Punjab-Haryana High Court
Ram Pal vs State Of Punjab And Ors. on 13 November, 2003
Equivalent citations: 2004CRILJ2262
ORDER M.M. Kumar, J.
1. This order shall dispose of two petitions, namely, Criminal Misc. No. 52517-M of 2003 and Criminal Misc. No. 52520-M of 2003 as both the petitions are directed against common order dated 23-5-2003 (Annexure P-6) passed by the Additional Sessions Judge, Kapurthala. The learned Additional Sessions Judge, in his order, has upheld orders dated 20-9-2002 and 11-10-2002 of the District Magistrate, Kapurthala.
2. The District Magistrate has passed a conditional order under Section 133(i), (iii) of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') directing the petitioners to stop the operation of Hadda Rori and remove all the carcases/animal skins/bones and any other material causing foul smell within a period of ten days or appear personally or through pleader to show cause on 27-9-2002 at 10.00 a.m. why the conditional order not made absolute. The petitioners appeared before the District Magistrate on 27-9-2002 but failed to file reply by 11-10-2002. They also did not appear before the District Magistrate on 11-10-2002 resulting into the passing of final order, Annexure-P-4 under Section 138 of the Code.
3. Brief facts of the case necessary for disposal of the instant petitions are that the District Magistrate, Kapurthala, when visited Phagwara on 13-10-2002, was apprised of strong foul smell emanating from the operation of illegal Hadda Rori situated at Village Saprorh, Opposite Punjab Bone Mills, Phagwara. The Hadda Rort being situated close to the National Highway emitting foul smell was alleged to be the cause of nuisance for all the travellers on the G.T. Road/ National Highway. On the receipt of complaint, the District Magistrate, Kapurthala directed the Tehsildar-cum-Executive Magistrate, Phagwara to personally visit the site and submit his report with regard to alleged nuisance. The Tehsildar-cum-Executive Magistrate submitted his report on 16-9-2002 which was forwarded by the Sub-Divisional Officer, Phagwara to the District Magistrate on 17-9-2002. According to the report submitted by the Tehsildar-cum-Executive Magistrate, he visited the site along with Kanungo and Patwari of the area on 16-9-2002. He also associated the villagers with him. The report clearly indicated that animals' skins and bones were lying in the open which were resulting into foul smell and pollution. The cumulative effect was nuisance which made it difficult for the people of the area to live. It also caused discomfort and nuisance to all the travellers on the G.T. Road/National Highway. There was a news report published in Punjabi Ajit on 19-9-2002 expressing the public grievance about Hadda Rori and Bone Mill which have been spreading pollution, strong foul smell and causing damage to their grains, fodder and fields. The Chairman, Punjab Pollution Control Board himself personally visited the spot on 6-9-2002 and found the nuisance caused by the operation of illegal Hadda Roris. He wrote a letter to this effect on 10-9-2002 to the District Magistrate requesting for taking immediate action to stop the nuisance.
4. On the basis of the aforementioned facts and circumstances, the District Magistrate passed a conditional order on 20-9-2002 calling upon the petitioners to stop the operation of Hadda Rori and remove all the carcases, animal skins, bones and any other material causing foul smell within a period of ten days or appear personally or through an authorised pleader to show cause on 27-9-2002 why the conditional order be not made absolute. After appearing on 27-9-2002, the petitioners failed to appear on 11-10-2002 nor any reply was filed. As a consequence, on 11-10-2002, the District Magistrate made the order dated 20-9-2002 as final and a direction was issued to the petitioners to stop the operation of Hadda Rori by 25-10-2002.
5. Feeling aggrieved, the petitioners approached the Additional Sessions Judge, Kapurthala by way of filing civil revision under Section 397 of the Code which has also been dismissed on the ground that three reports have gone against the petitioners, namely, the letter of the Chairman, Punjab Pollution Control Board dated 10-9-2002, the report of the Tehsildar-cum-Executive Magistrate dated 16-9-2002 and the report in the daily Ajit dated 19-9-2002. ...................................................................................................... The operative part of the order passed by the learned Additional Sessions Judge reads as under :--
"Admittedly the Hadda Rori is being run by the petitioner in his own private premises situated in front of Punjab Bone Mills across the G.D. road. Nothing on the file that any Panchayat gave contract to the petitioner to carry on the business of Hadda Rori i.e. to dispose of the dead animals. No licence was obtained from the Punjab Pollution Control Board. Chairman of Punjab Pollution Control Board personally visited the spot on 6-9-2002 and found that with the operation of illegal Hadda Roris, there is pollution problem. News was also published in the newspaper 'Ajit Jalandhar' on 19-9-2002. People of the area complained that Hadda Roris and Bone Mills spread pollution and strong foul smell causing public nuisance. As per Section 133(1), Cr. P.C. District Magistrate or S.D.M. or Executive Magistrate specially empowered by the State Govt. on receiving report of a police officer or other information and on taking such evidence, if any, if he thinks fit, pass conditional order. In the case in hand. District Magistrate, Kapurthala when had gone to Phagwara then received complaint from the villagers. There was a news in the newspaper. Chairman of the Pollution Control Board also requested for the stoppage of business. When business of Hadda Rori is injurious to health or comfort of the community, then District Magistrate was right to pass conditional order: As per complaint of the public and keeping in view the report of the Tehsildar dated 16-9-2002, report of the newspaper dated 19-9-2002 and letter of the Chairman, Punjab Pollution Control Board dated 10-9-2002 conditional order Under Section 133, Cr. P.C. was passed on 20-9-2002. Petitioners were directed to appear on 27-9-2002 to show cause why the order be not made absolute.
