CRL RC/1195/2009 of D.VIKRAM Vs DR.JAYAVARTHAVAVELU on 23 December 2009

O R D E R

Challenging the order of the Sub-Divisional Magistrate / RevenueDivisional Officer, Coimbatore, dated 27.11.2009, made inRef.No.2966/A2 under Section 133 Cr.P.C., the criminal revision hasbeen preferred by the petitioner herein.

2. In exercise of the powers vested under Section 138 of the Codeof Criminal Procedure, the Sub-Divisional Magistrate / Revenue

Divisional Officer, Coimbatore has passed the impugned order and theoperative portion of the order reads as follows :

"a) That the order passed by me on 03.09.2009under Section 133 Cr.P.C., is made absolutewithout any modification.

b) That the respondent shall not carry on theactivity of keeping or holding any dogs in saidpremises situated at Door No.28, Circuit HouseRoad, Coimbatore and he shall forthwith remove allthe dogs in his capacity and possession, failingwhich it shall be enforced according to law."

3. On the complaint given by the respondents 1 to 3 herein beforethe Sub-Divisional Magistrate, that the petitioner herein had beencausing public nuisance by keeping large number of dogs of differentvarieties in the rear side of his house at Door No.28, Circuit HouseRoad, Coimbatore abutting the wall of Door No.26 ofThiru.D.Jayavarthavavelu and abutting the wall of the residentialhouse of Thiru.R.Kumaravel, residing at Door No.703, Avinashi Road,Coimbatore and also close to the house of the second respondent, theaction was taken by the fourth respondent herein. As per thecomplaint given against the petitioner herein, he was keeping morethan 30 dogs of different varieties in his house, violating theprovisions of Section 352 of the Coimbatore City MunicipalCorporation Act. It was further stated that constantly, the dogs weremaking peculiar noises of barking and howling during night hours andalso in the early morning hours, which affects the respondents 1 to3, their family members and others and also create an unhealthyatmosphere besides causing annoyance, as the dogs emit foul smell,causing inconvenience to the residents and guests in the area.

4. In the impugned order, the Sub-Divisional Magistrate hasstated that he went through the affidavit, counter affidavit and alsoconsidered the evidence adduced by the power agent of thecomplainants and also the reports of the Inspector of Police, B4Police Station, the Assistant Commissioner of Police (Central) andthe report of the Joint Director of Health Services. The Sub-Divisional Magistrate held that the dogs are to be removedconsidering the public interest and the public health. The orderfurther reads that the Commissioner, Coimbatore Corporation had alsoreported that no NOC was granted for keeping the dogs in theresidential area and some dogs are found ferocious in nature and thedogs are kept by the petitioner herein only for commercial purposesand hence, the nuisance caused by the petitioner is construed as apublic nuisance, as defined under the Code of Criminal Procedure.

5. Mr.R.C.Paul Kanagaraj, learned counsel appearing for thepetitioner submitted that the fourth respondent, Sub-DivisionalMagistrate / Revenue Divisional Officer, Coimbatore has not followedthe mandatory provisions while passing orders under Section 133Cr.P.C., for the removal of pet animals. According to the learnedcounsel, the provisions of Section 133 Cr.P.C., cannot be invokedagainst the petitioner, as the provision is available only to removethe hazardous animals. The second point raised by the learned counselfor the petitioner is that none of the complainants, the respondents1 to 3 herein had adduced any evidence to substantiate the avermentsin the complaint given by them and the evidence adduced by the poweragent before the Sub-Divisional Magistrate is not sustainable and thesame has to be rejected. The third contention is that the Sub-Divisional Magistrate has failed to note the animosity of therespondents 1 to 3 with the petitioner in connection with the kennelclub competition and that the respondents 1 to 3 are also rearing petanimals in their houses. According to the learned counsel, keepingthe dogs by the petitioner cannot be construed as a public nuisanceto invoke Section 133 Cr.P.C, since they are only pet animals.

6. Per contra, Mr.R.Krishnamoorthy, learned Senior Counselappearing for the first respondent submitted that the petitioner waskeeping huge number of dogs, 30 in number as stated in the impugnedorder in a residential area. The barking and the howling of the dogsand emitting of foul smell causing hazardous condition to theresidents of the area, which is a public nuisance. The learned Seniorcounsel has also drew the attention of this Court to Section 352 ofthe Coimbatore City Municipal Corporation Act, which reads as follows :

"352. Licences for places in which animals arekept – (1) The owner or occupier of any stable,veterinary infirmary, stand, shed, yard or otherplace in which animals or quadrupeds are kept ortaken in for purposes of profit shall apply to thecommissioner for a licence not less than forty-five and not more than ninety days before theopening of such place or the commencement of theyear for which the licence is sought to berenewed, as the case may be.(2) The commissioner may, by an order and undersuch restrictions and regulations as he thinksfit, grant or refuse to grant such licence.(3) No person shall, without or otherwise than inconformity with a licence, use any place or allowany place to be used for any such purpose."

