S.M Shah, J.:— This is an application filed by the applicant against the order passed by the learned Additional District Magistrate, East Khandesh, dismissing his revision application preferred against the order passed by the learned Sub-Divisional Magistrate, Amalner Division, allowing the application made by opponent No. 1 by which he claimed reliefs under s. 133 of the Criminal Procedure Code.

2. It appears that on November 21, 1957, opponent No. 1, Onkar Vyankat Patil, applied to the District Magistrate, East Khandesh, at Jalgaon, complaining that the flour mill owned by the petitioner Murlidhar Bhila Patil and which was installed close to his house was a cause of nuisance to him as also to the other residents in the locality. He alleged that the operation of the flour mill created vibrations and those vibrations were likely to cause danger to the people residing nearby.

3. After due enquiry into the allegations made by opponent No. 1, the Additional District Magistrate, East Khandesh, at Jalgaon, forwarded the papers of the case to the Sub-Divisional Magistrate, Amalner Division, for taking action under s. 133 of the Criminal Procedure Code. Proceedings under that section, accordingly, were started and a conditional order directing the flour mill owner to remove the mill within a period of two months or to appear before the Sub-Divisional Magistrate, Amalner Division, to show cause why that order should not be enforced, was issued on August 14, 1959. The petitioner appeared before the learned Sub-Divisional Magistrate and pleaded that he did not want to remove the flour mill as directed by the order inasmuch as, according to him, the working of his mill did not cause any nuisance as alleged. The learned Sub-Divisional Magistrate, therefore, proceeded further with the case and both the applicant as well as the opponent (the present petitioner) led evidence of witnesses in support of their respective contentions. The witnesses, who gave evidence on behalf of the owner of the flour mill i.e the opponent, asserted that the operation of the mill did not cause any nuisance to the residents of the surrounding houses and also that it was not detrimental to the comfort of the people in the locality. The witnesses, who were examined on behalf of the applicant, on the other hand, deposed that the operation of the mill did create a nuisance to the surrounding houses and the people living therein.

4. In that state of the evidence, the learned Sub-Divisional Magistrate found it difficult to decide the truth or otherwise of the allegations made by the applicant in his application, and in view thereof he decided to take a personal inspection of the site, because he thought that he could not come to a proper decision unless he personally inspected the site. Accordingly, he visited the site on March 19, 1959, when the flour mill was actually in operation and found that jerks were caused due to the working of the flour mill to the surrounding houses within an area of 100 feet. In view of this finding the learned Sub-Divisional Magistrate observed in his order dated May 1, 1959, as follows:

“I am, therefore, satisfied that the case of the complainant is a genuine one and there is possibility of danger being caused to the surrounding houses and that in public interest it is necessary to enforce the conditional order dated 14-8-1959.”

5. Accordingly, he made the order absolute under s. 137(3) of the Criminal Procedure Code.

6. Against that order, it appears, the present petitioner instead of going to the District Magistrate came to this Court by a revision application dated May 25, 1959. That application was, however, summarily dismissed by this Court on May 29, 1959. On June 1, 1959, the petitioner filed a revision application in the Court of the District Magistrate, East Khandesh, against that very order, and it was heard and decided by the learned Additional District Magistrate, East Khandesh. The learned Additional District Magistrate, as it appears from the order, refused to interfere will the order passed by the learned Sub-Divisional Magistrate stating that a Court sitting in revision could not interfere with the decision given by the lower Court on findings of facts and that, therefore, there was no propriety in making a reference to the High Court. It may be noted, however, that the learned Additional District Magistrate in course of his order seems to have erroneously stated that the learned Sub-Divisional Magistrate had held that it was a case of public nuisance and that it was necessary to enforce the conditional order which he had passed. The relevant portion of the order passed by the Sub-Divisional Magistrate has been quoted above and it will clearly appear therefrom that the learned Sub-Divisional Magistrate gave no finding that it was a case of public nuisance, but on the contrary the order that was already passed by him on August 14, 1959, was made absolute only on the ground that there was a possibility of danger being caused to the surrounding houses and that, therefore, in public interest it was necessary to enforce the conditional order. At any rate, the learned Additional District Magistrate dismissed the petitioner's revision application, and it is against the order dismissing his application that the petitioner has filed the present revision application.

7. A preliminary objection was raised by Mr. Vaidya on behalf of opponent No. 1 here (the original applicant) that inasmuch as this Court had already rejected the revision application filed by the petitioner on May 29, 1959, no further application in revision could be entertained by this Court. It was contended that the present revision application if entertained and decided would amount to reviewing the order of this very Court which could not possibly be done and that, therefore, the present revision application should be rejected as being untenable. In answer to this contention, the learned advocate for the petitioner contended that although it was true that a revision application to this Court was filed as alleged by the opponent and although it was also true that it was dismissed by this Court on May 29, 1959, he had produced an affidavit of the learned advocate who appeared at the time of admission of that application which stated that application was rejected because the petitioner had not approached the District Magistrate in the first instance and that, therefore, that application was not dismissed on merits.

