Hon'ble Justice V.D.Gyani

Reported in 1986 Crl.L.J 397

Krishna Gopal Vs. State of M.P.


ORDER:- This Revision Petition is directed against the order dated 13-10-1984 passed by the Additional Sessions Judge, Indore in Criminal Revision No.148/1983 thereby confirming the order of removal of a boiler installed in the residential House No.23/2 Manoramaganj, Indore for running a Glucose Saline Factor. By order dated 10-12-1984 the operation of the order was directed to be stayed.

2. When the matter came up for final hearing on 3-10-1985 the petitioner was directed to produce the permission which he claimed to have obtained from the Joint Director, Town and Country Planning for running a boiler in a residential locality installed in 23/2 Manoramaganj, Indore. A notice was also directed to be issued to the Joint Director for producing the whole record relating to the permission granted for installation of a boiler in a residential locality like Manoramaganj. the record was not produced on the date fixed, thereafter a show cause notice had to be issued against the Joint Director calling upon him to show cause why action for disobedience of the Courts' order should not be taken against him. It was on this notice that on 24-10-1985 the record was produced. the petitioner also produced on 9-10-1985 photostat copies of certain documents and a certified copy of a judgment dated 18-10-1983 passed in Civil Original Suit No.108-A/83 by Vth Civil Judge Class-II, Indore. When the Civil Suit came to notice the record of the civil suit was also sent for by order dated 24-10-1985 which was received the next day. As the matter involved installation of boiler for manufacturing glucose saline in a residential locality, and surprisingly enough permission for the purpose was granted by the Authorities concerned, even in teeth of pollution laws it became necessary to send for all the record so that the nuisance if any be removed from the residential locality. When it is difficult to have permission to run an ordinary flour mill without, valid licence and permission from the Competent Authorities it is painfully surprising that a boiler could be permitted to be installed for manufacturing glucose saline in a residential locality like Manoramaganj in Indore.

3. A brief resume of facts is necessary for decision of this revision petition, Smt.Tripathi on 26-8-1982 lodged a complaint with the Distt. Magistrate, Indore, alleging that a factory Caplic was being run in House No.23/2 Manoramaganj, Indore, manufacturing glucose saline where a boiler was installed and coal was used as fuel. It was hardly 8 ft. away from the residence of Smt.Sarla Tripathi. The emitted smoke and ash from this boiler caused a great deal of atmospheric pollution resulting in a deleterious effect on the residence of that locality. It was also alleged that the factory was being run round the clock; at times invariably boiling water used to fall in her house. She also stated in her complaint that before issuance of a No Objection Certificate to the aforesaid factory she had already lodged her protest with the Joint Director Town and Country Planning, Indore, Development Authority, Municipal Corporation, Indore as also the collector on 6-12-1976 and in face of this objection by her the factory was permitted to be run under the very nose of all these authorities. She complainted that her husbnad a heart patient, as a result of the running of this factory was deprived of even the minimum legitimate 8 hours sleep which he needed most. Boiling water, at times acid was being thrown and at times even filthy abuses were heard on objections being raised by the proprietors of the factory. She prayed that the spot be inspected and the nuisance of installation of a boiler be removed.

4. A report was called from the Police Station, Palasia and on that basis a notice dated 8-11-1982 was issued to the petitioner by A.D.M City Indore calling upon him to show cause as to why the factory should not be ordered to be removed from the residential locality.