7. According to the learned Senior Counsel, without obtaining anylicence from the authorities, the petitioner is keeping huge numberof dogs for commercial purposes and some of the dogs are ferocious and also drew the attention of this Court to Article 21 of theConstitution of India and argued that right to live peacefullywithout noise pollution and hazardous condition is a fundamentalright guaranteed under Article 21 of the Constitution and that theact of the petitioner keeping large number of dogs of differentvarieties at the residential area is detrimental to the fundamentalright of the respondents 1 to 3 and the other residents. According tothe learned Senior Counsel, there are aged heart patients in theresidential area and the howling and barking of dogs, especiallyduring night hours would endanger the life of such aged and ailingpersons.

8. Mr.R.C.Paul Kanagaraj, learned counsel for the petitionercontended that the petitioner is keeping only pet dogs and not forany commercial purposes and therefore, Section 352 of the CoimbatoreCity Municipal Corporation Act has no relevance in this case. Thelearned counsel also requested the Court to grant interim stayagainst the impugned order passed by the Sub-Divisional Magistrate,Coimbatore.

9. As per Section 352 of the Coimbatore City MunicipalCorporation Act, 1981, the owner or occupier of any stable,veterinary infirmary, stand, shed, yard or other place in whichanimals or quadrupeds are kept or taken in for the purposes of profitshall apply to the commissioner for a licence not less than 45 andnot more than 90 days before the opening of such place or thecommencement of the year for which the licence is sought to berenewed, as the case may be. As per sub-section 3, no person shall,without or otherwise than in conformity with a licence, use any placeor allow any place to be used for any such purpose. Therefore, it isclear that as per the Coimbatore City Municipal Corporation Act,1981, animals or quadrupeds cannot be kept without obtaining licensefrom the authorities.

10. Mr.R.C.Paul Kanagaraj, learned counsel appearing for thepetitioner submitted that Section 352 of the said Act is applicableif the animals are kept for the purpose of earning profit and in theinstant case, the dogs are being kept only as pet animals andtherefore, the aforesaid Section is not applicable.

11. Per contra, Mr.A.Ramesh, learned Senior Counsel appearingfor the respondents 2 and 3 drew the attention of this Court to thetyped set filed by the respondents, wherein at page number 12, by wayof an affidavit, the respondents as complainant before the Sub-Divisional Magistrate have stated that the petitioner herein hadpublished an advertisement, that he had been keeping dogs for saleand the downloaded advertisement in the internet was also produced asa document along with the affidavit, which is available at pagenumber 14 of the typed set. Under the head, "Champion line Great dane pups for sale – Coimbatore – champion great dane pups for sale" hasbeen published, wherein the price of the dog is stated at Rs.17,000/-and further, in the advertisement, 3 male and one female dogs havebeen stated.

12. Learned counsel appearing for the petitioner submitted thatthe advertisement was not made by the petitioner in the internet,however, it is seen that the aforesaid downloaded advertisement copywas filed with an affidavit by the respondents 1 to 3 herein beforethe 4[th] respondent, Sub-Divisional Magistrate, Coimbatore, that wasnot disputed by the petitioner herein. Hence, it is not open to thepetitioner herein to dispute the same in the revision.

13. Though the petitioner is admittedly keeping number of dogs,in the petition mentioned premises, the petitioner has notspecifically stated as to how many dogs are being kept by him at theresidential area, for the reasons best known to him. When theimpugned order specifically says that the petitioner was keeping morethan 30 dogs, it is the duty of the revision petitioner to furnishthe details. Learned counsel appearing for the petitioner, during hisarguments submitted that the petitioner was keeping only 6 to 7 dogsand not 30 dogs, as stated in the impugned order.

