P L D 1974 Lahore 71 (PLP)

3. I have heard the learned counsel for the parties and have also gone through the impugned judgment and certain other documents referred to by the learned counsel. The counsel for the Petitioner contended first that section 142, Cr. P. C. is not an independent section but is controlled by section 133, Cr. P. C. and comes into play only when the danger or the injury is so imminent or serious that the result of the proceedings under section 133, Cr. P. C. cannot be awaited. I have no dispute with this contention. In fact section 142, Cr. P. ( , says so itself. It empowers the Court to grant an injunction or pass a 'stay order' during the pendency of inquiry under section 133, Cr. P. C. arid provides that if the Magistrate is of the view that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue an injunction under section 133, Cr. P. C. requiring the person concerned to take measures to prevent the danger or injury, pending the determination of the matter. Section 142, Cr. P. C. admittedly relates to proceedings under section 133, Cr. P. C., which is applicable to all cases of nuisance men tioned in that section. It is therefore, obvious that the word 'public' used in section 142, Cr. P. C. includes the word 'community' mentioned in para. 'J of subsection (1) of section 133, Cr. P. C. As such, the learned Magistrate was empowered to pass an order restraining the petitioner from working the machinery in question if he was satisfied that there was an imminent danger or injury to the health or physical comfort of the "community". He visitee, the spot himself and noticed that the vibration created by the machinery was abnormal and caused vibration which was felt in the adjoining houses. He also saw some cracks on the inner walls of the mosque and some of the houses. He also noticed that one of the minarettes of the mosque bad also cracked and the house of one Qamar Din, which was contiguous to the furnace in the petitioner's factory, got heated up. He also found that the noise and vibration created by the working of the machinery was of constant nature, and, through his personal observation, he was satisfied that the working of the heavy electric machinery in the factory and the furnace was a source of a physical discomfort to the entire locality. I am of the view that on having been so satisfied, he was not only empowered but was under an obligation to pass the order stopping the working of the said heavy machinery and the furnace in exercise of his powers under section

142. Cr. P. C. because the danger to health, or at least the physical discomfort caused to the community was not only imminent but was in fact, a present and continuing nuisance. The above-noted contention has therefore not force.

4. The learned counsel for the petitioner contended next that the proceedings under Chapter 10 of the Criminal Procedure Code are civil in nature, as they involve the determination of the rights of the parties and therefore the proper forum for such matters is the civil Courts. In support of this contention he referred to subsection (2) of section 139-A, Cr. P. C. and argued that Chapter 10 itself provides for a recourse to the civil Courts and ft is only in case of extreme emergency that resort should be made to the Provision of this Chapter Section 139-A (2) reads as follows:- Section 139-A(2).-If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent civil Court ; and if he finds that there is no such evidence, he shall proceed as laid down in section 137 or section 138, as the case may require ;". I am afraid I cannot agree with the contention that the civil. Courts were the proper forum for the respondent in this case. Chapter 10 of the Cr. P. C. relates to Public Nuisance which is, in fact the heading of that Chapter. Chapter 10 gives a summary jurisdiction to the local Magistrate to dial with matters which may be a source of imminent danger to life and property or of injury to health and physical comfort of the public at large, or of a particular community or locality. The learned counsel for the petitioner I himself submitted that the provisions of this Chapter are invoked where there is an imminent danger. In the present case as already discussed, the,, emergency of the situation clearly required quick action to be taken because the noise and vibration caused by the working of the petitioner's machinery, was a constant and continuing source of discomfort to the residents of their locality. Remedies available in respect of Public Nuisance in the civil Court of a protracted nature will take such a long time for completion, as would defeat the purpose of the proceedings. Moreover, the mere fact that another remedy is open to the respondents does not mean that the remedy under Chapter 10 of the Criminal Procedure Code, is closed to them. Refer Krishna Mohan Banerjee and another v. A. K. Guha (A I R 1920 Cal. 550(l)). As far as subsection (2) of section 139-A, Cr. P. C. is concerned the learned counsel for the petitioner has overlooked the fact that it has to be read alongwith the provisions of subsection (1) of that section, which relates only to obstruction or nuisance to the public in the use of any way, river, channel or place. It has no reference to nuisance which causes injury to "health" or "physical comfort" of the community.

