Jharkhand High Court
M/S Saroj Treelinks vs The State Of Jharkhand on 21 September, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr) No. 431 of 2021
M/s Saroj Treelinks, a partnership Firm having its office at Singhania
Bhawan, Raod No. 8, J.J. Road, Upper Bazar, P.O.-G.P.O., P.S. Kotwali, District
Ranchi, PIN 834001 (Jharkhand), through its partner Jay Prakash Singhania,
aged about 43 years, son of Shri Bhagwati Prasad Singhania, resident of 23rd
Floor, "SG Exoitica", Kokar Road, P.O. and P.S. Lalpur, District-Ranchi, PIN
834001 (Jharkhand) Ranchi
...... Petitioner
Versus
1.The State of Jharkhand
2. The Sub Divisional Magistrate, Sadar, Ranchi
3. The Secretary, School Management Committee, Star International School,
Ranchi.
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Sumeet Gadodia, Advocate
Mr. Ritesh Kumar Gupta, Advocate
Mr. Prakash Narayan, Advocate
Mr. Rishabh Kaushal, Advocate
For the State : Mr. Deepankar Roy, A.C. to A.G.
For the Resp. No. 3 : Mr. Rajesh Kumar, Advocate
For the Intervener : Mr. P.K. Deomani, Advocate
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04/Dated 21/09/2022
Heard Mr. Sumeet Gadodia, learned counsel for the petitioner, Mr. Deepankar Roy, learned counsel for the State, Mr. Rajesh Kumar, learned counsel for the respondent no. 3 and Mr. P.K. Deomani, learned counsel for the intervener.
2. The present petition has been filed quashing of the order dated 30.11.2021 contained in Memo No. 3973 dated 30.11.2021 passed by the respondent no. 2 in Case No. M. 2987 of 2021 under section 133 Cr.P.C. whereby the petitioner has been directed to shift its Mushroom Growing Centre to some other place and to file its compliance report on the next date of hearing.
3. Mr. Sumeet Gadodia, learned counsel for the petitioner submits 2 that petitioner is a partner of M/s Saroj Treelinks which is primarily engaged in cultivation of mushrooms in Ranchi district since the year 2019. He submits that petitioner has provided employment to almost 100 local inhabitants of Nagri area of Ranchi in which 60% are women in that mushroom plant. The petitioner has taken credit facility/term loan of Rs. 195.00 lakhs from Oriental Bank of Commerce on 30.11.2019 and Rs. 65.00 lakhs for cultivation of White Button Mushrooms from Punjab National Bank on 01.02.2021. He further submits that the entire project of cultivation of mushrooms is under the direct control and supervision of National Horticulture Board under Department of Agriculture Co-operation and Farmers Welfare, Ministry of Agriculture and Farmers Welfare, Government of India and for getting in Principal Approval (IPA), the petitioner prepared a project report from Indian Council for Agricultural Research (ICAR), Directorate of Mushroom Research, Chamba Ghat, Solan, Himachal Pradesh on 29.04.2019 for 365 Tonnes per annum White Mushroom Project. The petitioner has been further granted in Principal Approval by National Horticulture Board for carrying out the activity of growth of Mushroom vide its communication dated 17.11.2020. He submits that All India Scheme is being undertaken by the Department of Agriculture Cooperation & Farmers Welfare for promoting the growth of Mushroom across the country. The National Horticulture Board also granted clearance on 18.03.2021 for availing term loan from bank. He further submits that National Horticulture Mission, Jharkhand provides subsidy in the manner prescribed in Annexure-8. The petitioner has obtained license under the provisions of Food, Safety and Standard Authority of India Act, 2006. He submits that the petitioner has also installed 4 water harvesting systems in the Mushroom cultivation plant. The respondent no. 3 and some other persons with vested interest have made frivolous and baseless complaint to different departments of the government and administrative authorities therefore, the petitioner made 3 request to ICAR-Directorate of Mushroom Research, Indian Council of Agricultural Research, Chambaghat, Solan, Himachal Pradesh about the need of taking requisite certificate from Jharkhand State Pollution Control Board and the said Agriculture Research, Himachal Pradesh vide letter dated 30.10.2021 informed the petitioner clarifying that the entire cultivation is based on short method and there is no need of taking such permission. He submits that in these back ground the petitioner all on a sudden received impugned order dated 30.11.2021 whereby the petitioner has been directed to shift its Mushroom Growing Centre to some other place and to file its compliance report on the next date of hearing which is 14.12.2021. After passing of impugned order the petitioner immediately moved before this Court and by order dated 13.12.2021 this Court stayed further proceeding of order dated 30.11.2021. He submits that there is no emergent situation to invoke section 133 Cr.P.C. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances are requirement which has not been taken care of by the learned S.D.M. To buttress his argument, he relied on judgment in the case of "Vasant Manga Nikumba and Others Vs. Baburao Bhikanna Naidu & Another" reported in 1995 Supp (4) SCC 54 wherein para 3 the Hon‟ble Supreme Court has held as under:-
"3. Nuisance is an inconvenience materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. It may be public or private nuisance. As defined in Section 268 IPC, public nuisance is an offence against public either by doing a thing which tends to the annoyance of the whole community in general or by neglect to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity. On the alternative it causes injury, obstruction, danger or annoyance to persons who may have occasion to use public right. It is the quantum of annoyance or discomfort in contra distinction to private nuisance which affects an individual is the decisive factor. The object and public purpose behind Section 133 is to prevent public nuisance that if the Magistrate fails to take immediate recourse to Section 133 irreparable damage would be done to the public. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under Section 133 4 is not intended to settle private disputes or a substitute to settle civil disputes though the proceeding under Section 133 is more in the nature of civil proceedings in a summary nature."
