P L D 1958 Dacca 425 (PLP)

"On the main question as to whether the order was passed by a Court or by the Chief Presidency Magistrate as a persona designata, reliance is sought to be placed by the petitioner on the corresponding provisions in England e.g., Halsbury's Laws of England Vol. XXII, Articles 1044 and 1047. Even there it is to be observed that if the claimant is aggrieved by a refusal on the part of the police authorities, the appeal lies to the Home Secretary and not to the Criminal Courts, without prejudice, it may be to his right of action by way of a civil suit. With this last matter, we are not now concerned. Confining ourselves to the question above, the position, in our opinion is analogous to that of a Presidency Magistrate under the Madras` City Municipal Act Vijiaraghavala Pillai v. Theagaroya Chetti (38 Mad. 581) or of District Judges in the case of Municipal elections [Balaji Sakharam v. Merwanji Nowroji (21 Bom. 279) and Chunilal Virchand v. Ahmedabad Municipality] (36 Bom. 47) or the Chief Judge of the Court of Small Causes under section 33 of the City of Bombay Municipal Act [Bhaishankar v. The Municipal Corporation. of Bombay] (31 Bom. 604) and [Navalkar v. Sarojini Naidu] (25 Bom. L R 463) and the recent decision regarding Municipal assess ment in Ahmed Suleman v. Municipal Commissioner, Bombay (54 Bom. 224). The City of Bombay Police Act (IV of 1902) does not generally nor does section 45 in particular deal with Criminal Courts or their powers. The conclusion, therefore, is that the special power under section 45 on the Chief Presidency Magistrate is not as a Criminal Court but as a persona' designata. If so, no application by way of revision lies to this Court, not even to an order made refusing to take the petition back on the file for decision of the claim on the merits." In my opinion, this case has no application to the facts of the present case. There the Chief Presidency Magistrate was acting as a persona designata under the Police Act, but here the learned Magistrate was acting as a Criminal Court, and it has got all the attributes of a Court, as will be evident from a reading of section 453 of the. Code, of Criminal Procedure. The learned Advocate for the opposite party has referred to section 5 of the Code of Criminal Procedure and also to the definition of offence as contained in section 4 (o) of the said Code. Section 5 (2) of the said Code lays down ; "(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offences." Now offence, as defined in section 4 (o) of the Code, "means any act or omission made punishable by any law for the time being in force ; it also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871 :" But section 6 of the Code of Criminal Procedure which defines classes of Criminal Courts make it clear that the Magistrate of the 1st Class is a Criminal Court. Here the particular Magistrate who was trying the case was a Magistrate of the 1st Class. Exactly this argument was put forward by the Advocate‑General in the case of Ram Gopal Goenka v. Corporation of Calcutta (I L R 52 Cal. 962). Mr. Langford James in reply submitted that "the Municipal Magistrate is a Presidency Magistrate and an inferior Criminal Court within sections 435 and 439" and he referred to section 531 of the Calcutta Municipal Act. Sanderson, C. J., and Panton, J., negatived the contention of the Advocate‑General and gave effect to the argument of Mr. Langford James and observed at page 969 as follows " As a matter of fact, we were informed that the Municipal Magistrate, who acted in this case, was a Presidency Magistrate, and I have no doubt that he would be a Criminal Court within the meaning of section 6, which provides as follows : `Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in British India : (I) Courts of Session, (II) Presidency Magistrate, etc." 8., In the case of Krishen Doyal Calan v. The Corporation of Calcutta (31 C W N 506), Suhrawardy and Lammiade, JJ., held that " The Calcutta Municipal Act invests Municipal Magistrates with power to deal with certain proceedings under the Act which are not criminal proceedings. One of such powers is to order demolition of unauthorised structures." There also a motion was taken before the High Court but it was never urged that the Court had no jurisdiction to entertain this revision application under section 435 of the Code of Criminal Procedure. Section 453 of the Bengal Municipal Act provides the procedure in case the owner fails to comply with the notice. The proceeding is started on a complaint before a Magistrate thereupon issues summons requiring the person on whom the notice was served, to appear before him. The Magistrate may, if he thinks fit, adjourn the hearing or further hearing of the case and may take evidence and if he is satisfied that the alleged A nuisance exists, of that, although removed, it is likely to recur on the same premises, he shall make necessary orders and may make orders as to the necessary cost incurred by the Commis sioners for executing the order under clause (b) of subsection (2) of this section. It is, therefore, abundantly clear that the Magistrate functions with all the attributes. of a Court. In Fact, in this particular case, the petitioner was examined . under section 342 of the Code of Criminal Procedure and the witnesses were also examined on oath. There was also a motion before the Sessions Judge, but nowhere it was contended that the Magistrate was acting as a persona designata. So, I am of opinion that there is no substance in the contention of the learned Advocate for the opposite party that this Court has no jurisdiction to entertain this revisional application. The preliminary objection, therefore, fails.