5. The petitioner on being served with a show cause notice submitted his reply on 19-11-1982 stating inter alia that by order dated 21-11-1976 the Joint director Town and Country planning issued a No Objection Certificate to the petitioner for starting the factory in the premisesed i.e. 23/2 Manoramaganj, Indore. The Municipal Corporation, Indore also permitted the same by its order dated 15-2-1977. Similarly the Chief Inspector of boilers issued a certificate for the use of boiler on 27-1-1982. It was contended by the petitioner that even if someone was to stand with his ears fixed to the boiler still he wouldnot be in a position to know if the boiler was working. It was in reply to Smt.Sarla Tripathi's contention that her husband could not sleep because of the working of the boiler, the petitioner in his reply to the show cause notice advanced a fantastic claim that even if someone was to fix his ears to be boiler he would not be able to feel its working. Therefore no question that as a result of the emitting of smoke and ash the atmosphere was being polluted having a deleterious effect of the residents. The petitioner contended that boilers have never been known to have any such effect, on the other hand it has always improved human health and the example cited was that most of the Five Star Hotels have boilers installed in them and they add to the comforts and one such boiler according to the petitioner was also installed in the local Suhag Hotel. He also contended that in all big hospitals there are boilers and still the patients go for treatment to such hospitals. According to him even in the local M.Y. Hospital as many as three big boilers have been installed, in T.Choithram Hospital there are two boilers and this is all with a view to justify the installation of boilers in a residential locality. Certain insinuations had also been made against the husband of Smt.Sarla Tripathi and it was contended that the factory was being run for the last 5 years i.e. since 1977 and none except Smt.Tripathi complained about it. The petitioner also attached a certificate dated 14-8-78 from an obliging neighbour Officer of the Survey of India located at a distance of about 50 ft. from the factory premises stating to the effect that the officer had no appreciable trouble in faving the factory nearby and lastly it was contended that as the complainant Smt.Tripathi was a teacher in a School just near the Collectorate she was taking under advantage of this nearness and at the height of it the petitioner took shelter behind the slogan that the year was declared to be a production year which required maximum production and prayed that such obstructionst in the way of production like the complainant should be properly guided. What a selfish, self-serving interpretation of the production year and mockery of others' rights. Along with this reply the petitioner had filed the documents referred to above and thereafter the complainant placed on record the correspondence which she had with the Authorities. The Joint Director informed the complainant's husband by a letter that no permission as such was given for running any Industry in the locality but this had reference to one M/s.Auto Agro Industries. Thereafter the Joint Director on 3-3-79 informed one R.C.Guhas resident of No.7 Manoramaganj, Indore in reply to his letter dated 28-12-1978 that permission to Caplic was granted for manufacturing medicines as it was in accordance with rules and expressed his mability to do anything in the matter. A photostat copy complaining against the petitioner factory signed by many residents of the locality and addressed to all the concerned Authorities such as the Joint Director. Town and Country Planning, the Collector, the Commissioner and the Superintendent of Police is also placed on record.

6. On 7-1-83 Krishna Gopal Maheshwari stated on oath before the Addl. District Magistrate that as he was a mere employee in M/s.Caplic and the proprietor was Ajay S/o.Krishna Gopal the complaint did not relate to him it should therefore be dismissed. It is surprising that having made this statements on oath the present petition is being pursued by the same Krishna gopal Kakkani. A photostat copy of the general power of attorney executed on 21-5-81 by all the partners Govind, S/o.Jaikishanji Mantri, Smt.Radhabai, W/o.Ratanlalji Kakani, Ajaykumar, S/o.Kishan Gopalji Kakani and Smt.Sheel, W/o.Ghanshyam Mantri of M/s.Caplic appointed and constituted Krishnagopal Kakani and Shri.Ghanshyam Mantri as their true and lawful attornies to act for andin the name of M.s.Caplic and in fact of this general power of attorney and the fact that the petitioner's mother Smt.Radhabai and his son Shri.Ajay Kumar the petitioner made unknowingly palpably false and misleading statement on oath for dismissal of the complaint preferred by Smt.Tripathi. All these facts show the callous conduct of the petitioner and his disregard for truth.

7. The Addl. District Magistrate examined Smt.Sarla Tripathi, Nathulal Mahesh Tripathi, Mahendra Singh Gaur and also the complainant who swore an affidafvit before the S.D.M. and all these witnesses with one voice complained of pollution caused by running of the factory. Nore of them has been cross-examined and on 3-6-1983 the S.D.M., Indore City passed a final order directing the removal of the factory from the premises 23/2 Manoramaganj, Indore.

8. Thereafter feeling aggeived by the aforesaid order Krishnagopal Kakani preferred a revision before the Sessions Judge Indore on 17-6-1983. This revision petition was decided by order dated 30-10-1984 and a modification was made only to the extent that instead of removal of the whole factory it was the boiler alone which was directed to be removed. In the meanwhile the petitioner M/s.Caplic filed a Civil Suit No.108-A/83 in the Court of Vth Civil Judge Class-II, Indore for declaraion and perpetual injunction against the Joint Director, Town and Country Planning. Indore seeking a declaratory decree to the effect that the Joint Director had no right to cancel the No-objection Certificate granted to the plaintiff petitioner. The order passed by the Joint Director on 30-3-1983 intimating the superitending Engineer, M.P.E.B., Indore about the cancellation of N.O.C. granted to the plaintiff petitioner directing disconnection of electricity to the plaintiff petitioner was arbitrary, illegal malacious and with a further relief of injunction that the power connection granted to the plaintiff petitioner be not removed in any manner. It is painfully surprising that the Joint Director in spite of notice and even after having made appearance before the Civil Court did not pursue it and this Court has no doubt that it was in collous disregard to duty and collusive indulgence shown by him that an exparte decree was to be passed in the aforesaid suit. So as to oblige the petitioner in perpetuating the nuisance that he had been indlging in so far.

