1. A proceeding Under Section 133 of the Code of Criminal Procedure. 1973 (in short, the 'Code') was initiated nearly a decade ago where two neighbors are involved.

2. Background facts sans unnecessary details are as follows :

Petitioner a resident of Sorada in the district of Ganjam carries on business in Fertilizer since 1972 For that purpose he stores Fertilizer in his premises. Opp. party No. 3 is the immediate neighbour of the petitioner. He made complaint on the basis of which a station diary entry on 15-3-1984 at the Sorada Police Station was made. His allegations were that the storage of Fertilizer by the petitioner was causing damage to his house and was causing discomfort and injury to the health of his family members. On the basis of such station diary entry, the Officer in-charge of Sorada Police Station submitted a report to the Subdivisionsl Magistrate, Bhanjanagar stating inter alia that he had seen the place of storage of Fertilizer by the petitioner and also the house of the complainant and inspected the wails in question. It was suggested that if the storage place would be changed to the western side where the petitioner has another house, there would be no trouble. Accordingly he prayed for an order Under Section 133 of the Code to direct the petitioner to change the store to the western side of the petitioner on the ground of health as well as to prevent damage to the walls of opp. party No. 3's dwelling house. The Subdivisional Judicial Magistrate initiated a proceeding Under Section 133 of the Code and issued notice to the petitioner. It was indicated therein that he was satisfied that the petitioner was storing Fertilizer in his house and such storage was injurious to the health of opp. party No. 3's family and was causing damage to the walls of the said opp. party which may result in collapse of the roof. The petitioner submitted his reply and resisted the proposal to change the storage place. By order dated 1-5-1984 the Magistrate held that the provisions of Section 133(1)(b) of the Code were not attracted, because the opp. party No. 3 alone was involved. It was, however, felt necessary to impose restriction on the business of storage of Fertilizer, and direction was given to store ten bags of Fertilizer in the maximum in his show-room which was adjacent to the house of present opp. party No. 3. Against the said order the petitioner filed a criminal revision which was disposed of by the learned First Additional Sessions Judge, Ganjam, who remanded the matter for fresh disposal. After remand the Subdivisional Magistrate held that the evidence on record was sufficient to show that the wall of opp. party No. 3 was not likely to collapse. He, however, held that the storage of Fertilizer was likely to create offensive smell affecting the physical comfort of the neighbours and community in genera! and, therefore. directed removal of the stock of Fertilizer. Before proceeding further, it is necessary to note that In the meantime father of opp. party No. 3 initiated a proceeding Under Section 133 of the Code on the same ground as pressed by opp. party No. 3 in the Court of Tahasildar-cum-Executtve Magistrate, Sorada, A report was called for from the Asst. Disrict Medical Officer about the health hazard due to storage of Fertilizer by the petitioner in his house. The said authority submitted a report to the Tahaildar cum- Executive Magistrate to the effect that there was no offensive smell of Fertilizer at the house of the petitioner adjacent to opp. parly No. 3's house and there was very little possibility for the same since the room of the petitioner was having a ceiling and the house of opp. party No. 3 was a double storied house. It was observed that the damage of plaster in the transverse wall might have been caused due to improper maintenance, and other factors. The Executive Magistrate by his order dated 7-11-1985 directed closure of the proceeding on the ground that no damage was caused to the house of opp party No. 3 on account of Fertilizer by the petitioner. As the proceeding initiated at the behest of opp. party No. 3 was adjudicated adverse to the petitioner he filed a criminal revision, which was disposed of by the learned First Additional Sessions Judge, Bethampur, upholding the decision of the Subdivisionsl Magistrate. The report submitted by the Asst. District Medical Officer in the other proceeding was held to be inconsequential.

3. According to the learned counsel for the petitioner, the proceeding Under Section 133 of the Code is misconceived, as there is not even a whisper that a community was affected , which is the sine qua non for application of the provisions of Section 133(1 Kb). Further, it is staled the Song passage of time shows absence of any b3sis for concluding injury or hazard to health as claimed by opp. party No. 3. The stand of opp. party No. 3. on the other hand, is as to what would ' constitute a community would depend on facts of each case and a strailjacket formula cannot be laid down. Since health hazard to his family by obnoxious material has been caused, a narrow meaning to the expression 'community' would be counter productive. So far as the passage of time is concerned, it is submitted that, that does not dilute the continuity of inconvenience.