5. The learned counsel contended next that the area in which the petitioner's factory is situated is not a residential one, inasmuch as a number of other factories are also situated in the vicinity. In support of this contention he has drawn my attention to the site-plan attached as Annexure ,X with the application showing various houses and 'Karkhanas, in the locality. This contention, too, has not much force. No doubt certain machines and 'karkhanas' are working in the area but a perusal of the site-plan clearly shows that it is primarily a residential area. Moreover, the nature of the 'karkhanas' is such that they cannot be called 'factories' in the true and proper sense of the word. One of these is termed as "karkhana of furniture", belonging to Siraj Din, another is toka for cutting fodder. Another one is a carpet manufacturing unit while another is a workshop known as 'Baby Cycle Works'. It is evident that the places where the furniture is made or carpets are being manufactured, are not factories or workshops in the proper sense of the word and no electrical operator machinery is installed therein. The 'Baby Cycle Works' also appears to be a small workshop, either manufacturing the parts of baby cycles or assembling the same. From its very size, as shown in the site-plan, it is obvious that it is not a proper factory. The "ara-machine" too, cannot be called factory.' because this usually consists of one saw-machine each. As compared to these shops and 'karkhanas' the number of residential houses in the locality which are situated near, or around, the factory of Muhammad Yousaf petitioner, is far greater. On the eastern side it is bounded by a mosque. The fact that the residents of these houses had not made any similar application against the owners of the ara-machines or the carpets manufacturers etc. merely goes to show their tolerance of ' noise to a reasonable extent. For a long time they did not object to the petitioner's factory either, till he installed heavy machinery therein, which started rocking the entire locality and created noise which, obviously, became unbearable for the residents. I feel that they were justified in persuing the remedy provided by Chapter 10 of the Criminal Procedure Code which is meant for just such nuisances.

6. The learned counsel contended next that the petitioner's factory is not a new one and has been running for the last 20 years and it is therefore, too late now for the residents of the locality to protest against the noise or vibration. In support of this contention he cited Emperor v. Tulsi R am (A I R 1938 Lah. 523) and Nanumal and another v. The Emperor (A I R 1939 Lah. 452). In these two cases encroach ments had been made on the road or paths. It may also be mentioned that in the last mentioned case, the appeal was accepted on the ground that the respondent/petitioner had denied the allegation of having caused any obstruction on the road but the Magistrate had passed an order without holding an inquiry into the said denial but while remanding the case back to the Magistrate, the learned Court made a passing observation that proceedings under Chapter 10, Cr. P. C would be valid3 only if the encroachment on the road was an old one. 6-A. As against these cases, the learned counsel for the respondent cited Muhammad Akhtar v. Haji Allah Bakhsh (1968 P Cr. L J 225), which appears to be on all fours with the present case and it appears that the above-mentioned two Lahore cases were brought to the notice of their Lordships of the Supreme Court. In this case the petitioner had been directed by the Corporation Magistrate to stop the working of his "Flour chakki-cum-cotton ginning plant" on the ground that it caused vibration and thereby resulted in physical discomfort to the neighbours and the fine cotton particles emitted from the ginning plant tend to be injurious to their health. The principal ground urged by the petitioner's counsel before their Lordships of the Supreme court, in support of the petition, was that his flour chckki and the ginning plant had been in existence for more than 20 years and the peremptory provisions of section 133, Cr. P. C. were not attracted in the case. In-support of this contention the counsel in the cited case also relied on certain other judgments. The learned Supreme Court, however, observed that some of these (judgments) were not relevant while others were distinguishable, as they dealt with the cases of obstruction on public paths. In this connection the following observation of their Lordships may usefully be reproduced here :- "In the case of wrongful occupation of immovable property or exercise of any dominion over it, the time factor is a relevant consideration in determining the application of section 133, Cr. P. C., but the same consideration does not apply to the carrying on of an obnoxious trade or occupation resulting in continuing physical discomfort and injury to the health of the neighbours.. In the same case (1968 P Cr. L J 225) the petitioner's counsel had also contended that only a few of the neighbours were affected and that therefore a case of nuisance to the 'community' as envisaged in section 133, Cr. P. C., was not made out. This contention did not find favour with their Lordships who were pleased to make the following observations, while rejecting it :- Haji Allah Bakhsh, respondent, and the other neighbours form part of the community and it was not necessary to prove physical discomfort and injury to the health of the community as a whole. On facts too we find the impugned order fully justified. The working of a flour chakki and a cotton ginning plant in a crowded locality of Lahore must have been a cause of great nuisance to the neighbours and it was eminently just to put an end to it." In a judgment delivered by Mr. Justice Salahuddin Ahmad (as his Lordship then was), in a Division Bench case of the High Court of Dacca, namely, S. H. Mahmud v. Mohammad Jahangir (P L D 1968 Dacca 823), went a little further and held that even noise made while carrying on a lawful trade, under licence, if found injurious to the physical comfort of the community, constitutes "public nuisance" and that a Magistrate has the jurisdiction to proceed under Chapter 10 of the Cr. P. C. for the abatement of the nuisance. The exact words used by his Lordship may, usefully, be reproduced here :- "In our opinion as noise made in the carrying on of a lawful trade under a licence, if injurious to the physical comfort of the community, is a public nuisance and a Magistrate has jurisdiction to proceed under section 133 for the abatement of the nuisance." A similar view was expressed in Krishna Mohan Banerjee and another v. A. K. Guha and Munnalal Brahmin v. Shridar Rao Lele (A I R 1934 Nag. 193). In the Dacca case mentioned above (P L D 1968 Dacca 823), the learned Judge also considered the meaning of the expression "community" occurring in the relevant part of Cr. P. C., and was pleased to refer with approval to the following observations in Raghunandan Prasad v. Emperor (A I R 1931 All. 433); "If the public nuisances referred in Chap. 10, Cr. P. C., are equivalent to the public nuisances defined in section 268, I. P. C. the public and again people in general who dwell or occupy property in the vicinity, or in other words the neighbours, must be regarded as to all intents and purposes the same body of people. I can find no authority for distinguishing the meaning of the word, 'community' (which according to the dictionary is a relative term) either from the public or the neighbours."