9. Now Mr. Hamidul Huq Choudhury for the petitioner has raised four points before this Court. He has firstly contended that the act complained of does not come within the meaning of the term `nuisance' as defined in section 449 of the Bengal Municipal Act. Secondly, the Magistrate who tried the case had no jurisdiction to entertain the case and to decide the same. Thirdly the Magistrate acted without jurisdiction in refusing to examine the petitioner in support of his case on a wrong view of law; and lastly, the facts placed before the Court do not constitute the act complained of as an actionable nuisance. He has referred to some cases, in support of his contentions, which will be discussed later on.

10. Mr. Naziruddin Ahmed for the opposite party has, however, contended that the Magistrate, although he had no initial jurisdiction to take up the case on the 22nd of February 1956, was vested with power to try such cases by an order dated 10‑4‑56, and he had, therefore, jurisdiction to try the case and the order passed in this case is not without jurisdiction. He has again contended that although there is nothing to show that any due inquiry 'was held by the Commissioners or the Chairman which is necessary for the Magistrate to assume jurisdiction in the case, it may be presumed when the Magistrate issued, summons against the petitioner that the necessary formalities were complied with. He has again argued that there is nothing on record to show that the petitioner was not allowed to be examined as a witness in his‑ case and that the evidence before the Court clearly show that the act complained of is a nuisance within the meaning, of the provisions of , the Bengal Municipal Act.

11. As regards the question of jurisdiction, there is some initial difficulty on ft part of the opposite party. Under section 3 (54) of the Bengal Municipal Act, "Magistrate" includes the District Magistrate, the Magistrate in charge of a division of the district in which division a Muncipality is constituted and every Magistrate of the first class subordinate to the District Magistrate to whom the District Magistrate may have made over any duties under this Act". It is admitted in this case that it is the Additional Magistrate who has made over the duties under this‑ Act to Mr. A. I. Choudhury to try the case. Now question is, whether this was enough. In this connection, reliance has been placed on behalf of the opposite party to section 10 (2) of the Code of Criminal Procedure. Now that section lays down thus " The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force, as the State Government may direct." There is no dispute about the fact that the Additional Magistrate, who made over the duties to the trying Magistrate, had the necessary authority by an executive order from the Government ; but the question is when the Legislature has specifically provided that it is only the District Magistrate who can make over any duty under this Act whether the Additional Magistrate can do so under the provisions of section 10 (2) of the Code of Criminal Procedure. There is the case of. Prabhulal Ramlal Kabra v. Emperor (A I R 1944 Nag. 84), where it has been held by Niogi and Bose, JJ., as follows " The word `law' in `any other law' occurring in section 10 (2) is not meant to include an executive order but only legislative enactments, and rules, regulations or orders which have the force of law and consequently the District Magistrate, who acts for the Provincial Government under the powers conferred upon him by the Provincial Government by an executive order, cannot be regarded as, acting under any `law ' as such. Therefore, a person who is appointed as Additional District Magistrate under section 10 (2) cannot exercise the powers of the District Magistrate conferred upon the latter by an executive order." At page 87 of the said report, their Lordships further observed as follows " Section 10 (2), Criminal P. C., which authorises Additional District Magistrates to exercise all the powers of a District Magistrate under `any other law', clearly would not authorise an Additional District Magistrate to exercise the District Magistrate's power under some special law which enacted that the District Magistrate alone and no other person or authority c should be empowered to do a certain Act. The matter is obvious when there is an express prohibition but the result is the same when a prohibition is implied. The law which the Defence of India Act and its rules create is a very special law, and when we find the Act saying, as it does in section 2 (2), that the rules `may provide for or may empower any authority to make orders' for all or any of the matters specified, it means that the authorities not empowered to act under the rules have no power to enforce the special provision of the Act. Though the prohibition is not express, it is implied." I respectfully agree with the view taken by their Lordships in the above case. It is therefore, clear that Mr. A. I. Choudhury is not a Magistrate within the meaning of section 3 (54) of the Bengal Municipal Act and he had, therefore, no jurisdiction to take up this case.

