Berhampur Municipality vs Oruganti Kondaya

K.B. Panda, J.—On the basis of a prosecution report filed by the Executive Officer, Berhampur Municipality, the Respondent was tried for having committed offence under Sections 383, 343, 344 of the Orissa Municipal Act, 1950 (hereinafter referred to as the Act) and Section 290 Indian Penal Code under which cognizance was taken on 27-2-1974. Finally the Respondent was acquitted of the charges on 11-10-1974 by the Judicial Magistrate, 1st. Class, Berhampur occasioning this appeal.

The charge as per the prosecution report was that the Respondent -

Prior to 3-12-1973 and onwards till to-day is storing coal for sale by the side of the hospital building where City Hospital staff are residing and by the side of the residence of Shri K. C. Panigrahi, Advocate, City Hospital road on the Government land and private land without obtaining licence from the complainant required u/s 290, O. M. Act and hence liable for punishment u/s 383 O. M. Act.

That the said storing and sale of coal has caused and continues to cause much inconvenience and annoyance to the neighbours and passers by and equally injurious and dangerous to public health and safety. The accused is hence liable for punishment u/s 290, Indian Penal Code.

That the accused was served with a notice to remove the said nuisance (storing coal for sale) u/s 343(a) O. M. Act by the complainant in Memo No. 54 dt. 2-1-1974 and the accused failed to comply with the said notice. He is hence liable to be punished u/s 343(b) and 344(3).

Also there was a prayer for removal of the nuisance u/s 133, Code of Criminal Procedure during the pendency of the prosecution. This is signed by the Executive Officer on 9-2-1974, and prosecution has been sanctioned by the Chairman on 19-2-1974,

The plea of the Respondent was that he had a licence; that he has received no notice as alleged; that he has his depot there for the last seven years and he is paying sales tax therefor; that he has got a compound wall around the depot and that his adjacent neighbours such as Bhagaban Das and others do not complain about the existence of the depot there, whereas the witnesses for the prosecution were lying.

The prosecution examined three witnesses of whom P.W. 1 is the health Officer. Berhampur Municipality and P.W. 2 and 3 are two persons who reside in the locality to state that the existence of the coal depot there causes annoyance and inconvenience to them.

The defence has examined two witnesses of whom D.W. 1 is a neighbour who owns a shop in front of the depot and who states that the depot is inside a compound which does not inconvenience the public, D.W. 2 is none but a Bill Collector of the Berhampur Municipality (complainant) for Ward No. 16.

Besides the oral evidence, the prosecution has filed two document support of its case. The first one (Ext. 1) is dated 2-1-1974 and is a notice purporting to ask the Respondent to remove the depot and Ext. 2 dated 27-2-1974 is another notice asking the Respondent to take back the deposit.

On the side of the defence, four documents have been filed marked as Exts. A. B, C and D. Exts. A and B are dated 22-3-72. The first one is in respect of tax for fuel depot amounting to Rs. 15 ; Ext. B is for the coal depot amounting to Rs. 10/; Exts. C and D are dated 28-12-1973, the first one being in respect of the fuel depot for Rs. 15/- and the other for coal depot for Rs. 10/-. These four receipts (Exts. A to D) are miscellaneous receipts under Form No. XXXIV granted by the Berhampur Municipality on behalf of the Extensive Officer.

On an assessment of the oral and documentary evidence, the learned Court below held that none of the charges against the Respondent has been proved and so acquitted him as aforesaid.

It was contended on behalf of the Municipality (Appellant) that the reasons given for acquitting the Respondent are not sustainable; that even if there might be some doubt about commission of any offence u/s 343 of the Act, there cannot any doubt that the Respondent has committed an offence both u/s 290 of the Act as well as Section 290 of the Indian Penal Code.

At the outset I may state that cognizance having not been taken u/s 290 of the Act and this being a summons case, the consideration whether the Respondent has committed an offence thereunder cannot arise.

Next coming to Section 343 of the Act, it postulates the consequence of failure to obtain licence or of breach of the same. The material portion of the section runs thus:

If under this Act or any rule, regulation or bylaw made under it, the licence or permission of a municipal councilor its Chairman or the Executive Officer, as the case may be it is necessary for the doing of any act and if such act is done without such licence or permission, or in a manner inconsistent with the terms of any such licence or permission, then

(a) the Chairman or the executive Officer may by notice require the person doing such act to alter, remove, or as far as practicable, restore to its original state the whole or any part of any property, movable or immovable public or private, affected thereby, within them to be specified in the notice and further.

