Reported in 1981 K.L.T. 113

P.C.Cherian Vs. State of Kerala.

JANAKI AMMA, J:-1. Criminal R.P.No.284 of 1978 is against the order of the Sub-Divisional Magistrate, Kottayam, in M.C.No.4 of 1978. Ciminal R.P.No.328 of 1978 is against the order of the same court in M.C.No.5 of 1978. The orders impugned were passed under Sec.138 of the Code of Criminal Procedure (for short the Code), under similar circumstances in peoceedings initiated on the basis of reports of the Sub Inspector of Police, Changanacherry. The reports are dated 21-3-1978.

2. The petitioner in Cr.R.P.No.284 of 1978 is the Managing Partner of the Padinjarekkara Rubber Industries, Veroor, Changanacherry. The petitioner in Cr.R.P.No.328 of 1978 is the Managing Partner of Aswathi Rubber Works, Veroor, Changanacherry. Both the concerns are having their factories situated in the industrial Estate, Veroor, and were started for the manufacture of rubber products.

3. The preliminary order passed by the Sub Divisional Magistrate against the petitioner in Cr.R.P.No.284 of 1978 under S.133 of the Code stated that information had been received that the petitioner was engaged in mixing rubber with carbon on a voluminous scale in his factory, that the buildings in which the mixing operations were being carried out were not adequately ventilated, with sufficient devices to present the carbon black from escaping into the atmosphere, that in the absence of precantionary measures the carbon black spread in the atmosphere and used to get deposited in the neighbouring locality, where there are a large number of residential houses and a Church very close to the factory, that the deposit of such carbon black affected the life and natural avocations of the people in the locality resulting in disastrous injury and discomfort to the public at large and also affected adversely the religion congregational activities of the Church, causing mental agony to the congregation. The petitioner was required to stop the carbon mixing process on or before 23-3-1978 or to appear before the Court on the same day and show cause why the order should not be enforced. A similar order was passed against the petitioner in Cr.R.P.No.328 of 1978. Both the petitioners filed objections.

4. The petitioner in Cr.R.P.No.284 of 1978 contended as follows: The factory was establsi in the year 1969 and from then onwards it was manufacturing rubber goods using carbon black. These were no complaints against the working of the factory till the middle of 1977. No public nuisance was being caused by the working in the factory. Safficient precautionary measures to prevent carbon black from escaping into atmosphere had been taken. The working of the factory did not cause deposit of carbon black in the neighbouring locality. Carbon dust has no toxic effect on human beings. It does not cause disastrous injury or discomfort to the public or mental agony to the community of large. The Government of Kerala while establishing the Industrial Estate which was solely meant for the manufacture of Rubber and Plastic Goods, was well aware that carbon black was one of the essential ingredients for manufacture of rubber goods. In the Industrial Estate where the factory of the petitioner is situate there is a Government owned factory by name "Common Facility Service Centre" carrying on the same business as the revision petitioner. The precautions made in the revision petitioner's factory for controlling the emanation of carbon dust was much more efficient than that of the Common Facility Service Centre. Even if there was any deposit of carbon black as alleged, it was do to emanation of carbon black from the Common Facility Service Centre and not from the revision petitioner's factory. No proceedings under Sec.133 of the Code have been initiated against the other factories including the Government owned factory. The action taken against the revision petitioner was arbitrary, without any bonafides and would amount to denial of his fundamental rights. If the factory was not allowed to function the loss that at might sustain per day would work out it Rs.2000/- and more than sixty persons would lose their job directly or indirectly. The revision petitioner also alleged that a suit O.S.No.387 of 1977, had been filed against the Vazhappally Panchayat for a permanent injunction restraining the Panchayat from doing any act or passing any order or taking any steps to stop the functioning of the factories or any act for the cancellation of the licence issued to the revision petitioner under the Kerala Panchayats (Licencing of Dangerous and Offensive Trades and Factories) Rules, 1963. A temporary injunction had been issued against the Panchayat and it was during the pendency of the suit that the present proceedings were initiated. A division Bench of the High Court has in W.A.No.33 of 1978 issued an order granting police protection for the proper working of the factory. If the order directing stoppage of carbon mixing was to be made absolute that would amount to closure of the factory and denial of job facilities to the workers therein and loss of earnings to the petitioner. Similar contentions were raised by the petitioner in Cr.R.P.No.328 of 1978 also.

