' Through this Constitutional petition, the petitioner seeks quashment of the order, dated 17-2-1992 passed by learned Additional Sessions Judge, Bahawalpur whereby he set aside the order of the District Magistrate, dated 28-10-1991 by accepting Criminal Revision of the respondents.
2. Brief facts giving rise to the abovenoted petition are that the respondents own flour mill (Chakki) chillies grinding machine and a cotton ginning "Painja" in a residential area. Petitioner Ghulam Rasool moved an application to Commissioner Bahawalpur Division stating therein that the respondents' mills is omitting dust and other substance which was injurious to health. It was further stated in the application that on account of the respondents' business activity the narrower street is blocked and women-folk have great difficulty in passing through. The Commissioner, Bahawalpur Division sent the application/complaint to Deputy Commissioner, Bahawalpur for appropriate action the D.C. In turn referred the matter to Assistant Commissioner, Hasilpur for necessary action. On direction from the A.C., the concerned Naib-Tehsildar visited the spot, recorded statement of the parties as well as their witnesses whose report is as follows: {{URDU TEXT}} ' However, the Naib-Tehsildar had also reported that the parties had also a dispute over the location of a lavatory which is in front of the mills' door and the owner of the said mill had demanded that the same should be removed. It appears that a report was called from the Medical Officer, Khairpur Tamiwali who reported:-- "Undersigned visited the mini industry in the company of Medical Officer-II and Chief Officer of the Town Committee on 24-2-1990 at 1-00 p.m. During inspection the cotton "Painja" is only polluting the environment."
' The report of the Naib-Tehsildar is Annexure "B" and that of the Medical Officer Annexure "F' with the quashment petition. The matter was ultimately reported to the District Magistrate from where the earlier reference was received for inquiry and necessary action. The District Magistrate, Bahawalpur vide his order, dated 28-10-1991 directed that since the respondents had not tendered the requisite licence for running the cotton "Painja" and Chillies Grinding machine before him, he had no right to carry on the business. The Town Committee was asked to redress petitioner's grievance by proceeding against the respondents for having installed a dangerous industry in the residential area. This order of the District Magistrate was challenged in the Sessions Court and the learned Additional Sessions Judge vide the impugned order accepted the revision and set aside the order of the District Magistrate. The main grounds which found favour with the learned revisional Ccurt were that the respondents' mill had a valid licence issued by the Municipal Committee; that the District Magistrate did not study the file to see the licence and that the District Magistrate did not adopt the procedure provided in section 133, Cr.P.C. And, therefore, the order in question was not maintainable.
3. The learned counsel for the petitioner has assailed the order of the learned revisional Court on the following grounds:--
(i) That the learned revisional Court has not considered the report of the Naib-Tehsildar which is based on the statements of witnesses recorded at the spot and similarly the report of the Medical Officer has also been totally ignored.
(ii) That that so-called licence for running the mill was meant only for Chakki (flour mill) and not for Chillies Grinding and Cotton "Painja".
(iii) That the impugned order suffers from non-reading and misreading of material evidence on record.
4. The learned counsel for the respondents has defended the order and has submitted that:--
(i) The respondents are doing business under a valid licence issued under section 73 of the Local Government Ordinance, 1979.
(ii) The petitioner has a remedy to move the Local Council for an action under subsection (1) of section 73 of the Local Government Ordinance.
(iii) The District Magistrate had. Passed the order without recording any evidence which is contrary to the mandatory provision of section 133, Cr.P.C.
(iv) In this regard the learned counsel referred to the following judgments:--PLD 1969 Lah. 680, PLD 1978 Quetta 66 and PLD 1981 AJ&K 7.
5. Having heard the learned counsel for the parties and having perused the record, I find that the District Magistrate did refer the matter to a Revenue Officer for inquiry and also sought a report from the Medical Officer but there is nothing to indicate that the reports of these two officers were over considered by him. The order of the District Magistrate is neither a speaking order nor happily worded and the operative part of the same reads as under:- {{URDU TEXT}}
6. A bare reading of section 133, Cr.P.C. Would indicate that a Magistrate before he passes a final order he has to pass a conditional order which in fact is a kind of show-cause notice to the person who is indulging in an activity which has prompted proceedings under the aforementioned section.