On 27-9-2002, petitioner appeared and requested for date. Date was given. But on the next date i.e. 11-10-2002 petitioner failed to appear before the District Magistrate to explain why the order be not made absolute. When the petitioner had failed to appear before the District Magistrate despite notice of the order Under Section 133, Cr. PC. dated 20-9-2002, then District Magistrate had no alternative except to make the order absolute. After the order Under Section 133, Cr. P.C. opposite party is to appear and show cause against the order, then Magistrate was bound to take evidence in the manner as in a summons case. But once the aggrieved person fails to appear before the District Magistrate, then how the District Magistrate was expected to record evidence Under Section 138, Cr. P.C. Evidence Under Section 138, Cr. P.C. is to be recorded if the aggrieved person appear and shows cause against the order. Evidence can be oral or documentary."
6. Mr. N. S. Bawa, learned counsel appearing for the petitioners has argued that there is flagrant violation of the provisions of Sections 133 and 138 of the Code inasmuch as no evidence of the petitioner has been recorded as was required to be done by following the procedure prescribed for recording evidence in summons cases. Learned counsel has further urged that the principles of natural justice have been flagrantly violated and without any reasonable opportunity, the order has been passed directing the petitioners to stop their operation which is in existence for the last over three decades. Learned counsel has also contended that the Punjab Bone Mills which is also spreading pollution, has been spared of any action whereas orders have been passed under Section 133 read with Section 138 of the Code against the petitioners who are poor people and their livelihood is dependant upon the Hadda Rori operation. According to the learned counsel, as a result of stopping Hadda Rori operation of the petitioners, a large number of dead animals would be found scattered in the surrounding villages which would enhance the danger of public nuisance many-fold than it was caused by the operation of Hadda Rori of the petitioners.
7. After hearing the learned counsel for the petitioners and perusing orders, Annexures P-1, P-4 and P-6, I am of the considered opinion that this petition lacks merit and is thus liable to be dismissed because no manifest injustice has been caused to the petitioners which may warrant interference by this Court under Section 482 of the Code.
The Chairman, Punjab Pollution Control Board submitted his report on 10-9-2002 taking notice of the foul smell and pollution being caused to the inhabitants of the area as well as to the users of G. T. Road/National Highway. Another report has been obtained from the Tehsildar-cum-Executive Magistrate on 16-9-2002 which was prepared by associating the villagers. The aforementioned report has also recorded the foul smell, pollution, dead bodies of animals, bones and carcases of animals on the spot. It was on the basis of these reports that the District Magistrate was compelled to pass a conditional order under Section 133(i)(ii) of the Code. It was called upon the petitioners to stop their operation of Hadda Rori or show cause why the order dated 20-9-2002 be not made final. The petitioners appeared before the District Magistrate on 27-9-2002 and were given time to file reply by 11-10-2002. They, however, failed to appear on 11-10-2002 nor any reply was filed. As a consequence, the order dated 20-9-2002 was made final under the provisions of Section 138 of the Code. It is no doubt true that the District Magistrate has passed the order on 11-10-2002 without recording any evidence but in a matter of nuisance calling for urgent attention, no delay could be brooked. The petitioners displayed lazy approach by remaining absent on 11-10-2002 nor did they file any reply. The aforementioned absence of the petitioners could lead to a reasonable inference that they did not have any thing to say in defence of the conditional order dated 20-9-2002, Therefore, adequate opportunity had been given to the petitioners in the fads and circumstances of the present case. Thus, I do not find any infraction of procedural law envisaged by Sections 133 or 138 of the Code.
8. The argument that the evidence in accordance with the procedure of summon case was required to be recorded, has failed to impress me for the simple reason that once the petitioners were absent on 11-10-2002, there was hardly any room for the District Magistrate to proceed with the recording of the evidence, as none was produced. The report of the Chairman, Punjab Pollution Control Board dated 10-9-2002 and the report of the Tehsildar-cum-Executive Magistrate dated 16-9-2002 were considered sufficient for passing the final order for removal of the nuisance. Therefore, there is no substance in the contention raised by the learned counsel.
9. I also do not feel impressed with the argument that the pollution is being caused by Punjab Bone Mills which is situated opposite the Hadda Rori being operated by the petitioners and no action is being initiated against it because no reverse equality can be claimed by a citizen and it cannot be said that if a wrong has been committed by one person, the other also becomes entitled to commit a wrong. Further, no complaint disclosing causing of nuisance by Punjab Bone Mills appears to have been received by the District Magistrate. If the petitioners have any such grievance, they can always approach the District Magistrate for taking action by passing appropriate orders. It is further appropriate to mention that in so far as the petitioners are concerned, they are not licensed to carry on these operations by any Local Body nor they have been cleared by the Punjab Pollution Control Board. Therefore, they cannot be heard to complain against the Punjab Bone Mills. The plea is absolutely illegal and liable to be dismissed.
10. For the reasons recorded above, these petitions fail and the same are dismissed.