T.K.S.M. Kalyanasundaram vs Kalyani Ammal and Another

Ratnavel Pandian, J.—This revision petition is preferred against the orders of the First Class Magistrate (Executive), Karaikkal, in M. C.

No. 18 of 1971 on his file giving certain directions to the petitioner herein (respondent in M. C. 18 of 1971).

M, C. No. 18 of 1971 was filed by the first respondent herein u/s 133, Cr. P. C., in order to prohibit the working of the petitioner''s industry in

his rice mill situate in East Street, Neravy, a residential area, on the ground that the conduct of the said trade in the premises is injurious to the

health and the physical comfort of the residents of that locality. The trade carried on by the petitioner is processing and boiling of paddy after it is

soaked for softness in cisterns and the spreading of the boiled paddy on the open yard inside the mill premises for drying. The first respondent

alleged nuisance by the foul smell emanating from the soaking cisterns, stagnation of water drained from these cisterns and the fly ash disseminated

from the smoke belched out of the chimney while boiling of paddy with the use of husk as fuel. The Magistrate originally passed a conditional order

u/s 133 (1), Cr. P. C., to the effect that the petitioner should desist from soaking and softening paddy till he modified the cisterns so as to obviate

foul smell emanating therefrom and should also desist from using husk in the boiling of paddy till necessary modifications are made to prevent fly

ash from being emanated all-round. That conditional order was later made absolute. The petitioner filed Crl. R. C. 117 of 1972 on the file of the

High Court and this Court, by order dated 5-1-1973, set aside the said order and remanded the matter to the Magistrate for disposal afresh after

making a local inspection and after examining public health authorities and the Chief Medical Officer and after giving an opportunity to tooth the

parties to lead additional evidence. It is seen from the order of the learned Magistrate that he made a local inspection of the industrial establishment

after due notice to the parties and in the presence of the learned Counsel on 14-5-1973. He also examined one Dr. Benedict, the ex-Chief

Medical Officer, Karaikkal. His report dated 8-5-1969 is marked as Ex. C-1. The learned Magistrate also considered the medical report of Dr.

Carounanidhy the then Chief Medical Officer, who was also cross-examined by both parties with reference to his report dated 7-6-1973, which

has been marked as Ex, C-2. The learned Magistrate also examined Dr. John Thomas whose report dated 30-4-1971, had been adverted to by

the previous Magistrate and that has been marked as Ex. C-3. On a consideration of the evidence given by all the three Medical Officers, the

learned Magistrate found that there was abnoxious smell emanating from the cisterns where the paddy is soaked, that the fly ash and smoke being

belched out of chimney of the mill is deposited on the terrace of the first respondent herein, that the water from the cisterns of the soaked paddy is

being let out by the open channels and allowed within the compound of the mill. According to the doctors, there is inconvenience caused by the mill

in its vicinity and there is nuisance as a result of the soaking smell of the soaked paddy in the cisterns and as a result of the fly ash being carried by

the blowing wind to the roofs around the mill and in particular to the terrace of the first respondent herein. The Magistrate also satisfied himself

about the facts on his personal inspection of the mill. According to two doctors, the particles of the fly ash and the foul smell emanating from the

soaking tube cause a nuisance and are certainly a source of inconvenience to human beings. Two of the doctors opined that the ashes and dust

might cause injury to public health and they proposed some remedial measures.

On a consideration of all the above circumstances and on his own personal satisfaction, the learned Magistrate ordered that the water in the

soaking cisterns of the petitioner''s mill be emptied and renewed every 24 hours, that the water let out of the cisterns be carried away by pipes to

the nearby Thirumalaiarasanar river carrying back-waters and that any other alternative type of fuel be used for the oven instead of husk. The

petitioner was directed to comply with the above orders within a period of 30 days, failing which the court would prohibit the working of the mill,

as, in its opinion, it had resulted in injury to health and physical comfort of the residents of the locality. It is as against these directions, the petitioner

has filed the present revision petition.

Learned Counsel appearing for the petitioner has strenuously urged that Section 133, Crl. P. C. is not intended to be employed to avoid the

necessity of filing a civil suit in regard to the alleged nuisance which, has been in existence for a long period. Section 133, Crl. P. C. provides a

speedy and summary remedy only in cases of urgency where danger to public interest or public health is involved. In all other cases, the party

should be referred only to the remedy under the ordinary law. It is seen from the order of the learned Magistrate that the husband of Kalyani

Ammal, the first respondent herein, had already filed a petition in the court of the Executive First Class Magistrate, Karaikkal, against the petitioner

herein, which was finally dismissed as there was no justification for taking action under this section. Thus, it can be seen that this alleged nuisance

would have been in existence for a long period. The circumstances and the evidence in this case do not prove that an urgency exists warranting the

taking of action under this section. No action can be taken under this section where the obstruction or nuisance has been in existence for ,a long

period and the only remedy open to the aggrieved party is to move the civil court. For this proposition, learned Counsel for the petitioner relied on

Asharfi Lal Vs. The State, , wherein it has been held that the proceedings u/s 133 should be taken in cases of emergency where the public shall be

put to great inconvenience and shall suffer an irreparable injury if the encroachment or nuisance is not removed at once by adapting the summary

procedure contained in Chapter X, Cr. P. C., and therefore, ordinarily no action u/s 133 can be taken where the obstruction or nuisance has been

in existence for a long period. It is further observed that there is no legal bar to seeking remedy u/s 133 where there exists a genuine emergency to

have the encroachment or nuisance removed. Such an action can toe taken even though the encroachment or nuisance has been in existence for a

reasonably long period. But, if the obstruction has been in existence for a long period, without any change in circumstances, the removal of such

obstruction cannot be said to be urgent and the remedy must be sought in a civil court. The learned Counsel also relied on Murlidhar Bhila Patil Vs.

Onkar Vyankat Patil, where it has been held that an order under this section would be justified only if the conduct of the trade is injurious to the

health or physical comforts of the community, and that these words necessarily mean that the conduct of the trade is injurious in praesenti to the

health or physical comfort of the community. In that case also, it has been held that unless there is such imminent danger to the health or physical

comfort of the community in that locality or the conduct of the trade or occupation is in fact injurious to the health or the physical comfort of the

community in that locality an order u/s 133 cannot be passed. The learned Magistrate himself, in paragraph 5 of his order, has mentioned that Dr.

Benedict has stated in his cross-examination that he did not have any material before him to show that smoke emanating from the rice mill of the

petitioner herein would affect the health of anybody. In para. 4 he has stated that on inspecting the site, he found that the smell was not apparent a

that time. But, he would state that there were indications to show that if the soaking continues for some hours, the foul smell would be found to

emanate. While concluding his discussions, in para. 15 of his order, he has not given any finding that an emergency exists causing injury to health or

the physical comfort of the residents of the locality. As I have mentioned, Section 133, Cr. P. C. is attracted only in cases of emergency, and

imminent danger to the health or physical comfort of the community. The concluding portion of the Magistrate''s order does not show that any such

emergency exists.

For the above reasons, I find that the Magistrate is not justified in giving the directions as enumerated in his order, by resorting to summary

procedure u/s 133, Cr. P. C.

Accordingly, the order of the Magistrate is set aside and the revision petition is allowed.