Bhan Singh vs Mohinder Singh

Dr. (Mrs.) Sarojnei Saksena, J.

In this revision the controversy revolves round the fact whether running of a saw mill and cotton ginning machine by respondent Mohinder Singh in the demised premises of respondent Sadhu Singh amounts to a public nuisance and its working is injurious to public comforts and health.

On petitioner''s initiation SHO of Police Station Mansa forwarded a report to D.S.P. Mansa reiterating that respondent Mohinder Singh is running saw mill and cotton ginning machine in the house of Sadhu Singh. Cotton and wood dust enters the house of complainant Bhan Singh. This machine is run by 8 H.P. engine, which causes vibrations and in turn is causing danger to the house of the complainant. Hence saw mill and cotton ginning machine be removed. This report was accepted by D.S.P. Mansa. Municipal Committee gave licence to respondent Mohinder Singh for installing saw mill and cotton ginning machine, but on the complaint of the complainant the licence was cancelled after a few days.

The complainant filed a petition under section 133 Cr.P.C. before the S.D.M. Mansa. On being noticed respondent Mohinder Singh submitted reply. During evidence complainant Bhan Singh adduced his evidence. Sadhu Singh respondent was examined as a witness of respondent Mohinder Singh. Mohinder Singh also examined some witnesses to support his statement. After recording the evidence of the parties, S.D.M. himself inspected the spot in the presence of many persons of the locality. On the basis of the evidence adduced before him and also considering his own observations formed at the time of local inspection, learned S.D.M. arrived at the conclusion that the running of saw mill and cotton ginning machine causes nuisance to the residents of the locality. Therefore, he ordered its closure within 15 days.

Respondents filed Criminal Revision, which was allowed on 18.2.1987 by the Additional Sessions Judge, Bathinda, holding that it is only a private nuisance; it does not come within the purview of public nuisance; the learned S.D.M. was more influenced by his own observations which he held after local inspection; it is two years'' old nuisance; at the time when Mohinder Singh obtained licence for installing saw mill and cotton ginning machine no neighbour objected to it and that the complainant has filed petition under section 133 Cr.P.C. because of his personal vendetta with the respondents. Learned Additional Sessions Judge also observed that the S.D.M. has relied on affidavits, which cannot be treated as evidence in the case.

The petitioner has assailed the findings recorded by the learned Additional Sessions Judge. The evidence adduced by the parties was read over during arguments.

Petitioner''s learned counsel commented that even respondents have admitted on oath that saw mill and cotton ginning machine are installed in a busy residential locality. Houses of various persons are adjacent to the house of Sadhu Singh where this saw mill and cotton ginning machine are installed. The complainant has proved that when saw mill and cotton ginning machine are operated with the help of 8 H.P. engine, it causes vibrations in the house of the complainant. He has also examined other witnesses who have proved that when saw mill is operated and cotton ginning machine is run it not only causes noise and vibrations but saw dust and small particles of cotton emit out of the house of Sadhu Singh and they are causing health hazard to the people of the locality. Hence, according to him, learned Additional Sessions Judge has set aside the very well reasoned order of the S.D.M. The S.D.M. was not influenced by his own observations which he held at the time of local inspection, but he also minutely scanned the evidence adduced by the parties.

I have gone through the record with the help of the petitioner''s counsel.

The respondents have admitted that these machines are being run with an engine of 8 H.P. and they are installed in a busy residential locality. It is also proved that the Municipal Committee granted licence to respondent Mohinder Singh to run the saw mill and the cotton ginning machine, but on the complaint of the petitioner the licence was revoked within a fortnight. The police has also supported the contentions of the complainant. The complainant has not only examined himself but has examined other persons of his locality, who have supported his version and have stated that wood dust and particles of cotton emit out of the house of the respondents and they fall on their houses and sometimes on their eatables as well.

The learned Additional Sessions Judge also observed that since this complaint has been filed by the petitioner alone and not by a large number of occupants of that area, it cannot be held to be a public nuisance. Even this contention has little force. It is not the intent of law that the community as a whole or large number of complainants must come forward to lodge their complaints or protest against the nuisance. Law does not require any particular number of complainants. A mere reading of section 133(1) would go to show that the jurisdiction of the SubDivisional Magistrate can be invoked on receiving a report of a police officer or other information and on taking such evidence, if any, as he thinks fit. Even on information received the Sub Divisional Magistrate is empowered to take action in this behalf for either removal or regularising a public nuisance.