5. The enquiry in both the cases was conducted simultaneously Pending enquiry an application was filed by the Vicar of the St. Joseph;s Church, Veroor, to get himself impleaded in the proceedings, as a person worst affected by the nuisance. The orders impugned mention that the prayer was granted to both the proceedings. After an elaborate enquiry the Sub-Divisional Magistrate held that there was profuse use of carbon black in the two factories, that there were no precautionary measures for preventing carbon black from escaping into the atmosphere and depositing in the neighbouring area, and that such carbon so settled was found to cause discomfort, injury and nuisance to the people of the locality and obstructed their avocations. the Court therefore made the conditional order absolute in both the cases, and directed the petitioners in the two revision petitions to stop the mixing of the carbon in the factories forthwith. These orders are being challenged in the two reivisiokn petitions.

6. A preliminary objection was raised that the proceedings before the Magistrate were vitiated in that the Court impleaded the Vicar of the St.Joseph's Church as a party to the proceedings. The argument is that in proceedings under S.133 initiated by the Magistrate private individuals have no right to get themselves impleaded and the Court has no jurisdiction to allow a third party to the proceedings to let in evidence in support of his case.

7. There is weight in the contention, Proceedings under Chapter XXIV of the Code are essentially criminal in nature. S.138(1) states that the Magistrate should take evidence as in a summons case. The person at whose instance proceedings are initiated may no doubt let in evidence in support of the existence of the public right "as in a summons case." But in a case where proceedings under Sec.133 of the Code are initiated on the report of a police officer there is no provision for a private persons, who is interested in establishing the public right to get himself impleaded. He may however invoke the provisions contained in Sec.301 or S.302 of the Code and seek the permission of the Court either to assist the presecution or conduct the prosecution as the case may be. The order impleading the Vicar of the St. Joseph's Church as a party to the proceedings is therefore not sustainable. That does not however mean that the proceedings in these cases are vitiated because though the order mentions about the impleading of the vicar, the same is not seen carried over in the order passed. If the Court has examined witnesses at the instance of the Vicar, that is not an irregularity which vitiates the proceedings.