4. Section 133 so far as it is relevant for our purpose reads as follows :

"133. Conditional order for removal of nuisance-(1) Whenever a District Magistrate, or a Subdivisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-

A proceeding Under Section 133 is of a summary nature.1t appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquility. The Chapter has been classified into four categories. Sections 129 to 132 come under the category of "unlawful assemblies'. Sections 133 to 143 come under the category of "public nuisances". Sec 144 comes under the category of "urgent cases of nuisance or apprehended danger"; and the last category covers Sections 145 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds, i.e., (i) Public; and (ii) Private 'Public nuisance' or 'common nuisance'as defined in Sec 268 of the Indian Penal Code, 1860 (in short, IPC*) is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. 'Private nuisance', on the other hand affects some individuals as distinguished from the public at large. The remedies are of two kinds- civil and criminal. The remedies under the civil law are two. The one is Under Section 91 of the Code of Civil Procedure, 1908. Under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings Under sections 133 to 144 of the code, and the third relates to remedies under special or local laws. Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this section shall be called in question in any civil Court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm; and, therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings Under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. Where the alleged obstruction is an old one, the matter is one to be decided by a Civil Court, and Section 133 is not intended to be applied in such cases to avoid the necessity of filing a civil suit. A comparison between the provisions of Section 133 and 144 of the Code shows that while the former is more specific the latter is more general. Therefore, nuisance specially provided in the former section are taken out of the general provisions of the latter section. The proceedings Under Section 133 are more of the nature of civil proceedings than in the criminal nature. Section 133(t)(b) relates to trade or occupation, which is injurious to health or physical comfort. It deals with itself physical comfort to the community and not with those which are in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word 'community' in Clause (b) of Section 133(1) cannot be taken to mean residents of a particular house, It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with "Public Nuisances" is indicative of this aspect. It would, however depend on the facts situation and it would be hazardous to lay down any straitjacket formula.

The guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here :

"All power is a trust-that we are accountable for its exercise-that. from the people, and for the people, all springs and all must exist"

. The conduct of the trade must be injurious in present/ to the health or physical comfort of the community. There must, at any rate, be an imminent clanger to the health or the physical comfort of the community in the locality in which the trade or 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, an order Under Section 133 cannot be passed. A conjoint reading of sections 133 and 138 of the code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act Under Section 133.

5. The Courts below have not come to a definite conclusion about any injury to the health or physical comfort of the community. They have not given any definite finding in that regard. Inconvenience to residents of a particular house cannot be construed to mean injury to health or physical comfort of the community. Exceptions have to be brought on record to show as to how community needed protection. We remit the matter back to the Subdivisional Magistrate, Bhanjanagar. Ha shall permit the parties to lead evidence if they so choose in respect of. their respective cases. The Magistrate shall take into consideration the the plea of the petitioner that the very fact that opp. party No. 3 did not raise any objection though he was carrying on business since 1972, for more than a decade and for the first time lodged, the complaint in 19S4 shows hollowness of the claim. It is stated that opp. party No. 3 and his father were carrying on the business of Fertilizer in their rooms which are adjacent to the petitioner's rooms, and that itself shows that the storage of Fertilizer does not cause any inconvenience and/or nuisance as alleged- The learned counsel for opp. party No. 3 submitted that the place where opp. party Ho. 3 and/or his father carry on business of Fertilizer are at a distance and not in close proximity to the house of the petitioner. Those are aspects which shall be considered by the Subdivisonal Magistrate. We express no opinion in that regard. The order of the Subdivisional Magistrate passed on 2-11-1991 vide Annexure-6 and the order of the learned First Addl. Sessions Judge, Ganjam. Berhampur passed on 30-3-1993 vide Annexure-6 are quashed and the matter is remitted back to the Subdivisional Magistrate, Bhanjanagar to cause an enquiry and pass an appropriate order. To avoid unnecessary delay, the parties are directed to appear before the learned S.D.M. on 11th November, 1993, when the Magistrate shall pass appropriate orders for further proceeding in the matter.

The writ application is accordingly disposed of. No costs.

D.M. Patnaik, J.

6. I agree.