4. Learned counsel for the petitioner submits that petitioner was not present and purported report was prepared behind the back of the petitioner and inspite of that learned S.D.M. exercised and passed such order. To buttress his argument, he relied on judgment in the case of "Kachrulal Bhagirah Agarwal & Ors. Vs. State of Maharashtra & Ors." reported in (2005) 9 SCC 36 wherein paras 10 and 11 the Hon‟ble Supreme Court has held as under:-
"10. A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquillity. The chapter has been classified into four categories. Sections 129 to 132 come under the category of "unlawful assemblies".
Sections 133 to 143 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category covers Sections 145 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds i.e. (i) public; and (ii) private. "Public nuisance" or "common nuisance" as defined in Section 268 of the Penal Code, 1860 (in short "IPC") is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. "Private nuisance" on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds -- civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short "CPC"). Under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings under Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this section shall be called in question in any civil court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Sections 133 and 144 of the Code shows that while the former is more specific, the latter is more general. Therefore, nuisance specially provided for in the former section is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort. It itself deals with physical comfort to the community and not with those acts which are not in themselves nuisance 5 but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word "community" in clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a chapter with "public nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula.
11. The guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present. "All power is a trust -- that we are accountable for its exercise -- that, from the people, and for the people, all springs and all must exist." The conduct of the trade must be injurious in præsenti to the health or physical comfort of the community. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and occupation is in fact injurious to the health or the physical comfort of that community, an order under Section 133 cannot be passed. A conjoint reading of Sections 133 and 138 of the Code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under Section
133."
5. Learned counsel for the petitioner took the court to letter dated 30.10.2021 of the ICAR, Directorate of Mushroom Research and submits that mushroom activity does not cause pollution in any way. Mushroom is zero waste industry of agriculture research. He draws the attention of the court to the photographs contained in annexure 11 series to this petition and submits that entire activity is being conducted in a campus which is fortified by the boundary wall. On these grounds he submits that the notice is unwarranted and without considering the spirit of section 133 Cr.P.C. learned S.D.M. has issued said notice whereby the petitioner has been directed to shift its Mushroom Growing Centre to some other place and to file its compliance report.
6. On the other hand, Mr. Dipankar Roy, learned counsel for the respondent-State submits that enquiry was conducted which has been brought on record by way of counter-affidavit filed by the respondent-State. He submits that on spot verification no foul smell was found there. He submitted that however it has come in the enquiry that public and school staff have stated 6 that foul smell spreads at times during the day. He referred to sections 133, 135, 137 of the Cr.P.C. and submits that based on procedure prescribed therein the learned S.D.M. rightly issued notice. He relied on judgment in the case of "State of M.P. Vs. Kedia Leather & Liquor Ltd. and Others" reported in (2003) 7 SCC 389 and submits that so far as Water (Prevention and Control of Pollution) Act and Air (Prevention and Control of Pollution) Act, 1981 are curable however, under section 133 of the Code there is no impediment to their existence side by side and these two Acts did not impliedly overrule section 133 of the Code.
7. Mr. Rajesh Kumar, learned counsel for the respondent no. 3 submits that there is no private dispute between the parties which is not on the record. There is no civil dispute. He submits that many persons have requested to Circle Officer about the pollution as has been brought on record by way of counter affidavit vide annexure-3 filed by the respondent no. 3. He further submits that learned S.D.M. has rightly passed order as there was emergent situation. He submits that there is no illegality in the impugned order.
8. Mr. P.K. Deomani, learned counsel for the intervener submits that intervener is the Mukhia of the said village and several persons who have made complaint about the pollution.
9. In view of above submissions of the learned counsel for the parties the Court has gone through the materials on record. It is an admitted fact that after issuance of Project Approval in favour of the petitioner firm, the National Horticulture Board also granted clearance on 18.03.2021 for availing term loan from Bank to start implementation of the project work as per the terms and conditions stipulated in IPA letter dated 17.11.2020 and also gave in principle approval to the subsidy claims. The petitioner has obtained license under the provision of the Food, Safety and Standard Authority of India Act, 2006. The petitioner has also installed 4 water harvesting systems in the 7 Mushroom cultivation plant at Nagri. Looking into communication by the ICAR- Directorate of Mushroom Research, Indian Council of Agricultural Research, Chambaghat, Solan, Himachal Pradesh, there is no any requirement of taking environment clearance. The petitioner has installed the plant in question. The court has perused Annexure-7 which is letter dated 30.10.2021 which has been communicated to the petitioner which is quoted here-in-below:-
" i. Button mushroom is cultivated on specially prepared substrate known as compost. It can be procured by long or short method. Short Method of composting is an advanced and eco friendly method. In this method compost is an enclosed structure under fully aerobic conditions, hence environment pollution is nil.
