Maksood Ali and Others vs President, Union Board

Manohar Lall, J.—This is a reference by the Judicial Commissioner of Chota Nagpur recommending that the order of Mr. S.W.A. Bilgrami, Deputy Magistrate with first class powers at Daltonganj dated 25th February 1938 passed u/s 133, Criminal P.C., against the opposite party may be modified in the manner suggested, by the learned Judge. The order passed was that the opposite party as butchers do close the business of slaughtering animals and selling meat and beef in their respective houses within a month. The learned Judicial Commissioner thought that this order was far more drastic than was warranted by the findings and therefore recommended that, as the effect of this order would be to deprive the butchers of their means of livelihood, they should not be deprived of those means without being given a chance to improve their methods. They have been admittedly carrying on the business up to the date of the order. The learned Judge recommended that the order should be altered in this wise that an order should be passed in these terms that the butchers may be ordered "to regulate their business in such a way as to eliminate the defects noticed."

We have heard the learned advocate on behalf of the opposite party and Mr. Awadesh Nandan Sahay on behalf of the Crown. The proceedings were started as a result of an application before the Subdivisional Magistrate of Daltongunj filed by the tahsildar of the Union Board of Garhwa dated 6th October 1937. The allegations in that petition were in brief that

owing to the slaughter house being near the public institutions and the way in which the slaughter house is kept and the meat and beef are kept for sale, the butchers were creating a great nuisance to the public and the members of the public living in that locality and to the general passersby.

It was also alleged that the bones and hides that are kept in the houses of the opposite party give out bad smell causing a complete nuisance to the public in the neighbourhood. For several years past the Health Officer of the school and the other authorities were alleged therein to have pointed out that the existence of this slaughtering house and the carrying on of the trade so close to the English High School had the result that the hostel and the school were rendered insanitary and undesirable. The Inspector of Chota Nagpur Division, it is stated, had also strongly condemned the existence of this slaughter house and had directed the authorities of the school to take proper steps in the matter. The Union Board, it was then stated in the application, made every attempt to stop the nuisance but owing to the alleged obstinacy of the opposite party the nuisance still continued and now that the nuisance had become very great and was injurious to the health and physical comfort of the community, he, the petitioner, prayed that proper proceedings should be taken to stop and prohibit the nuisance. Seven witnesses were examined on behalf of the complainant.

We have gone through the evidence of these witnesses at length as we have been invited to do so by the learned advocate for the opposite party who insisted that there was no evidence whatsoever to justify the finding of the Magistrate that these slaughter houses (private) were a nuisance. Several of the important witnesses are public officers whose evidence is entitled to a great weight and the learned Magistrate who had the witnesses before him had no hesitation whatsoever in relying completely upon the statements elicited from them. Witness 1 who is a Tahsildar of the Union Board states that

the houses of the accused are east of the road. On the west side of the road there is the Garhwa Higb School which his a hostel. The thana and the hostel are close to the school. The slaughter of cattle in those courtyards is a nuisance; to passers-by as the sight and the smell are both offensive. The hides are kept in those court-yards. In rainy, season there is very bad smell.

Witness 2 (Mr. J.N. Gupta) speaks of the previous reports which were submitted) by him oh this matter from time to time-and he speaks in his evidence in these words:

I inspected the School on 25th April 1936.... When 1 was giving lantern lecture in the school compound on 25th April 1936 at about, 6.80p.m., I felt stinking smell which was rather nauseating which might be due to tanning of raw hides.... I asked the Headmaster to take necessary steps for the removal of the slaughter house from the vicinity of the school.

Witness 4 for the prosecution is a Medical Officer of the school. He states that the Headmaster drew his attention to the existence of the slaughter house near the school which was 50 yards off and in answer to the question put by the Court he stated that

bad smell comes from the side of the slaughterhouse when wind blows from that side. During inspection I smelt the bad smell coming from that side.

Witness 4 for the prosecution is an officer in charge of the police station at Garhwa. He says that "bad smell comes-from the, slaughter house" and he gives his reason for not taking any steps in the matter because he says that he understood, that the school authorities were taking necessary steps for the removal of the slaughter house. Witness 5 is a shopkeeper of the village who states that the slaughter houses in question are visible from the road and are kept in bad condition and bad smell comes therefrom; the houses of the accused are kacha houses. The next witness is also a man of that place and is a cultivator and, sweetmeat seller. He says that the houses of the opposite party give very bad smell; the bad smell is felt when strong wind blows. The last witness is the Head master himself who says in his evidence:

Frequently bad smell comes from the houses of the accused persons to the school classes, and the hostel and Headmasters quarters. Within the school compound we often find pieces of meat and bones dropped by birds or dogs. Sometimes hen the smell becomes unbearable we have to dismiss the classes. We were also taken through the documentary evidence in the case. This completely corroborates and supports the oral evidence which has just been summarized. The evidence which I have briefly summarized above was accepted by the learned Magistrate who heard these witnesses and saw their, demeanour in the witness-box. I cannot see any error in law which he has committed in accepting this overwhelming evidence and I hold that the conclusion at which he has arrived was absolutely justified by the evidence. I am not referring to the evidence of the opposite party because: the learned Magistrate has given good reasons why he cannot place any reliance upon that evidence and as a Court of fact his decision is final.