8. From the evidence adduced in the two cases it has come out that Padinjarekkara Rubber Industries (the petitioner in Cr.R.P.No.284 of 1978) was started in 1969 and the Aswathy Rubber Works (the petitioner in Cr.R.P. No.328 of 1978) was started in the year 1973. The factories of both the concerns are situated in the Industrial Estate, Veroor. They were originally designed for the manufactore of rubber and plastic goods. By about 1974 other factories engaged in the manufacture of rubber goods began to work in the estate and the factories of the petitioners suffered keen competition; they stopped manufacture of rubber goods. They entered into contracts with major tyre factories like the M.R.F., Fire Stone and Dunlop and started the service carbon mixing process in the form of master batch (masticated rubber carbon mixture). These tyre factories were experiencing difficulty in getting sufficient quantity of master batch due to frequent power cuts in the places where they were having the facility. The petitioners found their new venture encouraging were having the facility. The petitioners found their new venture encouraging From 1975 onwards they took up service mixing on a large scale as a job work and began to provide the master bath for the tyre factories. The manufacture of the master batch requires profuse use of carbon black. The excess carbon black usually disseminate into the atmopshere. To prevent such disemination gadgets have to be provided. When master batch is manufactured in bulk quantities it is usual to install Banbury type equipments to prevent dissemination of carbon. The prosecution case is that petitioners failed to provide the necessary equipments to prevent the dissemination of carbon black with the result that the excess carbon black got into the atmosphere, settled over the neighbouring area and caused discomfort, injury and nuisance to the people of the locality and even prevented them from attending to their avocations. There are about six hundred Christian Families in the parish of the St.Joseph's Church Veroor. A good number of people used to attend the Church for prayers on Sundays. They found their clothes soiled as a result of the atmospheric pollution. Carbon particles got deposited in the Holy Vestiments and even in the Holy Eucharist. A public agitation started since November, 1975 against the pollution. There were demands for the cancellation of he licence issued to the petitioners. The petitioner filed O.S.No.487 of 1977 before the Subordinate Judge's Court, Kottayam, for an injunction restraining the Vazhappally Panchayat from cancelling the licence issued to them under the Kerala Panchayats (Licensing of Dangerous and Offensive Trades and Factories) Rules 1973 and other reliefs. An interim injunction was issued by the Court. They also filed O.P.No.4853 of 1977 before this Court under Art.226 of the Constitution for the issue of a writ of mandamus or other appropriate writ directing the District Superintendent of Police and his subordinates in charge of the area to provide the petitioners adequate police protection for their person and for the working of the factory, ensuring free ingress and egress for the employees. In the meanwhile a meeting was convened on 18-7-1977 by the Minister for Industries, of the representatives of the factories the Church, the labourers and the residents of the locality to discuss about the alleged nuisance due to dissemination of carbon black from the petitioners; factories'. It was decided to have an expert report from the experts of the Council of Scientific and Industrial Research Centre at Nagput and to implement their proposals within three months. It was also decided that the expenses for cleaning the premises of the Church and articles belonging to it which got contaminated by the carbon black should be borne by the factories. O.P.No.4853 of 1977 was disposed of by a single judge of the Court holding that until the petitioners provide safeguards to prevent their manufacturing process being a petential danger to the prople of the locality no assistance could be rendered to them. W.A.No.38 of 1978 was filed against the decision. The Division Bench which decided the appeal took into account the facts that the District Medicial Officer and the inspector of Factories had recommended the issue of licence to the petitioner and that an injunction had been issued by the Subordinate Judge, Kottayam, restraining the Panchayat from cancellation of the licence and observed that the arms of the law appeared to be long enough and strong enough to deal with the petitioners in case they contravened the provisions of any statute or rules or were found to indulge in offensive and dangerous activities. The appeal was allowed, granting necessary protection to the petitioners in case there arose "any danger to their lives and property and to assure free ingress or egress of their workers to the factory and free movement of goods into and out of the factory premises. The appellate order was p[assed on 2nd March, 1978. It was thereafter on 21st March, 1978, that the Sub Inspector of Police, Changanacherry, presented reports on the basis of which the Sub Divisional Magistrate, Kottayam, initiated proceedings under S.133 of the Code. The reports dated that the factories of the petitioners were engaged in the work of mixing of carbon and rubber, that the mixing operation was going on day and night covering 5 to 10 tons of rubber per day, that the building had no ventilation, that there were no precautionary measures to prevent the escape of carbon black into the atmosphere, that the carbon black was getting deposited in the neighbouring locality which is a thickly populated area and that the spread of carbon black being injurious to the health of the people of the locality was a nuisance which should be stopped. The Magistrate after taking evidence directed the stoppage of service mixing of carbon in both the factories.

9. One of the contentions raised by the petitioners is that in view of the order in W.A.No.38 of 1978 and the injunction in O.S.No.487 of 1977, the order stopping the mixing operations is unsustainable. But from the facts already detailed it is evident that neither the civil suit nor the order in W.A.No.389 of 1978 dealt with the question of the existence of nuisance or the abatement thereof. They were concerned with the right of the petitioners to carry on the work of the factory unhampered by the Panchayat Authorities or the public The issue whether there was dissemination of carbon causing hazard to the health of the community was not the subject of an enquiry in those proceedings. Therefore, those proceedings are no bar for taking action under Sec.133 of the Code.