(b) x xx xx xx

unmistakably this section pre-supposes that for the doing of any act, a permission is necessary and then after obtaining the necessary permission, if the act is done inconsistent with the terms of such licence or permission, it is punishable. The way in which this section is to be given effect to is by giving a notice specifying during which the act complained of should be remedied. In the instant case, the notice (Ext. 1) is dated 2-1-1974. Which does not indicate that it had been served on the Respondent. The other notice (Ext. 2) filed on behalf of the prosecution similarly does not indicate to have been served on the Respondent. It is unfortunate that the prosecution relied on such documents which are purported to have been served on the Respondent but ex facie do not indicate anything of the nature. What is more significant is that under Ext. 2 dated 27-2-1974, the Respondent had been asked to take refund of the tax deposited by him. Probably it is the tax collected by D.W. 2 under Exts. C and D but before the date of issue of that notice, prosecution had already been signed by the Executive Officer on 9-2-1974 and prosecution sanction accorded on 19-2-1974. In this background the issue of Ext. 2 to the Respondent is intriguing and that very well fits in with the defence theory that no notice had ever been served on him. All those have their due impact on the bona fides of the prosecution.

Next I would refer to the notification (Ext. 3) dated 26-1-1973 which according to the Appellant is the starting point of the prosecution in as much as it had been promulgated u/s 290 of the Act purporting to come into force on 1-4-1973. On the basis of this it was argued that if the Respondent wanted to have any business in coal he should have made an application and obtained a valid licence for the same. Further the Act having come into operation from 1-4-1973, the application, if any, in that behalf would only arise after that date. Thereby it was insinuated that the Respondent had no such business prior to this. But evidence is otherwise both oral as well as documentary. In this context, I may only refer to Exts. A and B dated 22-3-1972. In both these exhibits, the Municipal Tax Collector (D.W. 2) had in fact realised tax one for the fuel depot and the other for the coal depot. This alone cuts at the root of this argument, namely, that it was a business which the Respondent had after the Gazette notification referred to above. That apart, as already indicated, there being no cognizance u/s 290 of the Act, this question need not be discussed at greater length.

The only point that now survives for consideration is if the Respondent is guilty of having committed an offence u/s 290, Indian. Penal Code. "Public nuisance" has been defined u/s 268, Indian Penal Code, as any act that caused 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. In the instant case, the evidence regarding the alleged public nuisance is thus: P.W. 1 in chief stated that

I have received complaints from the public as it caused inconvenience and annoyance to the public.

But in cross-examination he stated that -

Except the witnesses cited the P. R. no other in person has complained before me. In Military line also there are coal depots.

If the public complaints referred to by this witness is oral than it is confined to the witnesses mentioned in the prosecution report and if otherwise, namely, "written" there is no evidence of the same and it would be presumed that there are none. In the prosecution report, five names have been given including the Health Officer, Municipality, that is P.W. 1, and it is stated that there are many others and many documentary evidence. P.W. 2 has stated in chief that coal dust is coming to his hotel and causing annoyance and inconvenience. He further stated that

We complained and sent report to the Municipality. My hotel is facing much inconvenience to the dust of the coal.

However, no such "report" has been filed in this case. He further stated that when the truck comes with coal loaded it causes inconvenience to the traffic. There is no evidence to support the same. In cross-examination it was asked if he could say the date on which traffic was inconvenienced but he had no answer to give. He made it clear in cross-examination that the complaints filed were typed and the man who brought the petitions to he signed by him as a complaint, is his son-in-law Narsingha

Mohapatra who according to him is not pulling on well with the Respondent and he adds that it is because of the coal dust coming from his depot. He also admits

who other objected to the location of the coal depot in the junction I cannot say.

P.W. 3 states that the Respondent has opened two coal depots on either side of the road, and it is very difficult to live in the area due to dust (coal). They moved the Municipality to remove the coal depot and also the Sub-Collector to evict the Respondent and even after that eviction proceeding he is still having the depot there within bamboo enclosure. In cross-examination he admits that his residential house is intervened by the National High Way which is 40 feet wide. According to this witness, the coal depot is running there for one and half year by the time he was deposing on 26-6-1974 taking it back to the beginning of the year 1973. But ,the documentary evidence, namely, Ext. B is contrary to this statement. According to d. w. 1, the Respondent is having his coal business for the last 7 to 8 years and D.W. 2 states how he had collected licence fee for coal and timber from the Respondent for the years 1971-72, 1972-73 and 1973-74. It is in evidence that close to this depot are the hospital and the State Bank. Barring these two witnesses, there is no evidence that the public are inconvenienced either due to coal dust or due to unloading of coal on the road thus causing inconvenience to the traffic. Public nuisance and private nuisance are well defined. Thereby I should not be taken to suggest that all the persons of a particular locality should be examined to prove public nuisance. But all the same if two neighbours have come and complained of any nuisance that by itself would not become a public nuisance but a private one for which a civil action is the proper remedy for which no criminal action can lie. If in fact it was a public nuisance of that magnitude and as the record indicates that it has existed there for the last 7 to 8 years it must have exasperated the inhabitants of the locality to support the cause of the complainant. But on this meagre evidence coupled with the attitude already referred to in prosecuting the Respondent, I am unable to hold that an offence u/s 290, Indian Penal Code has been established against the Respondent.

This is a case of appeal against acquittal and unless the finding is perverse, there is no scope for interference. From the discussion it would follow that the ultimate finding of the learned lower Court, no matter what reasons he has assigned therefore - with which I may not agree, is correct and so the appeal is dismissed.

Appeal dismissed.