14. In order to enlighten the legal aspect, learned counselappearing for both sides have cited the following decisions insupport of their contention :

1. Bhaba Kanta vs. Ramachandra, 1987 Crl.L.J 1155

2. Manuel Philip vs. State, AIR 1967 Goa, Daman and Diu 1

3. Donnington Tea Factory vs. Sub-Divisional Magistrate & Sub-Collector, Connoor, 1998 Crl.L.J 3585

4. Prem Charan vs. State of U.P, 1976 Crl.L.J 1451

5. M/s. Shiraz Cinema vs. Srinagar Municipal Corporation, Crimes(HC) 2 (1988) 250

6. Ramachandra Malojirao Bhonsle vs. Rasikhbai GovardhanbhaiRaiyani, 2001 Crl.L.J 866

7. Jagdamba Prasad Tewari & another vs. State of U.P. & others,1991 Crl.L.J 1883

8. Bali vs. State of Rajasthan, 2001 Crl.L.J 909

9. Madan Mohan Chowlia vs. Ashutosh Sasmal and others, 1975Crl.L.J 959

10. Jagdamba Prasad Tewari & another vs. State of U.P. & others,Crimes (HC) 2 (1991) 635.

11. Vasant Manga Mahajan and others vs. Baburao Bhikanna Naiduand another, 1979 Crl.L.J 52612. Ramasamy, M vs. Sub-Divisional Magistrate, etc., 1988 Mad LWCrl 62

13. Thaneswar Bora vs. Kumud Sarmah, 1987 Crl.L.J 1293

14. The Manager, Kodanad Estate vs. The S.D.M and the Asst.

Collector, Coonoor, 2008 (2) MWN (Cr.) 383

15. Preman, P. vs. M.P.Andy, 1997 (1) CTC 305

16. Janki Vashdeo Bhojwani vs. Indusind Bank Limited, 2005 (3)MLJ 109 (SC)

15. In Bhaba Kanta vs. Ramachandra reported in 1987 Crl.L.J 1155,the Gauhati High Court has held that proceedings under Sections 133,145 and 147 of the Code of Criminal Procedure cannot be allowed to becontinued side by side when there is enough time to go to CivilCourt. The decision is not applicable to the facts and circumstancesof the case, since keeping the dogs in the residential area resultingin barking and howling is an unbearable annoyance, a public nuisanceto the aged and ailing people in a residential zone. In suchcircumstances, the party need not go to the Civil Court, seekingredressal.

16. In Manuel Philip vs. State, reported in AIR 1967 Goa, Damanand Diu 1, it has been held that before action can be taken underSection 133 Cr.P.C, the obstruction or nuisance must be proved toexist on some way, river or channel which may lawfully be used by thepublic or on some public place. If the obstruction or nuisance is onsome private property, action under Section 133 Cr.P.C., cannot betaken. Here in the instant case, the noise pollution, by way ofbarking and howling cannot be construed as a private nuisance, as itaffects public at large in a residential area.

17. In M/s. Shiraz Cinema vs. Srinagar Municipal Corporation,reported in Crimes (HC) 2 (1988) 250, the Jammu and Kashmir HighCourt has held that Section 133 Cr.P.C., providces for the remove ofpublic nuisance. The purpose and object of Section 133 Cr.P.C is notintended to settle private disputes between two members of the publicbut is intended to protect the public as a whole against theinconvenience of public nuisance. No doubt that the provisions ofSection 133 Cr.P.C., cannot be used for settlement of disputesbetween private parties. In the instant case, it cannot be construedthat there is any attempt to settle any private dispute.

18. This Court in the decision, Preman, P. vs. M.P.Andy, reportedin 1997 (1) CTC 305 has held that the Executive Magistrate directingcutting and removal of branches that protrude over respondents houseis a case where private rights are involved.

19. In Janki Vashdeo Bhojwani vs. Indusind Bank Limited, reportedin 2005 (3) MLJ 109 (SC), the Hon'ble Supreme Court has held that thepower of attorney holder cannot depose evidence for any act done bythe principal, without any personal knowledge. In the instant case,the power of attorney has deposed the evidence from his personalknowledge, he has also stated the same in his evidence and he wasalso cross-examined on behalf of the petitioner herein. No doubt, no

power of attorney holder can depose anything on the personalknowledge of his principal, however, in the instant case, theevidence deposed by the power of attorney is only from his knowledge,regarding the keeping of dogs by the petitioner. Further, keeping ofdogs by the petitioner in the residential area is not disputed by thepetitioner.

