Bijay Kumar Das vs Pramod Chandra Rath

S.K. Mishra, J.—Heard learned counsel for the petitioner and the learned counsel appearing for the opposite party. The learned counsel for the opposite party files counter to the petition dated 28.10.2014 filed by the petitioner for deputing an advocate commissioner to inspect the spot and ascertain the actual state of affairs regarding the nuisance created by the opposite party.

In this revision, the petitioner, being the 1st party member in criminal Misc. Case No. 712 of 2013, which is a proceeding under Section 133 of the Cr.P.C. assails the order of learned Addl. DCP-cum-Executive Magistrate, Cuttack on 03.03.2014 dropping the proceeding and vacating interim order passed earlier.

The proceeding under Section 133 Cr.P.C. was initiated on the basis of petition filed by the 1st party member on 04.09.2013 to direct the 2nd party member to prohibit the hotel industry, remove the nuisance created by the 2nd party member and seized the hotel industry, which is being carried on in an residential area causing injury to the health of the family members of the 1st party member over the Hal Khata Nos. 111/66 & 87/748(P) corresponding to Sabik Plot Nos. 57 and 196 measuring an area Ac. 0.050 decimals in Mouza: Cuttack Sadar, Unit No. 6, Deulasahi North side under the Bidanasi Police Station in the district of Cuttack.

The case of the petitioner, in brief, is that the petitioner is an inhabitant of the lower policy colony near the wireless office over the aforesaid described plot. The said plot is situated in a peaceful residential area. A school, namely, Saraswati Sishu Mandir is also situated near the Plot No. 87. Police Officer quarters are also situated there since long. The river Mahanadi is 300 meters distance from his residence. In between the residential plot of the 1st party member and the school, a star hotel namely "Pramod Convention and Club Resort" belonging to the 2nd party member has been established in the year 2011-12 over he same plot towards west, which is bi-plot of plot No. 87 and the aforesaid hotel is constructed adjacent to the residential plot of the 1st party member.

The petitioner avers in his petition that he has installed five HP motors, 5 HP Blowers and Chimney, Central A/G motors, two high power deep fridge and two high power exhaust fans just on the boundary wall of the north-west without leaving any space as per the CDA building rules. The aforesaid motors and tin blowers are producing high sound, which is unbearable from morning to mid-night. There is also irritable smell which is being produced from its kitchen, which exists on the west side of the complainant''s bed room. It was further submitted that a series of machinery have been installed in a tin roof house constructed over the western side boundary wall of the petitioner, which is only 2 to 3 fit distance from the bed room of the 1st party member. The kitchen and security guard office have been constructed just over the north-west boundary wall of the petitioner, as a result of which the entire family members of the petitioner have been suffering from bad smell, smoke and large volume sound. Further, the entire building of the petitioner is vibrating due to voluminous motor sound day and night. It is further averred that the waste materials of he kitchen, polythene and wine bottle have been thrown in front of the gate of the 1st party member. Due to such high sound pollution as well as air pollution, the entire family members of the petitioner have been suffering day and night and they have been passing the night without sleeping due to (i) high volume of sound created by series of machinery, (ii) smoke with irritated smell, (iii) high volume talking of the employees inside the kitchen as well as outside of the kitchen and the security guard and (iv) bad smell of waste materials. It was, therefore, submitted that the aforesaid hotel industry has been established in the residential area, which is not permissible under law. Hence, the petitioner prayed to direct the 2nd party member to prohibit the hotel industry, remove the nuisance caused by the 2nd party member and seize the hotel industry.

