# • • . , 196B Dahya Lal v. Rasul Mohammed Abdul Rahim Shah J

- **Citation:** [1963] 3 S.C.R. 9
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** J. L. Kapur, K. C. Das Gupta, Raghu:Sar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/196b-dahya-lal-v-rasul-mohammed-abdul-rahim-shah-j-2699
- **Pages:** 4

## Headnote

Public Nuisance-Auctioning vegetables in private houseOarts of seUers kept on public road-Unlawful obstruction, if
auctioneers responsible-Noise caused in auctioning-Whether
trade injurious to public health and comf ort-Oode of Criminal
Procedure, 1898 (Act V of 1898), s. 133.
The appellants carried on the trade of auctioning vegetables in a private house in the Subzimandi quarter. The
persons who brought vegetables for sale. kept their carts on the
public road where they caused obstruction to traffic. The
noise caused by the auctioning caused discomfort to persons
living in the locality.
An order was passed under s. 133 of
the Code of Criminal Procedure restraining auctioning vegetables in their house.
Held, that the order was not justified under s. 133 of
the Code.
Merely because the appellants carried on auctioning in connection with which the carts were brought, they
could not be considered to have caused the obstruction.
In
a trade 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. Section 133 was not intended
to stop such trades merely because of the discomfort caused
by the noise.