8. Now, looking to the endorsement of the learned Judge who rejected that application, it is clear that it was merely rejected and, if this endorsement alone was to be construed by itself, then, surely, the contention raised by Mr. Vaidya should prevail. But it does sometimes happen that either the advocate appearing for the applicant at the time, of the admission of the application through an oversight fails to point out to the learned Judge that instead of rejecting the application he should be allowed to withdraw it so that he could file a proper application before the learned District Magistrate, or perhaps the learned Judge himself might over-look that aspect of the matter.

9. If, therefore, in the circumstances of the case, the endorsement “rejected” might mean one or the other, I do not see any reason why I should not construe that endorsement in the light of the affidavit made by the advocate and, if that is done, I must hold that the learned Judge, before whom that application appeared for admission, rejected it merely on the ground that the petitioner had not approached the District Magistrate before he came to this Court. In my opinion, therefore, I cannot accept Mr. Vaidya's contention and cannot reject the present application on the preliminary ground urged by him.

10. Coming to the merits of the order passed by the learned Sub-Divisional Magistrate and confirmed by the learned Additional District Magistrate, it seems to me that the order falls far outside the scope of s. 133 of the Criminal Procedure Code. That section contemplates an order of the type that has been made by the Sub-Divisional Magistrate inter alia on the ground that the conduct of any trade or occupation or the keeping of any goods or any merchandise is injurious to the health or physical comfort of the community and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated. In this case, we are concerned with the trade or occupation of the petitioner. It is common ground that it is the petitioner who has been carrying on the flour mill in question as his trade and the complaint that is made by the opponent is only in respect of the working of this flour mill. Now an order under this section could be justified only if the conduct of the trade is injurious to the health or physical comfort of the community. These words necessarily mean that the conduct of the trade is injurious in present to the health or physical comfort of the community. It follows, therefore, that a distant possibility of an injury to the health or physical comfort of the community by reason of the conduct of any particular trade would not justify an order being made under this section. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or the occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade or occupation is in fact injurious to the health or the physical comfort of that community, in my opinion, an order under s. 133 cannot be passed. Reference may be made in this connection to a decision of the Allahabad High Court in Gokul v. King-Emperor . [1924] A.I.R All. 667., where it has been observed as follows:—

“The section deals with the condition of things at the time when the inquiry is held. If at such a time a house or branch of a tree is likely to fall and thereby endanger the life of passers by action under the section is justified; the section is not meant to apply to what may happen at some indefinite time in the future or under quite abnormal circumstances.”

11. Reference may also be made to a recent ease, Rameshwar Prasad v. State of Bihar . [1958] A.I.R Patna 210., where Imam J. observed as follows:—

“The whole object of section 133, the Criminal Procedure Code, is that the public should not suffer and that such dangers or obstructions caused by the members of the public should be removed at the earliest possible moment. The proceeding under S. 133 is not to be taken in a case where there has been a long user. It is not intended that the proceeding under that section should be substituted for a civil suit in a civil Court.” This being the state of the law as regards s. 133 of the Criminal Procedure Code, it is difficult to see how, in the circumstances of the present case, any such order as has been passed by the learned Sub-Divisional Magistrate could ever be passed. The learned Sub-Divisional Magistrate has not found that any nuisance was caused by working of the flour mill. He has also not found that there was any immediate danger to the health of the people living in the locality. All that he has found is that there was a possibility of danger being caused to the surrounding houses, and that possibility of danger, according to him, called for an order of the kind that he passed, in his opinion, in public interest. Thus, obviously, his finding has no reference whatever to the injury to public health or physical comfort of the community in that locality. His finding is directed more to safeguard the property of the people in that locality rather than their health or physical comfort and, even there, he only envisaged a very distant possibility of a danger being caused to the surrounding houses. It follows, therefore, that he did not find any immediate danger or injury to the health or the physical comfort of the people of the locality at all. If that is so, I do not see how the order that he has passed under s. 133 of the Criminal Procedure Code could be justified. The jerks to houses which, according to his finding, were caused by the working of the flour mill are not uncommon in these days of mechanisation. In a city like Bombay by the running of heavy buses on the public roads almost every building experiences heavy jerks. That by itself, however, cannot enable a landlord to complain to the District Magistrate or the appropriate authority that the buses running on the public roads should be completely stopped. Even assuming that an order could be passed under the section to safeguard the properties of the people in the surrounding locality, the danger even to those properties should be so imminent as to call for the intervention of the Magistrate under s. 133 of the Criminal Procedure Code. This does not mean that the people of the surrounding locality should wait until the houses actually collapse. They could generally have an estimate of the amount of damage likely to be caused to their houses for one reason or the other, and it is legitimate to presume that they would always be alert in taking proper precautions in good time before the damage actually occurs. Besides, in this case, it has been shown on the evidence that the mill has been working for the last about six years and in view of that fact and in the absence of any reliable evidence it is difficult to say that the working of the mill either amounted to a nuisance or caused any damage or injury to the public health or physical comfort of the people in the locality. It is surprising that all of a sudden opponent No. 1 should have come forward with these allegations which, however, he was not able to substantiate by any reliable evidence. In these circumstances, in my opinion, it is necessary in the interest of justice to interfere with the order that has been passed by the learned Sub-Divisional Magistrate and confirmed by the learned Additional District Magistrate. I find that the order is wholly unjustified looking to the circumstances of the case and the scope of the section under which it was passed. The order is, therefore, set aside. The application is allowed and the rule is made absolute.

12. Order set aside.