LexRAM AUTAR versus STATE OF U. P.
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--,-' ... ' 3 S.0.R. SUPREME COURT REPORTS 9 one qf jurisdiction, the High Court was, in our view, competent to exercise the powers vested in it by Art. 227. ·The appeal therefore fails and is dismissed with costs. Appeal dismisseil. B.AM AUTAR v. STATE OF U. P. (J. L. KAPUR, K. C. DAS GUPTA and RAGHU:SAR DAYAL, JJ.) Public Nuisance-Auctioning vegetables in private house- Oarts of seUers kept on public road-Unlawful obstruction, if auctioneers responsible-Noise caused in auctioning-Whether trade injurious to public health and comf ort-Oode of Criminal Procedure, 1898 (Act V of 1898), s. 133. The appellants carried on the trade of auctioning vege- tables in a private house in the Subzimandi quarter. The persons who brought vegetables for sale. kept their carts on the public road where they caused obstruction to traffic. The noise caused by the auctioning caused discomfort to persons living in the locality. An order was passed under s. 133 of the Code of Criminal Procedure restraining auctioning vege- tables in their house. Held, that the order was not justified under s. 133 of the Code. Merely because the appellants carried on auction- ing in connection with which the carts were brought, they could not be considered to have caused the obstruction. In a trade like auctioning which has to be carried on as necessary for the well being of the community some amount of noise has to be borne by the public. Section 133 was not intended to stop such trades merely because of the discomfort caused by the noise. 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 • • . , 196B Dahya Lal v. Rasul Mohammed Abdul Rahim Shah J, 1962 MoyJ. 1962 Ram.Autar •• Stauo/U.P. Das GuplaJ. 10 SUPREME COURT REPOR'.1.'S [1963] G.L. Prem, for the appellants. G.G. Mathur and G. P. Lal, for the respondent. 1962. May 3. The Judgment of the Ca°urt was delivered by 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/' , 3 S.C.R. SUPREME COURT REPORTS 11 It seems to us that this proposition has been put too widely. Section 133 of the Code of Criminal Procedure empowers ·action by the District Magistrate, Sub-Divisional Magistrate or Magistrate 1st class to remove public nuisances in certain circumstances. Two out of the several els. of s. 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
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