20. The Court can take judicial notice that barking and howlingof dogs in a residential area would certainly cause noise pollutionand further, keeping those animals in the residential area, withoutgetting license under Section 352 of the Coimbatore City MunicipalCorporation Act is also violation. On the aforesaid circumstances,this Court is of the view that the decisions cited on the side of thepetitioner would not make the action taken by the 4[th] respondent, Sub-Divisional Magistrate illegal to remove the public nuisance underSection 133 Cr.P.C. Keeping animals detrimental to the interest ofthe other residents cannot be a right of any person.

21. The Court can take judicial notice that keeping even 6 or 7dogs in a residential area will cause public nuisance on account ofbarking and howling of the dogs, similarly, emitting foul smell bythe dogs cannot be ruled out, which would also cause public nuisance.

22. Mr.A.Ramesh, learned Senior counsel appearing for therespondents 2 and 3 relying on the decision of the Madhya PradeshHigh Court, Indore Bench in Krishna Gopal vs. State of M.P., (1986Crl. L.J 396) submitted that the jurisdiction of the Sub-DivisionalMagistrate can be invoked under Section 133 (1) Cr.P.C., on receivingthe report of the Police Officer or other information and on takingsuch evidence if any, as he thinks fit. It was held that oninformation received, the Sub-Divisional Magistrate is empowered totake action in this behalf for either removal or regularising apublic nuisance. The action that was initiated on the basis of aPolice Report and the complaint received, could be the basis fortaking action under Section 133 Cr.P.C. It has been held that merelybecause only one complainant has come forward to complain about thenuisance, the nuisance cannot be construed that there was no publicnuisance, as contemplated under Section 133 Cr.P.C. In the instantcase, there was complaints by three persons and they complainedbefore the Sub-Divisional Magistrate, in order to remove the publicnuisance and further, as per the impugned order, it is made clearthat the Sub-Divisional Magistrate has considered the reports of theInspector of Police, B4 Police Station, Assistant Commissioner ofPolice (Central) and the report of the Joint Director of HealthServices and that the Commissioner, Coimbatore Corporation has alsoreported that no NOC was issued for rearing dogs at the residence ofthe petitioner.

23. It is not in dispute that public nuisance may be anannoyance, by way of unbearable noise or emitting foul smell. Thebarking and howling of dogs at the residential area is certainly beconstrued as a public nuisance, since it is an annoyance to public atthe residential area. Keeping number of dogs in a residential areawould also emit foul smell, injurious to the public health. It cannotbe said by the petitioner that there was no howling or barking by thedogs or no emitting of foul smell, since more number of dogs werekept nearby the residence of the respondents 1 to 3. In a civilizedsociety, every one has a right to live peacefully without noisepollution and health hazardous atmosphere, which has been recognisedas a fundamental right guaranteed under Article 21 of theConstitution of India.

24. Even the conduct of any trade or occupation or keeping of anygoods or merchandise, injurious to health or physical comfort of thecommunity, could be construed only as a public nuisance. The noisepollution or air pollution cannot be ruled out as an exception. Asheld by the Kerala High Court, in Madhavi vs. Thilakan, reported in1989 Crl. L.J 499, with reference to Articles 21 and 47 of theConstitution of India and Section 133 Cr.P.C, it cannot be disputedthat right to live includes right to live in peace, to sleep in peaceand right to repose good health. Running workshop in certaincircumstances can cause air pollution and noise pollution, whichcould be regulated or prohibited by the authority in invoking theprovisions of law. The noise and fuels emanating from the workshipwill cause health hazardous. Noise pollution and emitting foul smellby keeping dogs in a residential area is no way a lesser hazardouscondition than a factory creating noise pollution. Barking andhowling of dogs and emitting foul smell in a residential area isundoubtedly a public nuisance.

25. The power under Section 133 Cr.P.C. is vested with the Sub-Divisional Magistrate or Executive Magistrate, in order to protectthe people from the tyranny of the public nuisance, by way ofremoving the nuisance.

26. It is also an admitted fact that the petitioner has notobtained any license from the authorities, as contemplated underSection 352 of the Coimbatore City Municipal Corporation Act, 1981,for keeping dogs. The petitioner is keeping number of dogs not as petdogs, but for commercial purposes. The power agent of respondents 1to 3 was examined and he has specifically stated that he wasconversant with the facts of the case and he was also cross-examinedby the petitioner herein and therefore, there is no error inconsidering the evidence of the power agent of the complainants, whenit is supported by other material evidence available on record. Ithas been made clear that the Sub-Divisional Magistrate was empoweredunder Section 133 Cr.P.C., for removal of nuisance and to protect the

people from public nuisance. The dogs, being kept by the petitionerwere causing nuisance by way of barking and howling in theresidential area of the respondents 1 to 3 and hence, the actiontaken by the 4[th] respondent under Section 133 Cr.P.C., cannot beconstrued as an illegal act.