12. There are also other clear illegalities in this case. It has been contended by Mr. Choudhury that the petitioner before this Court was not an accused. Section 340 (2) of the Code of Criminal Procedure again provides " Any person against whom proceedings are instituted in any such Court under section 107, or under Chapter X, Chapter XI, Chapter XII or Chapter XXXVI, or under section 552, may offer himself as a witness in such proceedings." Chapter X deals with public nuisance. Chapter XI deal with temporary orders in urgent cases of nuisance or apprehended danger. Chapter XII deals with disputes as to immovable property and Chapter XXXVI deals with maintenance of wives and children. Section 552 of the Code of Criminal Procedure deals with power to compel restoration of abducted females. The petitioner was accused of committing a particular class of nuisance as con templated by the Bengal Municipal Act. From the note in hazira filed to this case which is also signed by the 'Magistrate, it appears that the petitioner was not allowed to examine himself as witness in his case. On the other hand, the petitioner was examined under section 342 of the Code of Criminal Procedure as an accused. Not only that, one of the witnesses, namely, P. W. 4 Abdul Quddus, who is a very close neighbour and who was examined by the prosecution to prove nuisance, directly deposed against the opposite party and he was not tendered for cross‑examination and, curiously enough, his statement made in examination‑in‑chief was not even considered by the Court.

13. Mr. Choudhury has contended that Mr. A. I. Choudhury who tried the case was vested with powers with retrospective effect from the 1st of February 1956. It has been conceded by Mr. Naziruddin Ahmed for the opposite ‑party that the Magistrate could not be vested with any such retrospective power and that he had valid power only . from the 10th April 1956. On 22‑2‑56, when this case was transferred to this particular Magistrate, he took up the case and fixed 12‑4‑56, for evi dence of the lst party and directed the parties to appear. The Magistrate, therefore, took steps in the case evidently at a time when he had no jurisdiction to hear the case. It has been urged on behalf of the petitioner that the initial defect could not be cured by the subsequent vesting of power in him. He took up the case on 12‑4‑56, in pursuance of his order dated 22‑2‑

56. That order was passed without any jurisdiction. Supposing that the party did not appear on the 12th April 1956, and did not take any step, question would arise whether the Court would take any action against him. It is true, however, that this petitioner did not question the jurisdiction of the Court and he took a chance to see whether the decision would go in his favour or against him and when ultimately it went against him then only he raised the question of jurisdiction before this Court. After all, this is a matter which deserves serious consideration but, in the view I have taken regarding the other points raised in his case, it is not necessary for me to decide this question here.

14. It is apparent from the order of the Magistrate that she . took action against the petitioner under section 453 (2) (a) of the Bengal Municipal Act. The learned Advocate for the opposite party has relied on sections 453 and 449 (2) (b) of the said Act. Admittedly, section 449 (2) (a) , has no application here. Section 449 (2) (b) consists of two parts : Firstly, the Provincial Government may by a notification declare any act, omission, condition or thing to be a nuisance and, secondly, the act which, is found ,by the Commissioners of a Municipality after due inquiry on the complaint of two or more persons residing in the neighbour hood to be a cause of annoyance to the neighbours or to the inmates of the premises affected or to the public or to be dangerous or injurious to health, shall be deemed to be a nuisance to be dealt with under the provisions of this Chapter.

