The section refers to a physical obstruction or nuisance which is capable of being removed and is a potential cause of public nuisance. Thus the sole object of the section is to ensure that dangers or obstructions which are a cause of public nuisance should be removed at the earliest.
Where there existed a public nuisance in a locality due to open drain, heaps of dirt, pits and public excretion by human beings for want of lavatories and consequently breeding of mosquitoes, the Court could require the Municipality under Section 123 of the Municipality Act to take affirmative action to remove the cause of nuisance.
The power under this section may be exercised by the Magistrate on receipt of a police report or on information derived from any other source, under six circumstances enumerated in clauses (a) to (f) in sub-section (1).
The Magistrate, before passing an order under this section for removal of nuisance, should hear the person or party against whom such order is made and if he contests the existence of any public right, it should be investigated and inquired into.
Thus, where the Magistrate on receiving a complaint regarding running of a khatal did not give a hearing to petitioner and the local people about the actual existence of physical discomfort or health hazard on account of the Khatal, the order was held to be illegal, being contrary to the provisions of Section 133.
The Magistrate can make an order for removal of unlawful obstruction or nuisance under Section 133 (l)(a) where there exists a right of way to public, which is being obstructed or on which nuisance is made or it is a public place where nuisance is caused.
Where existence of the public right is denied and there is reliable evidence in support of such denial, the Magistrate should refrain from proceeding under this section until the existence of the right claimed has been determined by a competent Court.
It must, however, be noted that the orders passed under this section (and Sections 145 & M7) of the Code are merely temporary orders and they are co-terminus with the judgment or decree of the civil Court. No sooner the civil Court declares ‘he right of the parties, the temporary orders rendered by the Magistrate under Section 133 came to an end forthwith.
The section does not contemplate an action being taken in regard to anticipated, obstruction or nuisance. It is meant for removal of only those emergent evils which are either actually in existence or which are imminent.
As to the word ‘public’ used in context of ‘public’ right in Section 133 it may include a class or community residing in a particular locality.
A public right does not depend upon the number of individuals who enjoy it but it must be enjoyed by unascertainable number of people, who may be categorised as a class or community. Where the nuisance was a cause of inconvenience to only the members of a particular family, it did not amount to public nuisance. The provisions of this section could not be used as a substitute for a civil litigation for securing settlement of private disputes not affecting general public.
The Kerala High Court, in C.V.M. Velappa v. V.N. Narayan Nair, has heal that rights of riparian owners being private rights, the provisions of Section 133 have no application to them.
In Bajrang Lai Singhania v. Manilal Singhania, the Magistrate passed orders against a person residing in a Dharamshala to vacate the premises. The aggrieved person contended that he had a right to reside there as it was a joint family property. Held, that the Magistrate had no powers to direct vacation of the premise under Section 133; instead he could have directed abatement of nuisance or removal of obstruction.
The Supreme Court in Suhelkhan Khudyarkhan v. State of Maharashtra, reiterated that proceedings under Section 133. Cr. P. C. are not meant to settle private disputes between different members of public.
In the instant case, a religious bookshop was being run by appellants in a tin-shed. The respondents filed a complaint for removal of the shop and the Sub-divisional Magistrate passed a conditional order for removal of nuisance, i.e., shop.
The appellants challenged the order of SDM and contended that the removal was without jurisdiction which was rejected by the High Court. On appeal, the Supreme Court found no reason to interfere and the appeal was dismissed.
The Apex Court in this case further made it clear that the word ‘community’ in clause (b) of Section 133 (1) cannot be taken to mean residents of a particular house only, instead it means something far wider, that is, public at large or the residents of an entire locality. In order to bring an application under Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public.
Clause (b) deals with occupations or trades which are inherently dangerous to health or physical comfort. Thus stocking of fodder on certain plot in a residential locality was held to be a pollutional hazard and, therefore, an order directing removal of this nuisance was held to be valid.
Although the term ‘public place’ occurring in Section 133 (l)(a), has not been defined in the Code but generally speaking, it means a place to which the public have access by right, permission, usage or otherwise.
In Chandra Shekhar Bhatt v. State there was unlawful obstruction over public place. Evidence adduced by parties made it amply clear that out of the land belonging to petitioner, some portion of it was transferred to Public Works Department.
There was public road on the disputed plot wherein the petitioner had put obstructions by keeping building material thereon. The order directing the petitioner, passed after issuing notice and hearing the parties was held to be proper.
The Supreme Court in C.A. Avarachan v. C.V. Sriniwasan, observed that for the exercise of powers under Section 133 it is necessary for the Magistrate to draw up a preliminary order. Therefore, the order issued by Magistrate to permanently close down a quarry without drawing up a preliminary order and without following the procedure provided under Section 138 was held to be illegal and void.
In Ram Avtar v. State of U.P., the Supreme Court held that the conduct of a trade in vegetables was not injurious to health nor was it a cause of physical discomfort to the community. Therefore, an order restraining such trade under Section 133 was not at all justified. In the instant case, the appellants carried on trade of auctioning vegetables in a private house. The persons who brought vegetables for sale kept their carts on the public road which caused obstruction to traffic.
The noise caused due by the auctioning was a cause of discomfort for persons living in the locality. The Magistrate passed orders under Section 133 restraining auctioning of vegetable in that private house.
In appeal against the said order, the Apex Court held that trades 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. The order passed by the Magistrate under Section 133 was, therefore, not justified and hence deserved to be quashed.
Where the Magistrate ordered removal of a glucose manufacturing unit from a residential area as it was a nuisance causing disturbance to the people of the locality, the order was within the ambit of Section 133 of the Code.
In Ramlal v. State of Rajasthan, a complaint was filed by the landlord that his tenant who was running bakery shop in rented premises has raised the quantity of furnace without permission which created public nuisance, smoke and also increased heat thus causing damage to walls and roof of nearby houses.
The trial Court held that it could be a case of private nuisance but cannot be public nuisance and the landowner could seek redress in a civil Court by suing the accused for damages. However, the High Court noted that the order passed by the Revisional Court holding it not to be a public nuisance without examining as to whether the tenant had really increased the furnace was liable to be set aside.
The Supreme Court has ruled that instead of prohibiting the trade etc. completely, the Magistrate may issue orders under Section 133 to regulate the same in such a way that it ceases to be a cause of public nuisance.
On the complaint of the landlord that bad smell was corning from the tenanted room which was locked since five months, the Magistrate ordered to break open the room and remove the goods without notice to the tenant. It was held that the action of the Magistrate was not justified under this section. He ought to have issued notice to the tenant before making an order under Section 133 of the Code.
The Magistrate, while passing a conditional order under this section is not bound to take evidence since the orders so passed pertain to a ‘criminal trial’.
It must however, be noted that an order passed under Section 133 differs from the one passed under Section 144 in one material aspect. The order under Section 133 is a conditional order in the sense that it does not operate if the person shows a valid cause, but the order made under Section 144 is an absolute order. That apart, an order under Section 133 is to be directed to, and served on, persons individually whereas under Section 144; it may be directed to public generally, to abstain from doing a particular act.
The Kerala High Courts in Kolainbil Khader v. State of Kerala ruled that the mischief which is sought to be remedied under Section 133, Cr. P.C. must be of specific nature falling within clauses (a) to (f) of Section 133 (1). The petitioner’s apprehension that standing trees, with no likelihood of failing, obstructs ‘he growth and development of his cultivation in his property and hence needed to be cut off and removal was ill- founded and therefore, had no cause of relief under Section 133.