## Text

--,-'
...
'
3 S.0.R.
SUPREME COURT REPORTS
9
one qf jurisdiction, the High Court was, in our view,
competent to exercise the powers vested in it by
Art. 227.
·The appeal therefore fails and is dismissed
with costs.
Appeal dismisseil.
B.AM AUTAR
v.
STATE OF U. P.
(J. L. KAPUR, K. C. DAS GUPTA and
RAGHU:SAR DAYAL, JJ.)
Public Nuisance-Auctioning vegetables in private houseOarts of seUers kept on public road-Unlawful obstruction, if
auctioneers responsible-Noise caused in auctioning-Whether
trade injurious to public health and comf ort-Oode of Criminal
Procedure, 1898 (Act V of 1898), s. 133.
The appellants carried on the trade of auctioning vegetables in a private house in the Subzimandi quarter. The
persons who brought vegetables for sale. kept their carts on the
public road where they caused obstruction to traffic. The
noise caused by the auctioning caused discomfort to persons
living in the locality.
An order was passed under s. 133 of
the Code of Criminal Procedure restraining auctioning vegetables in their house.
Held, that the order was not justified under s. 133 of
the Code.
Merely because the appellants carried on auctioning in connection with which the carts were brought, they
could not be considered to have caused the obstruction.
In
a trade 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. Section 133 was not intended
to stop such trades merely because of the discomfort caused
by the noise.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 79 ofl960.
Appeal by special leave from the judgmtlnt
and order dated August 18, 1969, of the Allahabad
lli~h Court in CriJDinal Revision No. 947 of 1959.
i
•
•
.
,
196B
Dahya Lal
v.
Rasul Mohammed
Abdul Rahim
Shah J,
1962
MoyJ.
1962
Ram.Autar
••
Stauo/U.P.
Das GuplaJ.
10
SUPREME COURT REPOR'.1.'S [1963]
G.L. Prem, for the appellants.
G.G. Mathur and G. P. Lal, for the respondent.
1962. May 3. The Judgment of the Ca°urt was
delivered by
DAS GUPTA, J. -This appiial by special leave
is against the order of the High Court at Allahabad.
dismissing the application for revision of.an order
under s. 133 of the Code of Criminal Procedure.
The three appellants carry on the trade of
auctioning vegetables. These vegetables, it appears,
· are brought in carts which are parked on the public
road outside the building where the aucthning
takes place. There was some dispute between these
<
appellants and the Municipal Board which it is
suggested by the appellants was really behind the
move to get this 9rder under s. 133 passed against
them. It is unnecessary, however, for us to consider
that matter. What appears to be clear is that the
trade is carried on in a private house in the
subzimandi quarter and it dose .happen that some
r
amount of incovenience is caused to people who
pass by the public road because of the carts which ·
necessarily come near this house. The real question .
iij, whether because this tra,de of auctioning vege-
,..
tables which the appellants carry on in their private
house produce the consequence that people passing
by the road are put to inconvenience, action can be
taken under s.
133 of the Code of Criminal
Procedure.
The High Court seems to be of the
)-·
opinion:..:... , .
•
"when it, is clear that the business of
auctioning vegetables cannot be carried on
without causing obstruction to the passers by,
the conduct of the business cau be prohibited,
even thou~h it i,s
c~rried oμ. in a. rrivat11
·?lace/'
,
3 S.C.R.
SUPREME COURT REPORTS
11
It seems to us that this proposition has been put
too widely. Section 133 of the Code of Criminal
Procedure empowers ·action
by
the
District
Magistrate, Sub-Divisional Magistrate or Magistrate
1st class to remove public nuisances in certain
circumstances. Two out of the several els. of s.
133(1) in which these circumstances a.re set out,
with which we a.re concerned, are the first and
second clauses.
The first
clause provides for
aotion by Magistrate where
he considers,
on
receiving a police-report or other information and
on taking such evidence as he thinks fit,_ that any
unlawful
obstruction
or
nuisance
should be
removed from any way, river or "hannel which is
or may be lawfully used by the public or from any
public place. The second clause deals with the
position where the conduct of any trade or occupation or the keeping of any goods or 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.
·
It is difficult to see how the first clause can
have any application.
Unlawful obstruction, if
any, is certaiJ;1ly not caused by the people who
carry on the trade of auctioning. If the obstruction
caused by keeping the carts on the roa.d . can be
considered to be unlawful obstruction within the
meaning of this clause-about which we express no
opinion action can be taken against the persons
causing such obstruction. The obvious difficulty
in the way of that might be that the persons who
bring the cartsare not the same from day today. But
whether or not any action is possible under s. 133
against the persons bringing the carts, we are unable
to agree that merely because the appellants carry on
auctioning in connection with which the carts are
brou~ht 1 the' c~μ be copsidered to ~ve caused't~~
1962
Ram Autar
v.
Stale •JU. P.
Das Gupta 6.
1962
RamrAuttir-
.
y.
StaieoJU. P.
Das 'Gupta J.
12
SUPREME OOUR.T REPoRTS fi~963j
obstruction. In our opinion, the appelliints cannot
be considered to be the persons causing obstruction.
Turning now to the hext clause, the question
arises how the conduct of this auctioning trade is
injurious to the health or physical comfort of the
community.
Undoubtedly, some amount of noise
and perh!lps a great deal of noise is caused when
the auction is going on. That liowever is a neces·
sary concomitant of buying and selling large quimtities and it will be unreasonable to t.hink that
merely because some amount of noise is caused
which people preferring perfect peace may not like,
this is injurious to thti physical comfort, or health
of the "community". It appears to· us that the
conduct of tmdes of this nrJ;ure and indeed of other
trades in localities of a city w :..ere such trades are
.usually carried on, is bound to produce some discomfort, though at the same time resulting perhaps
' i!} the good or the community in other respects.
If a trade like auctioning which has to be carried
on as necessary for the well being of the comri:m·
nity, so.me amount of noise has to be borne in at
jeast that part of the town where such trade is
ordinarily catriei oh. In inakiilg the provisions
of s. 133 of the Code of Criminal Procedure, the
' legislature cannot have intended the; stoppage df
such trades in such part of the town, merely
because of the "discomfort" caused by tlie noise
in carrying on the trade. In our opinion therefore,
the slight discomfort that may be caused to some
people passing by the ro!l.d or living in the
neighbourhood ca:nnot ordiriadly be considered to .
be such as to ju'iltify action under s. 133 of the
Code of Crimin'al Procedure. We do not think
that the orders are justified under s. 133. Accor- ·
. dingly, we allow the appeal and set aside the order
. Jriadt:i b~ the :Magistrate.
.
. Appeal aUowe4~
-