9. In this backdrop of events Shri.Bhojwani appearing for the petitioner had contended that in view of the facts, where only one complainant Smt.Sarla Tripathi has come forward to complain about the nuisance can it be said that the nuisance complained of, is a public nuisance as contemplated by Section 133 of the Cr.P.C. According to the learned Counsel inconvenience caused to the inmates of a house, can and should not be considered as a public nuisance as it is essentially private in nature for which it is not permissible to invoke Section 133, Cr.P.C. The argument advanced is inherenctly fallacious. It is not the intent of law that the community as a whole or a large number of complainants come forward to lodge their complaint or protest against the nuisance, that does not require any particular number of complanants. A mere reading of Section 133 (1) would go to show that the jurisdiction of the Sub-Divisional Magistrate can be invoked on receiving a report of Police Officer or other information, and on taking such evidence if any, as he thinks fit. These words are important. Even on information received the Sub-Divisional Magistrate is empowered to take action in this behalf for either removal or regulatising a public nuisance. Thus, the argument advanced by the learned Counsel cannot be accepted. In this case, the action was initiated on the basis of a Police Report also which is on record. The complaint received, was sent to the P.S. Palasia and on that basis on 18-9-1982 a report was filed u/s.133, Cr.P.C. by the Station Officer P.S., Palasia followed by show cause notice. Thus, there is no factual basis even for advancing such an argument.

10. It is also pertinent to note that the witnesses examined in this case and the evidence adduced in support of the police report unfailingly point to the nature of the nuisance, the emission of smoke from the boiler and its deleterious effect on the community is amply borne out from the evidence on record. In such circumstances the requirement of section 133, Cr.P.C. is fully satisfied. Sub-section (I)(b) reads as follows:-

"That 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".

The words are wide in their amplitude and undoubtedly cover the present case. Manufacturing of medicines in a residential locality with the aid of installation of a boiler resulting in emission of smoke therefrom is undoubtedly injrious to health as well as the physical comfort of the community and there is no scope for any interference in this revision petition on that account. In this connection it is significant to note that the petitioner himself had undertaken on 2-1-80 to shift their industry within 4 years and that period has also lapsed long back. It is unfortunate that even after the lapse of that period the Authorities concerned failed to remove the nuisance from a residential locality. As an affidvit sworn by one of the partners Rajendra Muchal on 2-1-80 states "that we shall shift the aforesaid boiler within 4 years of period from 23/2 Manoramaganj, Indore" Primarily no such time could have been granted under the law. The period proposal was objected to by the Joint Director and thereafter on 28-1-80 the petitioner informed the Joint Director to have it removed within 2 years. Even thereafter no action was taken for its removal. There is yet another letter on record dated 21-2-1980 to the cost of repetition that the Authorities had no right no grant such a time when the installation of a boiler in a residential locality and the running of an Industry itself was blatantly violative of the law. The Sub-Divisional Magistrate had also issued a notice to the Joint Director to explain the circumstances in which permission was granted to the petitioner for running the industry and it is on record that on 10-3-1980 the permission was granted for a period of 2 years on a clear undertaking given by the petitioner that within this period they would remove the factory to some other place, which expired on 9-3-1982 but surprisingly enough no effective action appears to have been taken thereafter for its removal.

11. At this stage it would be necessary to refer to a document which is on record of the trial Court. When a complaint was made to the Joint Director against the starting of factories in residential locality like Manoramaganj, the Joint Director in reply to the application dated 23-8-1976 informed Mahesh Tripathi that the application of M/s.Auto Agro Industries for establishing a workshop was rejected. This rejection so far as M/s.Auto Agro Industry is concerned was quite in accordance with law but the same Authority permitted the running of Caplic. This clearly goes to show that there was collusion of the Authority concerned with the petitioner and it was at the cost of public health and hazards. The action deserves to be condemned in no uncertain terms. The complainant has placed on record complaints made to the Joint Director even before the grant of permission to the present petitioner for running a factory. There is yet another letter on record issued by the Joint Director on 8-3-1979 informing one R.C.Cuna, resident of Manoramaganj that the present petitioner, a factory manufacturing medicines; was permitted to start the factory as it was according to the rules and regulations. There can be no blatant lie than this letter. In case of M/s.Auto Agro Industries a workshop is refused but Caplic manufacturing medicine is permitted and it is claimed that the permission was in accordance with rules.