ii. During indoor composting, since the compost is produced under fully aerobic conditions by supplying air through blower fan, obnoxious gases like Methane and Hydrogen Sulphide, etc. are not generated or generated in very little quantities not harmful to human beings. Little ammonia is however, generated and disbursed in the atmosphere, which is otherwise not harmful and much below the tolerance limit.
iii. Mushroom cultivation which is done in the growing rooms built for the purpose is totally non polluting activity and cannot harm human beings in any way.
iv. Generally no excess water (affluent) remains after composting. During pre-wetting of the ingredients excess water is collected in a goody pit built for the purpose and recycled for the wetting of the ingredients. It does not cause any harm to the human as such.
v. Remained compost after taking the crop is known as spent compost which is very good organic manure for the field crops and can also be utilized as the casing material for white button mushroom cultivation. This does not cause pollution in any way. Conversion of spent compost into value added organic manure or vermin compost would be a viable industry in itself.
vi. Income from mushroom is non-taxable.
vii. Mushroom is a zero waste industry where agriculture residue, as well as spent mushroom substrate (SMS) is utilized for protein rich mushroom production and manure for field crops respectively. The utilization of agri- residue helps to reduce the stubble burning thereby restricting the environment pollution particularly in North India. Growing of mushroom cultivation has been declared agriculture activity in Himachal Pradesh by the Government. Production of agriculture waste is the inherent part of our cultivation which is indispensable and has to be used judiciously to overcome the problem of pollution. There is no report on prevention and control of pollution act in agriculture and there is need to take permission for taking up agricultural activityunless value added products are prepared on commercial scale."
10. Looking into the aforesaid communication, it appears that Mushroom activity is totally non polluted activity which does not harm human being in any way. It does not create any pollution. Mushroom is zero waste industry. National Horticulture Mission, Jharkhand provides subsidy which is evident from Annexure-8 to this petition. Photographs annexed with the 8 petition suggests that Mushroom plant is being operated in boundary wall and the said boundary wall is concrete boundary.
11. In these background, it is crystal clear that what has been alleged by the other persons, no pollution is being created due to that Mushroom plant in view of Annexure-7 which is communication of the ICAR- Directorate of Mushroom Research, Indian Council of Agricultural Research, Chambaghat, Solan, Himachal Pradesh. In view of that document how the public are being affected, has not been proved. The Court also perused the enquiry report which has been brought on record way of Annexure-B to the counter-affidavit filed by the respondent-State which also suggests that on the spot verification no foul smell was found by the concerned authority. Prima facie, it appears that on the concocted allegation proceeding under section 133 Cr.P.C. has been initiated. Section 133 Cr.P.C. can be invoked if emergent situation is there. It appears that only on imagination and on the allegation of respondent no. 3 the authority concerned has come to the conclusion that there public are being affected. Lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community as held by the Hon‟ble Supreme Court in the case of " Kachrulal Bhagirath Agrawal" (supra). For bringing a trade or occupation within the operation of section 133, it must be shown that the interference with public comfort is considerable and a large section of the public is affected injuriously. The word „community‟ in clause (b) of Section 133 (1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. Moreover, for issuance of notice under section 133 Cr.P.C. there is statutory provision of Form 20 for issuing notice which has not been complied with by the learned S.D.M. The argument advanced by Mr. Dipankar Roy with regard to sections 133, 135 and 137 Cr.P.C. are not in dispute that these provision which is required to be followed once the authority 9 concerned comes to the conclusion that emergent situation has emerged that is why that section can be invoked. The judgment relied by Mr. Dipankar Roy, is not on the subject and section 133 Cr.P.C. is not an impediment even if the other acts have not been followed which is in that facts and circumstances of that case, that is not in dispute. In the case in hand petitioner is operating mushroom plant after taking valid permission and documents on record suggest that the plant of the petitioner is zero waste pollution and even Government of Indian as well as Government of Jharkhand is promoting the mushroom plantation but by the impugned order the learned S.D.M. has directed the petitioner to shift the mushroom plant and come forward with compliance report which is excathedra announcement which cannot be sustained in the eye of law.
12. In view of above facts, reasons and analysis the Court comes to the conclusion that facts suggest that in absence of jurisdiction for invoking section 133 Cr.P.C. the entire proceeding is vitiated for want of jurisdiction. Accordingly, impugned order dated 30.11.2021 contained in Memo No. 3973 dated 30.11.2021 passed by the respondent no. 2 in Case No. M. 2987 of 2021 under section 133 Cr.P.C. is hereby quashed.
13. This petition is allowed and disposed of. Pending I.A., if any, stands disposed of. Interim order is vacated.
(Sanjay Kumar Dwivedi, J.) Satyarthi/-