Under section 133 Cr.P.C. if an act is found to be injurious to the physical comfort of the neighbours, it must also then be held that it is injurious to the physical comfort of the community. After all a community only consists of individuals and if a body of individuals are injuriously affected by a particular trade, the interests of the community would best be served by protecting them from injury. These observations were made by Justice T.P. Naik in The State of M.P. v. Manjit Raghu and others, 1964(2) Crl. Law Journal 94. In that case the accused was running a rice mill and was of the view that it does not cause nuisance as it is being run by an electric motor and thus it does not amount to nuisance.

In Himmat Singh and others v. Bhagwana Ram and others, 1988 Crl. L.J. 614 fodder tals were installed in residential colony. A Single Bench of Rajasthan High Court held that where there were fodder tals in a residential colony, to which fodder was brought daily during night by trucks, which were unloaded near residential houses in the morning and fodder was cut during the day by electrically operated machines, considerable noise would emit and sand laid wind containing small particles of fodder must, in all probability, be ever blowing out from the machines and spreading over in the air and moving in the direction in which wind was blowing. Sand was bound to spread over the roofs of residential houses in the locality and even to enter into the compounds and rooms of the houses constructed in the colony. There was also bound to remain continuous noise on account of cutting of fodder from at least five electric operated machines.

In this case also admittedly saw mill and cotton ginning machine are being operated throughout the day with the help of 8 H.P. machine. There is no roof over the saw mill. Saw dust must be emitting out of the premises from where the saw mill is being run and must be blowing with the wind in the direction wherever it was blowing and must be thereby spreading in the whole of the locality. So is the case with small cotton particles which are bound to emit out of the premises and spread over whole of the area along with the wind blowing therein.

In Krishan Gopal v. State of Madhya Pradesh, 1996 Crl. L.J. 396, a Single Bench of Madhya Pradesh High Court was considering running of a factory in residential locality. It was held that where a manufacturer was running a boiler in a residential locality for manufacturing glucose saline with the permission of the Authorities concerned like Joint Director, Town and Country Planning, the installation of a boiler in a residential locality and the running of an industry itself was blatantly violative of the law. Manufacturing of medicines in a residential locality with the aid of installation of a boiler resulting in emission of smoke therefrom is undoubtedly, injurious to health as well as physical comfort of the community.

In Govind Singh v. Shanti Sarup, 1979(2) SCC 269 the Apex Court considered whether construction of Chimney and oven by a bakery owner on G.T. road would amount to public nuisance. In that case also the Magistrate visited the spot, held enquiry and submitted his report saying that the Chimney besides being an encroachment upon public place, was emitting smoke on G.T. road affecting health of the people and the oven could cause conflagration. The Apex Court held that where health, safety and convenience of the public at large are involved, the safer course would be to accept the view of the Magistrate who himself had seen the hazard, and thus the Magistrate''s order to demolish those constructions was held proper.

In this case it is obvious that running of saw mill from a premises which has no roof and running of a cotton ginning machine with an engine of 8 H.P. in a busy residential locality is certainly causing a public nuisance. Saw dust must be emitting out of the premises. Small particles of cotton must be blowing hither and thither with the wind and must be causing nuisance, health hazard and other inconveniences to the people of that locality. Even the vibrations and heavy noise of the running of the machine would be causing nuisance to the residents of that locality. Respondents have no right to destroy the ecology, degrade environment and pose health hazard. Running of the saw mill and cotton ginning machine is a constant source of unhygienic ecology and riskprone to the inhabitants of the locality. Apart from constitutional mandate to protect and improve the environment, there are plenty of postindependence legislation on the subject but more relevant enactment for our purpose is the Environment Protection Act, 1986.

Thus, in my considered view, the learned Additional Sessions Judge fell into an error in disagreeing with the observations of the learned SDM and thereby reversing his well reasoned order on fragile reasons.

Resultantly, the revision is hereby allowed. Reversing the order of the learned Additional Sessions Judge, the order of learned S.D.M. is restored. The respondents are hereby given one month''s time to remove the nuisance and to close down running of saw mill and cotton ginning machine.