27. As held by the Hon'ble Apex Court, nuisance is aninconvenience which materially interferes with the ordinary physicalcomfort of human existence, but it is not capable of precisedefinition. Section 133 attracts only public nuisance, as held by theHon'ble Supreme Court in Vasant Manga Nikumba vs. Baburao BhikannaNaidu, reported in (1995) 4 (Supp) SCC 54. If the inconvenience orannoyance affects public at large, that has to be construed only aspublic nuisance. In the instant case, it has been established thatbarking and howling of the dogs have caused inconvenience andannoyance to the respondents 1 to 3 as well as other people residingin the locality and therefore, it is only a public nuisance.Similarly, emitting foul smell is also a public nuisance, causinginconvenience to all the people residing in the locality. As a matterof right, no one is entitled to keep dogs or other animals in aresidential area, so as to create public nuisance. Considering thebarking and howling of dogs, in addition to emitting foul smell, theconcerned authority, empowered under Section 133 Cr.P.C., can takeaction to remove the nuisance.

28. The object and purpose behind Section 133 of the Code isessentially to prevent public nuisance and which involves a sense ofurgency in the sense that if the Magistrate fails to take recourseimmediately irreparable damage would be done to the public, asdecided by the Hon'ble Apex court in State of M.P. vs. Kedia Leather& Liquor Ltd., reported in 2003 SCC (Cri) 1642.

29. It has been held by the Hon'ble Apex Court in Francis Coralievs. Union Territory of Delhi, reported in AIR 1981 SC 746 that rightto life enshrined in Article 21 cannot be restricted to mere animalexistence. It means something much more than just physical survival.The right to life includes the right to live with human dignity andall that goes along with it, namely the bare necessaries of life suchas adequate nutrition, clothing and shelter in a nuisance andhazardous free atmosphere.

30. In Olga Tellis vs. Bombay Municipal Corporation, reported inAIR 1986 SC 180, the Constitution Bench of the Hon'ble Apex Court hasheld that the procedure prescribed by the Bombay MunicipalCorporation Act under Section 314 of the Act for removal ofencroachments from pavements over which the public has the right ofpassage or access cannot be regarded as unreasonable, unfair or anunjust act.

31. In Vincent vs. Union of India, reported in AIR 1987 SC 990,the Hon'ble Supreme Court has held that in a welfare state, it is theobligation of the State to ensure the creation and the sustaining ofconditions congenial to good health. In the instant case, it is clearthat the respondents 1 to 3 and others are residing in a residentialarea, where the petitioner is keeping number of dogs, violatingSection 352 of the Coimbatore City Municipal Corporation Act. Barkingand howling of dogs in a residential area will certainly spoil thepeaceful and congenial atmosphere of the public in the residentialarea.

32. It is the duty of the authorities and municipaladministration to remove the nuisance, in order to regulate the same,in the interest of the public. Obtaining license has been prescribedunder Section 352 of the Coimbatore City Municipal Corporation Act.Even if license is obtained by a person, the affected persons canfile a complaint to take action under Section 133 Cr.P.C., in orderto prevent noise pollution or other hazardous condition.

33. It is well settled that the Sub-Divisional Magistrate or anyExecutive Magistrate is vested with the power to take action, underSection 133 Cr.P.C., to remove any public nuisance. In the instantcase, it has been clearly established that the petitioner is keepinglarge number of dogs, without obtaining license for commercialpurposes and also caused noise pollution and hazardous atmosphere inthe residential area of the respondents 1 to 3 and therefore, I am ofthe view that there is no error or infirmity in the impugned order tobe interfered with by this Court and hence, the revision is liable tobe dismissed.

34. In the result, confirming the order passed by the Sub-Divisional Magistrate / Revenue Divisional Officer, Coimbatore, theCriminal Revision Petition is dismissed. Consequently, connectedmiscellaneous petition is also dismissed.

tsvn

To

1. The Revenue Divisional Officer, Coimbatore.

2. The Public Prosecutor, High Court, Madras.

1 cc To Mr.R.C.Paul Kanagaraj, Advocate, SR.71819

2 cc To Mr.R.Bharath Kumar, Advocate, SR.71546

Crl.R.C.No.1195 of 2009

mbs(co)pmk.5.1.2010