10. It was then argued that when there are statutes like the Panchayat Act and the Factories Act, prescribing for the issue of licence on satisfying conditions which include absence of hazard to health, it is not within the province of the Magistrate to see whether those conditions are satisfied. The contention is however not available in this case since it is not made out that licences have been issued to the petitioners in the two cases for carrying on the work of carbon mixing. Ext.A2 the application for the licence for the year 1977-78 presented by the Padinjarekkara Rubber Manufactures confines the prayer to the running of a rubber factory. Even assuming that the licence authorises the factory to carry on the work of carbon mixing, it is open to the Magistrate to invoke the powers under S.133 of the Code if the exigencies warrant such as extreme course.

11. Strenuous efforts were made in the Court below and in this Court to make out that there are no grounds for invoking the jurisidction under Sec.133 of the Code, that there has been no emission of black carbon at the instance of the petitioners, and that adequate safeguards are there to prevent dissemination of black carbon. There is also the contention that black carbon has no toxic effect and therefore even it it escapes from the factories and gets into the atmosphere, that will not amount to public nuisance so as to call for action under S.133 of the Code. Oral and documentary evidence adduced, however, does not support the case of the petitioners. Eight witnesses besides two officials as court witnesses have been examined in support of the case of two officials as court witnesses have been examined in support of the case of nuisance in M.C.No.4 of 1978, against which Cr.R.P.No.284 of 1978 has been filed. Pws.1,6 and 8 representing the St.Joseph's Church have given evidence that the carbon black emanating from the factories gets deposited on the walls of the Church, the Holy Vestments and even the Holy Encharist when it is taken out, contaminates the atmosphere and soils the wearing apparel causing discomfort and annoyance to the parishioners who attend the Church Pw.2 runs an oil mill at a distance of 5 fee from the Padinjarekkara Factory, within the vulnerable range of the carbon black pollusion. He would say that coconut oil kept in the mill used to get contaiminated by contact with the carbon black emitted from the factory. Pw.3 was running a hotel near the factory. He had to stop his work because food articles prepared in the hotel got polluted by the deposit of carbon black. He used to have itching sensation on his body due to collection of carbon particles. He exahibited before the Magistrate the Carbon deposited on his body by scratching the skin. Similar evidence has been let in in M.C.No.5 of 1978 also. The counter evidence adduced on the side of the petitioners is of an interested nature being confined mostly to the oral testimony of the managing partners of the petitioners and their employees. The learned Magistrate has rejected their evidence.

12. There is a case for the petitioners that the carbon that used to be deposited in the neighbourhood is not from their factories but from the Common Facility Service Centre owned by the Government and situated in the Indestrial Estate. The Common Facility Service Centre was started for providing service mixing for the unit factories within the Industrial Estate. The mixing is not done on a large scale but only to meet the actual requirement of the small factories inside the Industrial Estate. Dr.Jose, the Joint Director of Industries in charge of the Industrial Estate who has been examined in both the cases, has given the details of the working of the Common Facility Service Centre. The Centre has all sorts of gadgets and equipments fitted to it to prevent carbon black from escaping into the atmosphere. There was no complaint of pollution when the Common Facility service Centre along was working. The complaints started only after the factories of the two petitioners began to manufacture master batch on a large scale around 1975, for supply to the big tyre factories. He would also say that there are no adequate safeguards against dissemination of carbon black in the factories of the petitioners. The ducts and fans provided could not prevent the carbon emanation effectively. That the two factories of the petitioners had gegun service mixing on a big scale is also made out from the fact spoken to by the witnesses that there was no pollution when the two factories remained closed.

