Alisher vs State of Haryana and ors.

J.B. Garg, J.

Ali Sher of Mandi Dabwali, District Sirsa has moved the present petition under Section 482 of the Code of Criminal Procedure challenging the proceedings pending against him under Section 133 of the Code before the Sub Divisional Magistrate, Mandi Dabwali at the instance of Amrit Lal and Mohan Lal, respondents No. 2 and 3 regarding the alleged nuisance created by the running of Rui Penja Machine (cotton ginning machine) in a shop owned by the petitioner.

The petitioner has alleged that the aforesaid machine in being run in a commercial area as is evident from a site plan Annexure P6 that he had been paying licence fee to the Municipal Committee, Mandi Dabwali for the years 199091, 199192 and 199293 vide receipts Annexures P7, P8 and P9 that some time back a civil suit for permanent injunction was also instituted by Surinder Kumar son of Mohan Lal respondent No. 3 but it was dismissed on 29.11.91 (Annexure P11) that even now another Civil Suit has been instituted by Mohan lal, respondent No. 3 which is pending in the court of Sub Judge, Ist Class, Mandi Dabwali (Annexure P4) and an application for temporary injunction has been dismissed by means of speaking order dated 16.9.1992 (Annexure P4).

The details given in the petition, referred to above, show that the act of running a cotton ginning machine at the premises in question is not a new one and it had been in existence for the last several years. In T.K.S.M. Klayanasundaram v. Kalyani Ammal and another, 1975(2) MLJ 93 it was observed that no action could be taken under Section 133 of the Code of Criminal Procedure where the obstruction or the nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil court. In Asharfi Lal v. The State, AIR 1965 Allahabad 215, it was observed that action under Section 133 Cr.P.C. could be taken where the obstruction or nuisance was made recently. The factual position as given above, thus, does not justify the initiation of proceedings under Section 133 of the Code of Criminal Procedure.

In the case now in hand, as seen above, the son of Mohan Lal instituted a suit Surinder Kumar v. Ali Sher being civil suit No. 496 of 25.9.91 in the court of Sub Judge, Ist Class, Mandi Dabwali but it was dismissed as withdrawn. The Cotton Ginning Machine was installed in the year 1991 and it had been working in the premises in question owned by the petitioner himself. Here, the civil suit for permanent injunction etc. was instituted on 16.5.92 and is pending and the Municipal committee is also one of the defendants, it would not be fair to proceed against (sic) under Section 133 of the Code of Criminal Procedure as well which should be invoked only in the case of emergency. The conclusion is that the present petition succeeds. It is hereby accepted and the proceedings under Section 133 of the Code of Criminal Procedure pending in the court of SubDivisional Magistrate, Mandi Dabwali are hereby quashed.