1970 P Cr (PLP)

(d) Petitioners had previously been granted licences to run the factories. (e) The Magistrate failed to pass an order "regulating the trade" and, instead, proceeded to "stop the business as a whole". (f) The Chairman, Lahore Municipal Corporation, on the 17th January 1968, visited the spot and found that the area in question was not purely a residential area. (g) Begum Akhtar Islam, even if she had any grievance, should have resorted to the civil Court to seek redress.

4. At the commencement of arguments, learned counsel for Begum Akhtar Islam raised a preliminary objection and urged that the petitioners should have applied to the Sessions Judge, Lahore, in the first instance, and that their petition made directly to the High Court was opposed to law and practice. Accordingly, he contended that the petition be transferred to the Sessions Judge, Lahore, for disposal in accordance with the provisions of section 435 et seq. In this connection, the learned counsel relied on Ghulam Muhammad v. Rura (A I R 1927 Lah. 721), and Shah Zillur Rahman Mutainelli v. The State (P L D 1959 Dacca 192). Mr. Pervez Akhtar, learned counsel for the petitioners, controverted this argument and urged that while both the Sessions Judge and the High Court had jurisdiction to entertain the revision petition, the petitioners could seek immediate redress from the High Court only. The law on this point was examined in the precedent case `Shah Zillur Rahman Mutawalli v. The State' and it was held as follows :- "Normally from a decision of a Magistrate, the Sessions Judge must be moved in revision and a revision application direct to the High Court is not ordinarily entertain able." It was, however, held in Shailabala Devi v. Emperor (A I R 1933 All. 678), as follows :- "In observance of the well-established practice of the Allahabad High Court, neither an application by a third party for the purpose of informing the High Court, should be entertained, unless there are special reasons why the applicant should not have gone to the District Magistrate or the Sessions Judge in the first instance; but if a Judge on very special grounds decides to intervene, he cannot be said to be acting illegally although it may be contrary to the established practice. Once the application has been admitted and the record called for, such an objection should not be entertained." Proceedings under Chapter X of the Code do not relate to the commission of an offence and the final order passed is nor "a sentence". If the Sessions Judge considers that any finding arrived at in pursuance of Chapter X of the Code is "illegal or improper", he shall report for the orders of the High Court the result of leis examination. In the case of a sentence, the Sessions Judge may direct that execution of the sentence be suspended. It is doubtful indeed if the Sessions judge could suspend the order directing that the functioning of the two factories be stopped within a period of 15 days. The suspension of such order could be directed

urgently-by the High Court only. I am satisfied that the petitioners had good justification not to file the petition before the Sessions Judge but to file it directly in the High Court. In the instant case, even if it is held that the petitioners were under an obligation to file the petition in the first instance in the Court of Session steps should have been taken, as soon as the petition was made to the High Court, to transfer the petition to the Court of Session. To transfer the petition 9 months after its institution will operate to the prejudice of the petitioners. Both sides are prepared to have the matter settled in this Court. Under the circumstances, the preliminary objections raised by the learned counsel for Begum Akhtar Islam is without force.

5. It is in evidence that water pump valves are manufactured in the factory of Muhammad Hussain and Tilla is cleaned in the factory of Muhammad Ishaq. The grievance of Begum Akhtar Islam is that the running of factories creates noise and. fumes which are injurious to her health and the health and comfort of her children. She examined Dr. Dilawar Ali Shah in support of her case. Dr. Dilawar Ali Shah stated that although Begum Akhtar Islam was under his treatment for the last 6 or 7 years, she did not make any improvement as the noise and fumes aggravated her condition. Abdur Rahim Khan (P. W. 3) resides in a portion of the building in which Begum Akhtar Islam r, resides. He also complained of the discomfort caused by these two factories. Sultan Bakhsh (P. W. 4), is Chief Sanitary Inspector. He stated that the working of these factories led to unbearable noise and fumes. Muhammad Yaqub (P. W. 5) stated that the entire Mohallah complained of injurious effects of these factories. On the other hand R. W. 1 who resides at a distance of 50 yards from the factories had no complaint in respect of these factories. Abdul Majid (R. W. 2) denied that discomforting noise arose from the factory of Muhammad Hussain or obnoxious smelling fumes emanated from the factory of Muhammad Ishaq. Siraj Din (R. W. 3) stated that there were several other factories in that locality. He had no grievance on account of the working of the factories in question. He did not go inside the factories and knew nothing about their working. Zia-ud-Din (R. W. 4) stated that there were several other factories in that area and that there was no objectionable noise or fumes resulting from the working of the factories in question. The petitioners were not examined. Had Muhammad Ishaq been examined, he could have informed the Magistrates of the chemicals he used in cleansing the Tilla. Had Muhammad Hussain and Muhammad Ishaq been examined, they could have been questioned to state if the factories could be worked in such a way that the objectionable noise and fumes could be mitigated or removed. The evidence on record may be held sufficient to indicate that the noise and the fumes are injurious to the health of, and constitute discomfort to, the persons residing in the neighbour hood of the factories. Such noise and fumes may have adverse effect on all passers by. But the evidence on records is not ,ff sufficient to establish that the noise and fumes have adverse effect in an .extensive area and, as such, constitute "public nuisance".