13. Although the petitioners denied that their factories were responsible for the deposit of carbon black in the neighbourhood, there are documents produced which clearly make out a case of pollution at their instance. Ext.A3 in M.C.No.4 of 1978 is a letter written by the Production Manager of the Padinjarekkara Factory to the Parish Priest, of the Veroor Catholic Church to that letter the manager undertook to do all that was possible for the prevention of carbon black flying and invited from the priest suggestions other than those involving stoppage of work. Ext.A4 is the proceedings of a conference convened by the concerned Ministers which was attended by the representatives of the two factories meant for the stoppage of pollution due to black carbon. There is also evidence that the petitioners undertook to defray the expenses incurred by the St. Joseph's Church for removal of the carbon deposits on the walls of the Church. In the fact of the above evidence the findings in the two cases that carbon black was emanating from the factories of the petitioners contaminating the atmosphere and was causing deposits of carbon in the neighbourhood do not call for interference. That the devices stated to have been adopted by the two factories to prevent black carbon from escaping into the atomosphere are grossly inadequate is also established beyond doubt.

14. The further question is whether there is weight in the contention that carbon has no toxic effect on human body and dissemination of carbon is not a public nuisance. It is sheer common sense that if the atmosphere gets contaminated with carbon particles, visible or unvisible there is every risk that they would get themselves deposited on the bodies, and get into the respiratory organs of the people residing in the neighbourhood. The evidence is that the particles get deposited on the wearing apparel of the people and the walls of buildings not to mention the other umpteen articles which may get affected by the deposit. This is therefore an outstanding instance of air pollution which has become a menace to people in the industrial cities. The term air pollution according to the definition adopted by the W.H.O., is limited to the situations in which the outdoor ambient atmosphere contains materials in concentrations which are harmful to man and his environment. "Air pollution has been shown to increase the incidences of emphysema, bronchitis, pneumonia and asthma. It is suspected of being an ancillary cause of lungcancer and arterios-clerosis. Air pollution obscures vision, damages buildings, destroys crops and alters weather". (See Environmental Legislation by Williams and Hurley page 34). The Supreme Court remarked in Ratlam Municipality V. Vardhichand (AIR. 1980 SC 122);

"Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law."

15. To hold that the deposit of carbon black in the instant cases is a public nuisance it need not necessarily be a hazard to the health of the people. The word public nuisance is not defined in the Code; but S.2(y) of the Code states that words and expressions out defined therein but defined in the Indian Penal Code have meanings respectively assigned to them in that Code. S.268 of the Indian Penal Code defines public nuisance as follows:

"Public nuisance:-A person is guilty of a public nuisance, who does any act or is guilty of an illegal 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, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right."

Thus, under the definition any act which causes annoyance to the public is a public nuisnce. There is no scope for doubt tht deposit of carbon black on the clothes of the residents which make them soiled, and their deposit on food articles would cause annoynce to their owners. The manner in which the work in the factories of the petitioners was being conducted amounted to a public nuisance and was also injuries to the health and physical comfort of the community.

16. An argument waas advanced at the time of hearing that there is no evidence as to which of the two factories involved was responsible for the emanation of carbon nd the Court only proceeded on the footing that it waas the carbon black from the two factories together that was casing nuisance. This does not appear to be correct. The court has entered separate findings in the two cases that the working of the concerned factory, viz., the service mixing in large guantifies of carbon for supplying major tyre factories is injuries to the physical comfort of the community.

17. The argument based on the decision in Ram Autar v. State of U.P., AIR 1962 SC 1794, that the stoppage of work of the factories would deprive the workers thereof their means of livelihood has no application in the cases before us because the danger that the general public has to face by the service mixing of carbon without adequate equipments to prevent dissemination of carbon outweighs the advantage in the form of jobs for a few persons and that too under threat of hazards to their own health.

18. We have no hesitation in holding that the Magistrate was justified in invoking his powers under Sec.133 of the Code, in initiating action against the petitioners and in directing them to stop the service mixing of carbon in their factories. We, however, make it clear that itis open to the petitioners to restart the work of service mixing of carbon after introducing gadgets or equipments which would prevent dissemination of carbon black into the atmosphere. In order to avoid further trouble and a repetition of similar actioin against them they may choose the equipments to consultation with qualified experts in the field of environmental hygiene and to the satisfaction of the authorities concerned.

The Criminal Revision Petitions are dismissed with above directions.