Kerala High Court
Madhavi vs Thilakan And Ors. on 5 October, 1988
Equivalent citations: 1989CRILJ499
ORDER Chettur Sankaran Nair, J.
1. Petitioner herein, moved the Sub Divisional Magistrate, Fort Cochin for initiating proceedings under Section 133 of the Code, for removal of nuisance. Respondents 1 & 2 are said to be running a workshop adjacent to petitioner's house, in a manner injurious to health and physical comfort of the community.
2. It is alleged that, repairs of autorikshaws, welding, painting and like operations are carried on from dawn to dusk, and late into night, causing nuisance. According to petitioner, this causes not only air pollution, but also noise pollution. It is alleged that, fumes emanating from the workshop are positive health hazards.
3. Learned Public Prosecutor invited my attention to a report made by the Sub-Inspector dated 15-2-1985 to the effect that respondents 1 & 2 have committed the acts of complained of. But he says that, they should not be stopped from doing these because, that would deprive them of their livelihood.
4. Without going into the merits, the Magistrate dropped proceedings, in the view that a civil suit, O.S. 518 of 1985 was pending consideration before the Munsiff, Cochin. Council for petitioner submits, that the civil suit relates to a different issue. If that is so. proceedings should not have been dropped. If grounds exist to invoke Section 133 to abate nuisance, the Magistrate should take recourse to that section, for Sub-section (1)(b) of Section 133. comprehends facets of life, that are indeed very valuable.
5. Running a workshop in certain circumstances can cause air pollution and noise pollution running into several decibels. Discharge of carbon monoxide fumes, a carcinogen, can induce dreaded diseases, fatal to life. The recommendation in the report of the Sub Inspector reflects not only a sense of levity - if not irresponsibility but also total unawareness of the need to preserve community health and hygiene. To say that a workshop or factory should not be closed down, as it provides livelihood to some persons, unmindful of the consequences to others, would be to say the untenable. Constitutionally recognised values, cannot be ignored. Article 47 of the Constitution enjoins that:
the State shall regard the raising of the level of nutrition and the standard of living of its people, and the improvement of public health as among its primary duties....
Under Article 51-A it is one of the fundamental duties:
(g) to protect and improve the natural environment....
The magnificent visions of our rich constitutional philosophy do not appear to have been realised, in some quarters.
6. Article 21 of the Constitution guaranteeing 'protection of life and liberty' has been enriched in colour and content, revealing new horizons, by the Supreme Court. The Declaration of American Independence said:
We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life liberty and pursuit of happiness....
Pursuit of happiness was not articled into Part III of the Constitution, chapter and verse. But. the gloss that life has writ on Constitutional Clauses, and the meanings that the apex Court has found in the Constitution, have made Article 21, a valuable charter. Francis Coralie AIR 1981 SC 746 : 1981 Cri LJ 306, Olga Tellis , etc. are but few of the landmark decisions in this direction. Right to life, is far more than the right to animal existence.
The importance of public health has been highlighted by the Supreme Court. In Vincent Panikulangara v. Union of India , Ranganath Misra, J. observed:
In a welfare State, it is the obligation of the State to ensure the creation and sustaining of conditions congenial to good health.
The right to enjoy life as a serene experience, in quality far more than animal existence, is thus recognised. Personal autonomy, free from intrusion and appropriation is thus a Constitutional reality. The right to live in peace, to sleep in peace and the right to repose and health, are part of the right to live. We recognise every man's home to be his castle, which cannot be invaded by toxic fumes, or tormenting sounds. This principle expressed through law and culture, consistent with nature's ground rules for existence, has been recognised in Section 133(1)(b). "The conduct of any trade or occupation, or keeping of any goods or merchandise, injurious to health or physical comfort of community", could be regulated, or prohibited under the Section.
7. Various Municipal Laws and Regulations have been enacted to ensure that industrial enterprises, do not telescope into residential areas, causing health hazards. Law relating to abatement of nuisance must be strictly enforced. The Sub Divisional Magistrate will take back the petition on tile, and proceed afresh in accordance with law, after giving an opportunity to both sides to adduce further evidence, if they so wish.
8. A copy of this order will be forwarded to the Munsiff, Cochin, who will expedite the disposal of O.S. 518 of 1985.
9. Revision Petition is allowed as above.