6. The decisive point, however, is whether the locality in which the two factories are located is "factory area" of "residential area". Ordinarily, in a factory area such noise and fumes may be met frequently, without objection. On the other hand, in a residential area serious objections may be taken if such noises and fumes constitute injury to the health or physical comfort of the community. It has been held in the case of `Polsue & Aifreri, Limited v. Rushmer' referred to in Abdul Kader v. Chairman, Dacca Municipality (P L D 1958 Dacca 425), 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 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." In the instant case the evidence on this point is discrepant. Abdal Rahim Khan (P. W. 3) conceded that in this locality there existed other factories as well: Sultan Bakhsh (Chief Sanitory Inspector) stated that the locality in question is not a factory area. Dr. Dilawar Ali Shah (P. W. 1) could not state if there were other factories in this locality. Muhammad Anwar (R. W. 2) and Muhammad Yaqub (R. W. 5) did not refer to this aspect of the case. Begum Akhtar Islam as (P. W. 6) pleaded ignorance if "Nice Engineering Works" adjoined her house, Siraj Din (R. W. 3) stated that in the locality there existed several other factories as well. Zia-ud-Din (R. W. 4) made a similar statement. Since the petitioners' licence had been cancelled, they preferred an appeal to the Chairman of Lahore Municipal Corporation. Mr. A. M. Said, Chairman, Lahore Municipal Corporation, in his order dated 31st January 1969, stated as follows :- ". . . . . . . . I have seen the area myself. There are many factories . . . . . . . . The only.point. now requiring determination is whether the area is, factory area or residential area. As far as official declaration about the area is concerned there is none and -the matter can be referred to the Lahore improvement Trust to declare it factory area or otherwise. Until then we have to depend upon our own visual experience and come to a conclusion. That experience shows that it is more of a factory area than residential area." It is, however, remarkable that the data collected by the Chairman was not placed on record and it cannot be said whether the said data was sufficient to warrant the conclusion that he reached. The Chairman can be examined in Court and subjected to cross- examination. If, eventually it is held that the locality in question is a factory area, it shall not be proper or legal to maintain the impugned order. On the other hand, if it is held that the locality is a residential area, then it shall have to be determined whether the running of the two factories constitutes "a public nuisance". 7. (a) In this case the petitioners were not examined. It is to be determined whether this is an irregularity and, if so, it is fatal. (b) Reference may be made to subsection (2) of section 340 which runs as below :- "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." The inference is that in proceedings under Chapter X, the, person complained of may or may not offer himself as a witness. In other words, if he so chooses he may not be examined at all. (c) Chapter X of the Code does not relate to the trial of offences. In other words, Muhammad Hussain and Muhammad Ishaq were not `accused persons'. The petitioners were not c examined. This was not violative of the provisions of sec tion 342 of the Code. It cannot, therefore, be said that the proceedings are vitiated for non-examination of the accused persons. (d) In this case the petitioners were represented by a counsel. On the 2nd December 1968, they closed their evidence but did not offer to examine themselves as witnesses. It is true that subsequently- they wanted that the case be reopened and they be examined as witnesses. This application was made under section 540, Cr. P. C. The matter rested with the Court and the Court declined to give them any further opportunity. (e) It follows that the proceedings are not vitiated for the reason only that the petitioners were not examined as witnesses.

8. It is urged that the Magistrate failed to pass an order regulating the trade in question. The petitioners, in the course of the proceedings before the Magistrate, never made out a case that instead of stopping the business, a direction for regulating the same be made. This matter was not canvassed before the Court at all. Even before me, the learned counsel. for the petitioners has not made any definite suggestion for the regulation of the trade. I do not think any "silencer" can be applied to absorb noise created in the factory run by Muhammad Hussain. The evidence does not show which chemicals are being used by Muhammad Ishaq. It is not, therefore, possible to postulate if some scheme can successfully be devised to regulate the business in order to mitigate the nuisance complained of.

9. What has been stated above is sufficient to indicate that the impugned order has been passed on insufficient material. For instance, it was not determined (a) whether the locality was a factory area; (b) whether the noise and the fumes injuriously affected a large section of the public or merely the neighbours; (c) whether any arrangements could be made to regulate the functioning of the factories in such manner as could have mitigated the nuisanace. The learned Magistrate appears to have been influenced by the fact that the Lahore Municipal Corporation did not approve of the functioning of the factories and had cancelled the licences. It has been noticed above that the licences were revived after the impugned order was made. Assuming that the area is a factory area and the Corporation approves of the functioning of the factories the case shall require reconsideration. This reconsideration is all the more necessary in order to determine if any regulatory arrangements can be made. Further, it is desirable that the petitioners be examined to assist the Magistrate in determining these issues.

10. Accordingly, the impugned order is hereby set aside and the case is remanded to the learned Magistrate. The parties shall be permitted to adduce additional evidence in support o their respective cases. In view of the grievance, the learned Magistrate shall try to dispose of the case expeditiously. Petition accepted. Case remanded.