The question then arises whether the recommendation made by the learned Judicial Commissioner should be accepted. Now it is to be remembered that the learned Magistrate had complete jurisdiction to adopt either of the courses provided in Section 133. Sub-clause (1) itself contemplates that a Magistrate may order that the trade or occupation be prohibited or regulated. In this case the only dispute between the parties was whether the trade which was being carried out by the opposite party should be ordered to be stopped. There was no dispute that it should be regulated in any manner. The opposite party were insisting that they were carrying on their trade in a proper manner and that it was in these circumstances not a nuisance; and when that matter has been decided against them, it is not within the province of a Court of revision to impose some conditions which the evidence in the present case does not justify and to which the minds of the parties were never directed. The learned Magistrate in his explanation has pointed out why he did not think it proper to pass a conditional order for regulating the trade of the butchers. He says that he was of opinion that the Court was not able to frame a set of rules, or a set of conditions for regulating the slaughtering of animals and selling of meat by the opposite party.

He also thought that the imposing of conditions would lead to a never ending trouble between the butchers and the Garhwa Union because there will be complaints by the Union that the conditions were violated in this way and that way and the best course was to prohibit the trade (as he was fully empowered to do under the law) and to enable the butchers to fix their trade at some other convenient place distant from the school premises. Ordinarily a Magistrate is not allowed to supplement his judgment by means of an explanation; but in this case as the question was raised, for the first time before the Judicial Commissioner and later on before this Court on behalf of the opposite party (there being nothing in the evidence whatsoever which suggested that the trade could be or should be allowed to be regulated in any particular manner), we have allowed ourselves to be impressed by the explanation which the learned Magistrate has given. In these circumstances we think that the learned Magistrate had exercised his discretion in a proper and legal manner in passing the order which he has done.

We have derived assistance from the two leading cases on this point in Municipal Commissioners of the Suburbs of Calcutta v. Mahomed Ali (1871) 7 B. L.R. 499 and Municipal Commissioners for the Suburbs of Calcutta v. Amanat Ali (1871) 7 B. L.R. 516. Both these cases related to similar facts. At p. 535 the learned Judges observed:

The evidence of the witnesses for the prosecution goes to show that this slaughter house, constructed as it is, could not be carried on without creating nuisance. Looking at the whole evidence, we think, it cannot be said that the cause shown ought to have satisfied the Magistrate that his order ought not to have been made. We cannot say that in point of law he was not fairly justified in coming to the conclusion, upon the evidence before him, that the trade of slaughtering cattle, as carried on by the defendants at the Kurya slaughter house, was injurious to the health of the community; nor can we say that his order that such trade should be suppressed; was not a legal and proper order.

The remarks apply a fortiori to the facts of the present case. At page 507 of the earlier case the following instructive passage occurs:

As observed by Lord Tenterden, in a case somewhat similar to the present, Rex v. Cross (1826) 2 C & P 483 the license would not entitle the defendant to continue the business one hour after it became a, public nuisance to the neighbourhood. Although the Commissioners had taken no steps under Act. 7 of 1865 against the defendants, the defendants-had ample warning to set their house in order by the prosecution instituted against them by many hundreds of their neighbours in the course of last year.

In the present case also the opposite party, though repeatedly informed from at least 1930, have not set their houses in order. As to the argument that the butchers had prescriptive right to continue the trade which existed in some form or other in this locality from 1844, the learned Judges observed as follows:

As to the claim of a prescriptive right alluded to by the learned Judge, we may observe that no prescriptive right to maintain the slaughter house in its present condition was set up before the joint Magistrate, nor could any such right have been effectually asserted; first, because it appears on the evidence that the slaughter house has existed in its present position only for about six, or at most 10 years; (as also in the case before us): secondly, there is no evidence that, even during the whole of that time, the place was used in the same manner and the stenches emitted to the same extent as at present; thirdly, in our opinion it is clear that no length of enjoyment can legalize a public nuisance involving actual danger to the health of the community.

It is unfortunate that this order may to some extent interfere with the carrying on of the trade by the butchers who do not seem to be persons in substantial positions in life, but when people choose to live in a well ordered society, their personal liberties are often curtailed in the interest of the public at large and indeed the health of the public must be considered to be of paramount importance. Following the reasoning in the two cases referred to above I consider that the facts as found by the learned Magistrate justified him in making the order which is recommended for revision and I have no hesitation in discharging the revision and confirming the order passed by Mr. S.W.A. Bilgrami.

Chatterji J.

I agree.