7. I am of the view that the authorities mentioned in paragraph No. 6-A, above, clinch the matter. It might well be true that the factory was started by Muhammad Yousaf petitioner 20 years ago but it can be safely assumed that it had been a comparatively smaller factory at that time' and his neighbours tolerated the noise as long as it was within reasonable limits. They protested only when he installed heavy machinery. Apart from this the mere fact that the inhabitants of the locality did not immediately approach the Court, does not debar them from approaching the Magistrate as and when they come to know that the provisions exist in the Criminal Procedure Code for obtaining quick and effective relief. The complaint in such a case is not like an F. I. R. in a criminal case, where even a delay of few days or hours is looked upon suspicion, because of a possibility of concoction or fabrication of a false story.

8. The learned counsel contended that during the period in which a stay order was suspended there has been no fresh complaint of any wall having cracked and as such there is no 'nuisance'. It is correct that in view of recent Indo-Pakistan war, I had suspended the injunction issued by the learned Magistrate with the consent of the learned counsel for the parties, so that labour should not be displaced during that extraordinary national emergency. It is probably also correct that no walls have fallen during this interval, but this does not mean that the inhabi tants of the locality and the members of the community should continue to suffer under the unrelenting and perpetual noise and vibration created by the heavy machinery run by the petitioner. As already mentioned, the learned Magistrate passed the order after visting the locality and personally satisfying himself as to the injurious effects of the noise and vibration created by the petitioner's factory. Moreover he did not order the total closing down of his factory, but only ordered that he should not operate certain heavy machinery mentioned in the impugned order.

8. I am of the view that considering all the facts and circumstances of the case, the impugned order under section 142, Cr. P. C. was justified and no valid reason has been advanced for setting it aside. As such the case is remanded to the learned Magistrate with the direction to continue tile recording of the evidence and finish the case within a shortest possible period. My order suspending the impugned injunction issued by the learned Magistrate is hereby vacated. S. A. H. Petition rejected.