A report was called for from the IIC, Bidanasi Police Station after inquiry. The said report indicates that the 1st party member has his residential building over a plot vide No. 87/748(P) adjacent to Pramod Convention and Club Resort (hotel) owned by the 2nd party member on its west side. It is further reported that the 2nd party member runs his hotel over his plot vide No. 87 surrounded with walls. The allegation of the 1st party member is that the second party member has installed five motors, Central A/C unit, high power deep fridge; exhaust fans etc. causing noise as well as pollution brings inconvenience to him. It was observed that during enquiry the second party member runs his hotel within his premises but it was initially causing inconvenience to the 1st party member as the above high sounding equipments'' were installed by the side of his residence. It was further observed that in the meantime the 2nd party member has shifted all those equipments to the other side of the plot including the face of the exhaust fan. As regards the approval of establishing hotel industry in residential area and sanction of pollution certificate etc., come under the jurisdiction of the CDA authority and State Pollution Control Board. The inspection report submitted by Dr. R.K. Mishra and Dr. A.K. Mallick, Environmental Scientists on the public complaint from the petitioner reveals that M/s. Pramod Convention and Club Resort is operating hotel having lodging and multi cuisine restaurant with facilities just near to the resident of the petitioner and Saraswati Sishu Mandir School. The report indicates that the building of the complainant exists just adjacent to the kitchen of the hotel. The hotel has been established without obtaining consent to establish and operate it from the Board. It has 20 rooms of double bed capacity and two restaurants of 40 seat capacity. The kitchen has provision of chimney on the back side of hotel near north-east direction, which connects from the kitchen chimney hood to up-to first floor for emission of smoke. The report further reveals that hotel authority has installed two numbers of ID fan at the end of chimney on the first floor towards the direction of laundry room wall. In addition, the hotel authority has installed two blower fans towards north, west side adjacent of complainant residence. During the inspection, the kitchen was in operation and smoke emission was found from the chimney on the first floor in a scattered manner, because smoke particle colloids with the walls. So, it was reported that it might be causing irritating smell and noise problem to the complainant during cooking inside the kitchen. In addition to that, the hotel authority has installed and operated two DG Set of capacity of 200 KVA and 140 KVA inside the premises without proper air pollution control measures. Both the officers recommended that the height of the chimney should be increased to avoid annoying near by residents. To reduce noise in chimney as per the gazette notification of Ministry of Environment and forest dated 11.12.2010 or noise pollution (Regulation and Control) Rules 2000, advanced features like silent key i.e. chimneys with higher suction at lower noise levels should be installed.

After considering these aspects, the learned Executive Magistrate in a cryptic order has held that Pramod Kumar Rath is not an owner of the hotel and therefore, the case has been filed against a wrong party which is not at all connected with this case. It is further held that all these disputes are civil in nature and all disputes are private nuisance and not public nuisance and therefore, proceeding under Section 133 Cr.P.C. was rejected.

However, it is seen from the records that Pramod Kumar Rath happens to be the Chairman of the group of industries, which own the hotel. So, it cannot be said that Pramod Rath, 2nd party member is not at all interested in the matter. However, during pendency of the proceeding under Section 133 Cr.P.C., the 1st party member filed an application for adding Pramod Convention and Club Resort, a unit of Padma Hospitality Private Ltd., Durga Prasad Rath and Chimney Rath, Directors of the said hospital as party to this proceeding. This petition has not been considered at all by the learned Executive Magistrate. Moreover, the petitioner filed an application to depute an Advocate of the Bar or team of advocates to have a inspection of the premises and to give report thereon. Keeping in view the initial order passed by the learned Executive Magistrate, it was incumbent upon him to do justice between the parties and in that view of the matter, the petition filed on 04.09.2013 to add 2nd party member Pramod Convention and Club Resort should have been allowed. The learned Executive Magistrate should have also been allowed the application for local inspection by a team of advocate.

Hence, the revision succeeds. The order dated 03.03.2014 passed by the learned A.D.C.P.-cum-Executive Magistrate, UPD, Cuttack in Criminal Misc. Case No. 712/2013 is hereby quashed. The matter is remanded back to the court of Executive Magistrate, UPD, Cuttack for reconsideration. The learned Executive Magistrate shall allow the petition for impletion of the parties mentioned in the schedule of the petition dated 27.01.2014 and issue notice to those persons. After their appearance, the learned Executive Magistrate shall constitute a team of advocates and such other experts, as he feels necessary, who shall have inspection of the spot and a give a detail report along with photographs taken at the spot. The parties are directed to appear before the court of learned Executive Magistrate, UPD, Cuttack on 04.12.2014. Send back the LCR forthwith along with a copy of this order to the said court.

With such observation, the revision application and the misc. case are disposed of.