12. It is nothing but a collection on the part of the Authorities who in disregard of their duty and sacrificed the larger interest of the community permitted installation of a boiler for a factory in a residential locality merely for their selfish aims.

13. With these facts on record duly proved when the very installation of the factory is itself contrary to law, there could be no ground for its being granted permission with an undertaking to remove the same collusion and callous disregard is writ large in the whole affair.

14. Pollution discharged from the "Chimney" knows no frontiers of localities and very often they lead to damage not only to the locality or the particular area where pollution originates but also to the neighboring localities and adjacent areas. Breathing itself becomes a problem in cases of air pollution and the Officers who are entrusted with the task to see that air pollution is not permitted in residential localities as the facts of this case have revealed can keep the law at bay and it is this callous disregard to the laws which at times has resulted in a sort of paralysis due to the corporate crime wave. It is a travesty that such corporate crime wave and criminal behavior on the part of such Authorities has not been made such a crime as to be punished with deterrent punishment. unfortunately willful and knowing violations of laws resulting in air pollution caused by auto exhaust radiation and gas pipe line safety standards are not considered crimes under the relevant statutes even if lives are lost as a result. Such crimes require courage, not routine duty, by officials to enforce the laws against such outrages and the Sub-Divisional Magistrate undoubtedly deserves a word of kudos. It should be remembered that environmental crimes dwarf other crimes to safety and property but the position of law as it stands in the matter of sentencing such environmental crimes is rather comfortable. A vagrant committing a petty theft is punished for years of imprisonment while a billion dollar price fixing executive or a partner in a concern as such the petitioner comfortably escapes the consequences f his environmental crime. The Society is shocked when a single murder takes place but air, water and atmospheric pollution is merely read as a news without slightest purturbance till people take ill, go blind or die in distress on account of pollutants that to resulting in the filling of pockets of a few.

15. Some forms of air pollution may be more pervasive, subtile and cumulative in their effects. But that which most immediately obtrudes itself on the eyes, the nose and the ears of the average citizen is exhaust smoke from motor vehicles. It has been calculated on the basis of a survey that more than half of these on the roads inadequately consume the hydro carbons of their fuel which both wastes scarce petrol of diesel and allows lethal gases notably carbon monoxide to escape.

16. Auto exhaust is a great cause of environmental pollution is a common site at times the riders relish the noise to the distress and damage of others but no action as such is taken against such owners or riders of motor vehicles studies have revealed that these automobile emissions alone account for 70% of carbon monoxide, 50% of hydro carbons, 35% of particulates and oxides of nitrogen in the atmosphere but air pollution in the environment caused by industrial emissions is yet another contributor. If environmental pollution is to be extirpated firstly it should not be permitted, must be prevented and if at all it taken place should be sternly dealt with. Chemical fertilizers are doubly injurious and violate nature.

17. It is a sorry state of affairs that the Joint Director, has permitted the installation and running a a factory in a residential locality the record which was eventually produced goes to show that our Town Planners have merely passion for files and papers and not the people otherwise it is inconceivable that such a factory manufacturing medicine could have been permitted in a residential locality.

18. The Sub Divisional Magistrate while passing the order directed removal of the factory as such while the Additional Sessions Judge confirmed removal to the boiler.

19. This modification in the order by the Additional Sessions Judge was in fact uncalled for. The nuisance to the community at large is not by mere installation of the boiler but also by the factory itself. In such circumstances while affirming the order passed by the lower Revisional Court the original order passed by the Sub-Divisional Magistrate was modified deserves to be restored and it is accordingly restored without any modification confirming the same.

20. The petitioner during the course of hearing had produced a certified copy of the judgment dated 18th October, 1983 it is made clear that this judgment and decree has nothing to do with the nuisance to the community and its removal in no way is affected by this decree.

21. For the foregoing reasons the revision petition deserves to be dismissed it is accordingly dismissed. The order passed by the Sub-Divisional Magistrate is confirmed. The public nuisance the factory's such the petitioner factory by immediately removed from the premises without any further loss of time. Smt.Sarla Tripathi who brought this conplaint before the Sub-divisional Magistrate incurring expenses of litigation deserves to be compensated by cost. The petitioner shall pay Rs.1000/- as cost to Smt.Sarla Tripathi who relentlessly prosecuted this cause of public nuisance. See R.L.&E Kendra Dehradun v. State of U.P. AIR 1985 SC 652. The record of the Courts below be sent back immediately. The record from the office of Joint Director, Town and Country Planning be also returned.

Revision dismissed