15. In this case, it will appear from the evidence of P. W. 2, a Health Officer of the Municipality, that he made some inquiries, but there is nothing on record to show that there was any inquiry either by the Chairman or by the Commissioners. There is absolutely no justification to presume, as contended by the learned Advocate for the opposite party, that the preliminaries were fulfilled in this case, and without due inquiry by the Commissioners it would not be a nuisance within the meaning of section 449 (2) (b) of the Municipal Act. In fact, the question whether the act complained of is a nuisance, particularly in this industrial area; is a matter which deserves serious consideration and Mr. Choudhury has referred, in this connection, to a decision of the House of Lords in this case, of Polsue & Alferi, Limited v. Rushmer (1907 Appeal Cases 121). In that case their Lordships observed at page 123 as follows " The law of nuisance undoubtedly is elastic, as was stated by Lord Halsbury in the case of Colls v. Home and Colonial Stores (1904 A C 179 (185)). He said : `What may be called the uncertainty of the test may also be described as its elasticity. A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise, as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action." Under section 452 of the Municipal Act, notice to remove nuisance can only be given by the Commissioners if they are satisfied as to the existence of a nuisance ; and, in this connection, Mr. Choudhury has referred to the case of K. T. Hing v. I. N. Silas (I L R 57 Cal. 849) to support his contention that the annoyance of a few residents of a single house is not sufficient to constitute a public nuisance and has referred to the principle enunciated in the case reported in I L R 57 Cal. 849, where it has been laid down as follows " The annoyance of a few residents of a single house is not sufficient to constitute a public nuisance as contemplated by section 290 of the Indian Penal Code. It is not sufficient proof under that section to say that the complainant and a few of E his tenants represent the people in general who occupy property in the vicinity., there being no other people dwelling within unpleasant range." Now under section 290 of the Indian Penal Code also, the necessary ingredients are "(1) that the accused did an act or was guilty of an illegal omission, (2) that such an act or omission caused injury, danger or annoyance and (3) that such injury, danger, or annoyance was common to the public or the people in general who dwell or occupy property in the vicinity." Under sub‑clause (2) (b) of section 449 of the Municipal Act also the nuisance complained of must be " a cause of annoyance to the neighbours or to the inmates of the premises affected or to the public or be dangerous or injurious to health."

16. The Municipality, it seems, was influenced by Mr. A. M. Choudhury, Assistant Secretary of the Public Health and Local Self Government Department, and Enayet Karim, Mr. A. M. Choudhury is a respectable officer of the Government. There is a distinct allegation against him that it is he who has engineered this case against the petitioner and he took active interest in the matter by ringing up the Health Officer of the Municipality, but, unfortunately, he kept himself out of dock and, instead, his nephew and his servant were only examined. One of the witnesses examined on his behalf did not support him. The petitioner before this Court, on the other hand, examined several of his immediate neighbours to support his case. There are other presses and factories in the locality against whom no action has been taken. It is inexplicable how this petitioner was made the first target. The plan mentioning the press was sanctioned by the municipality and A. D. M's approval was also taken. It appears that the learned Magistrate has not taken into considera tion all ‑the facts and circumstances in coming to his findings and conclusion. Mr. Choudhury, in my opinion, was fully justified to contend that the act complained of does not amount to a nuisance within the meaning of the Municipal Act. In fact, if the noise creates vibrating sound, an expert should have been examined in this case and, if not, the Court should have considered whether the noise in question, considering all the facts and circumstances, would amount to a nuisance as defined in section 449 (2) (b) of the Bengal Municipal Act.

17. Having regard to the facts and circumstance of this case, I am of opinion that the order of the Magistrate is bad and the Rule is accordingly made absolute and the order com plained of is set aside. Z.A.S. Rule made absolute.