The first part of subsection (1) of section 133, Cr.P.C. Refers to various instances and situations which may constitute a public nuisance and thereafter stipulates a course to be followed by the Magistrate who is seized of the matter, which reads as under:-- "Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation ... Or owning, possessing or controlling such building ... Structure... Within a time to be fixed in the order, to remove such obstruction or nuisance; or to desist from carrying on, ... Such trade or occupation; or ... Or, if he objects to do so, to appear before himself or some other Magistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided."
It is only after complying with this provision that the Magistrate can pass an absolute order in terms of sections 136, 137 and 139 of the Criminal Procedure Code. The order of the District Magistrate, therefore, suffers from patent illegality. However, the order of the learned revisional Court is also not tenable in law as the learned Additional Sessions Judge did not appreciate that the valid licence is no bar to proceedings under section 133, Cr.P.C. If the trade, business, occupation, activity or action complained against constitutes a public nuisance. I am fortified, in my view, by a judgment of the Dacca High Court reported as S.H. Mahmud v. Muhammad Jahangir and another PLD 1968 Dacca 823 and Lalman v. Ch. Bishambhar Nath AIR 1932 All.
159. Similarly I am not impressed by the argument of the learned counsel that the petitioner has a remedy under the Punjab Local Government Ordinance to proceed against the respondents as the existence of such a remedy does not denude the District Magistrate of his powers to proceed under this section.
7. The powers of District Magistrate under section 133, Cr.P.C. Is an important provision which empowers him to remove various facets of the public nuisance. The Legislature in its wisdom has clothed this important functionary of the State with these powers to provide speedy relief to the public who may have to confront a public nuisance in one form or the other. In contemporary age this provision has assumed a greater significance. In an area of population explosion, industrial growth, fast expanding cities, sky-rocketing sky scrapers, instances of public nuisance and environmental pollution do multiply and they become worst confounded by the lack of civic sense and the slow and insufficient pace of agencies entrusted with the task of providing civic amenities and looking after matters of public hygiene. The District Magistrate has to play a dynamic role while acting under the aforementioned provision of law and defining its parameters. Halsbury's laws of England (Fourth Edn. Vol.34) para. 305 defines Public Nuisance as:-- "A public nuisance is one which inflicts damage, injury or inconvenience on all the Queen's subjects or on all members of a class who come within the sphere or neighborhood of its operation.
However, it may affect some to a greater extent than others."
In terms of parameters to be spelt out under section 133, Cr.P.C. Instances of public nuisance may include:--
(i) the unlawful cutting of a public road;
(ii) the placing of erections on roads;
(iii) the passage of cattles through narrow streets thereby obstructing public way;
(iv) the effect of overflow of severe water rendering the road unfit to be used;
(v) all encroachments on public roads, pathways and recreated grounds and parks;
(vi) an obstruction in the channel of a public canal;
(vii) a noise during some lawful trade which is injurious to the physical comfort of the community;
(viii) discharge from a factory into a river or canal of such a substance which may be injurious to the physical comfort of the community;
(ix) accumulation of Municipal waste like sewage, refuse sludge and human excreta; and
(x) such a use of loudspeakers which causes general public annoyance and discomfort in an area.
' The existence of any of these instances would warrant an action on the part of the District Magistrate but while doing so he has to proceed strictly in terms of procedure laid down.
8. In view of what has been discussed above, the quashment petition is accepted and the order of the learned Additional Sessions Judge, dated 17-2-1992 and that of the District Magistrate, dated 28-10-1991 are set aside. The application of the petitioner shall be deemed to be pending before the District Magistrate, Bahawalpur who shall make a necessary order, record such evidence as he may deem proper and decide the same within a period of one month from the date of their appearance before the District Magistrate. The parties are directed to appear before him on 16-10- 1994. The record received in this case shall be returned forthwith.
9. The question as to what constitutes "public nuisance" is a matter of general public importance.
The Registrar of this Court is, therefore, directed to send copy of this order to all the District Magistrate in the Punjab for their information.