Friend, an extract from a double bench judgement of Supreme Court (AIR 2004 SC 4818) relevant portion which discusses and defines "nuisance" is reproduced>
" Nuisances
are of two kinds, i.e. (i) Public; and (ii) Private. 'Public nuisance'
or 'common nuisance' as defined in Section 268 of the Indian Penal
Code, 1860 (in short the '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 of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short 'CPC'). 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.
" Nuisances
are of two kinds, i.e. (i) Public; and (ii) Private. 'Public nuisance'
or 'common nuisance' as defined in Section 268 of the Indian Penal
Code, 1860 (in short the '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 of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short 'CPC'). 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.
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.
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.
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. 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 is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil
proceedings than of criminal nature. Section 133(1)(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 Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case 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. "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 presenti to the health or physical comfort of the community. 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 occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and 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.
Section 133 of the Code as noted above appears in Chapter X of
the Code which deals with maintenance of public order and tranquility.
It is a part of the heading "Public nuisance". The term "nuisance" as
used in law is not a term capable of exact definition and it has been
pointed out in Halsbury's Laws of England that:
"even in the present day there is not entire
agreement as to whether certain acts or omissions
shall be classed as nuisances or whether they do not
rather fall under other divisions of the law of
tort".
In Vasant Manga Nikumba v. Baburao Bhikanna Naidu (1995 Supp (4) SCC 54) it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. To bring in
application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due
to likely collapse etc. The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable danger would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential
nuisances and on the other hand applies when the nuisance is in existence. It has to be noted that sometimes there is confusion between
Section 133 and Section 144 of the Code. While the latter is a more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute".
settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. 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 is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil
proceedings than of criminal nature. Section 133(1)(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 Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case 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. "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 presenti to the health or physical comfort of the community. 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 occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and 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.
Section 133 of the Code as noted above appears in Chapter X of
the Code which deals with maintenance of public order and tranquility.
It is a part of the heading "Public nuisance". The term "nuisance" as
used in law is not a term capable of exact definition and it has been
pointed out in Halsbury's Laws of England that:
"even in the present day there is not entire
agreement as to whether certain acts or omissions
shall be classed as nuisances or whether they do not
rather fall under other divisions of the law of
tort".
In Vasant Manga Nikumba v. Baburao Bhikanna Naidu (1995 Supp (4) SCC 54) it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. To bring in
application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due
to likely collapse etc. The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable danger would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential
nuisances and on the other hand applies when the nuisance is in existence. It has to be noted that sometimes there is confusion between
Section 133 and Section 144 of the Code. While the latter is a more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute".
Concluding you may cone to infer that acting u/s 4 of the RTI Act is not a nuisance but a discharge of the freedom of speach and expression under Art 19 of the Constitution, which is also the basis of the RTI Act. Invoking 133 CrPC cna also be considered only when PUBLIC nuisance exist. When a person is acting under the framework of Law and in discharging constitutional mandates the SDM being a "Public Servant" may not be right in invoking 133 CrPC. Howev er you may consult your Advocate for further action or details. The above inforation is sent only to educate a citizens Rights and for infomation only. dwarakanathdm
On Thu, Mar 8, 2012 at 4:43 PM, prasadbvaidya@yahoo.com <prasadbvaidya@yahoo.com> wrote:
collector of latur district las not published info u/s 4 of RTI Act
2005 appointed pio and appellate authority without prior approval of
governor of maharashtra state and also appointed senior clerk as pio
and roject officer as appellate authority where as in other districts
Deputy collector is pio and collector is appellate authority
Bombay High Court issued direction to quasi judicial authorities to
dispose all appeals and complaints in 8 weeks but latur collector has
b not followed decision and kept pending for 6 months when i
approached him and requested him regarding info under section 4 of rti
act and action taken on complaint u/s 133 of criminal procedure code
1973 he ordered to throw me out of collector office can i have right
to see infor u/s 4 and visit collector office
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