
* * *
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and
that in consequence the removal, repair or support of such building, tent or structure or the removal or support of such tree, is necessary; or
* * *
such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order—
* * *
(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees;”.
3. Nuisance is an inconvenience materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. It may be public or private nuisance. As defined in Section 268 IPC, public nuisance is an offence against public either by doing a thing which tends to the annoyance of the whole community in general or by neglect to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity. On the alternative it causes injury, obstruction, danger or annoyance to persons who may have occasion to use public right. It is the quantum of annoyance or discomfort in contra distinction to private nuisance which affects an individual is the decisive factor. The object and public purpose behind Section 133 is to prevent public nuisance that if the Magistrate fails to take immediate recourse to Section 133 irreparable damage would be done to the public. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under Section 133 is not intended to settle private disputes or a substitute to settle civil disputes though the proceeding under Section 133 is more in the nature of civil proceedings in a summary nature.
4. A reading of Section 133 would clearly indicate that the Executive Magistrate has been empowered, on receiving a report of the police officer or other information and on taking such evidence as he thinks fit that any building, tent or structure is in such a condition that, due to failure to remove, disrepair, or without support it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by and that in consequence he is empowered to specify the time to remove, repair or provide support to such building, tent or structure or tree. Two options are open to the Executive Magistrate on considering whether structure, building etc. is in such a dilapidated condition which requires to be demolished immediately which brooks no delay to avert danger to the life and property of the neighbourhood or passers-by unless they could be suitably repaired or supported so as to avert danger to the public or have it removed, etc. The condition precedent to exercise the power under Section 133 is the imminent danger to the property and consequential nuisance to the public. The removal of the building is so urgently required as it is likely to fall and cause injury to persons living or carrying on business in the neighbourhood or passers-by. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The dangerous condition of the building is in praesenti but not in future. The section is limited to injuries likely to be caused to the passers-by or persons living or carrying on business in the neighbourhood. Each case has to be considered in the light of the facts and circumstances obtained in each case.
5. In T.K.S.M. Kalyanasundaram v. Kalyani Ammal1, the Madras High Court held that the alleged nuisance would have been in existence for a long period. The circumstance and the evidence in that case did not prove that an urgency existed warranting the taking of action under Section 133. No action can be taken under this section where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil court. It was also held that Section 133 is attracted only in cases of emergency and immediate danger to the health or physical comfort of the community. Accordingly on the facts in that case, it was held that there was no immediate danger or emergency for the removal of the structure offending in that case. It is also settled law that recourse to Section 133 could not be a substitute for the civil proceedings and the parties should have recourse to the civil remedy available and should not be encourse (sic encouraged) to taking recourse to the provisions of Section 133 of the Code.
6. We have seen the evidence in this case. The expert examined in this case on behalf of the respondents had categorically admitted in his evidence, as noted by the Magistrate himself, that there is absolutely no danger to the shops of falling down. The repairs have already been done according to the order passed on 29-7-1982 by the civil court. Hence, there is no danger to the customers if the dilapidated walls had fallen down. Other witnesses, namely, Madhukar Pandit Chaudhari, Chantram Chindhu Gokaple examined on behalf of the respondents in their cross-examination have admitted that they have no idea about the instant condition. The Magistrate concluded that the building is an old one and is in a dilapidated condition and its walls are likely to fall and, therefore, need to be removed and the structure needs demolition to avoid fatal accidents in future. It is contended by the respondents that apart from that there is also evidence which shows that some of the shops need repair and across the bar it is stated by Mr R.K. Jain, learned Senior Counsel for the appellants that they are prepared to repair the shops without claiming any damages from the respondents, at their own costs and there will be no danger to the property. We have seen the photographs of the buildings and shops placed on record. On a consideration of the matter, it would appear that it is not so imminently dangerous as to require the building to be demolished immediately exercising the power under Section 133 of the Code. Thus considered, we find that there is no warrant in exercising the power under Section 133 directing demolition of these 15 shops in question. The appeal is accordingly allowed. It is needless to mention that the respondents are at liberty to supervise the repairs that is to be carried on by the appellants themselves.