Jammu & Kashmir High Court
Rishi Kumar vs Tehsildar Ramkot, District Kathua, ... on 28 September, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRR No. 17/2017, IA No. 01/2017
Date of order:-28.09.2018
Rishi Kumar Vs. Tehsildar Ramkot, District Kathua, Jammu and Anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. H. L. Koul, Advocate.
For respondent (s) : Mr. P. S. Dutta, Sr. Advocate with
Mr. D. S. Chauhan, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. The instant Criminal Revision Petition has been filed by the petitioner against the order of Tehsildar Ramkot dated 16th October, 2015 served on the petitioner on 16th June, 2016, by virtue of which the petitioner has been ordered under Section 133 Cr.P.C. to stop poultry farm and also dispose of poultry birds; prayer has also been made for setting aside the same as being totally illegal and against the rights of the petitioner.
2. The aforesaid impugned order has been challenged by the petitioner on the following grounds:-
a) That the order impugned is totally in violation of Mandatory provisions of Section 133 Cr.P.C to Section 139 of Cr. P.C as such is liable to be set aside.
b) That Section 133 Cr.P.C cannot be applied where there is apprehension only on something. This Section only applies where the unlawful nuisance is actually in existence. A distant possibility of an injury to health or physical comfort to the community does not justify order under this Section.
c) That Tehsildar (respondent) has made an order Annexure-A, which is an Absolute Order under Section 133 Cr. P.C without conducting proper enquiry, without taking any evidence, which was required and above all without hearing the petitioner and not conducting spot inspection in violation of provisions of Section 133 Cr. P.C to Section 139 Cr.P.C. The Tehsildar before passing of the order has not followed the mandatory procedure laid under Section 133 to 139 Cr. P.C as such the said order cannot sustain in the eyes of law.
d) That Tehsildar under law was required to satisfy himself before passing of the order, by recording the statements of petitioner and the other villagers who had not come before him, simply on the basis of two or three parties made the impugned order without following the mandatory provisions of law.CRR No. 17/2017 a/w IA No. 01/2017 Page 1 of 11 2
e) That the allegations leveled by 2 and 3 people are only that the bad smell is coming out of poultry farm and it may cause trouble in the event of bird flu.
f) That merely discomfort caused due to bad smell in carrying of poultry and apprehension only, no order under Section 133 Cr. P.C can be made. It is pertinent to mention here that there are other poultry farms numbering near about 3 to 4 within the village, which are being run by the other villagers, for which no such order has been passed and it is only out of enmity of 2 to 3 people with the petitioner, the order has been passed.
g) That the allegations leveled by the 2 and 3 people are out of pure enmity and nothing else, facts remains:-
i) That the petitioner has started poultry in 2004 at village Ramkot in his own land in Khasra No. 413 on one corner of the total land measuring nearly about 13 kanals touching forest side.
ii) That the people (2 or 3 in number) who have complained are living more than 500 meters away from the said poultry farm and when the petitioner living in his residential house in the land itself near the poultry farm.
The two people who had complained Girdhari Singh and Headmaster are not living in the village at all.
iii) That complaints made are purely out of enmity and nothing else otherwise for the last more than 12 years nobody had complained against the running of the poultry farm.
h) That the petitioner is a very poor man and it is only after availing of loan from Grameen Bank, has started the said poultry farm right from 2004 to earn his livelihood and also for his family members.
i) That stopping of poultry farm is totally arbitrary and illegal out of enmity, the stopping of poultry farm will deprive the petitioner from earning livelihood, which will cause great misery and torture for the entire family of the petitioner.
j) That the order impugned is totally motivated made at the behest of some 2 or 3 people, when other people of the village have given their no objection and had never made complaint. The attested copies are enclosed as Annexure- B and C, which in categorically terms show that running of poultry farm of the petitioner does not cause any discomfort for anybody.
k) That Tehsildar (respondent) passed the order Annexure-A without considering the Sections 133 to 139 Cr.P.C properly without application of mind, without following the well-established mandatory provisions of Law from Sections 133 to 139 Cr. P.C as such order needs to be set aside.
l) That the petitioner out of shock and ailment could not file the revision petition immediately after its receipt in June, 2016.
m) That order passed besides being violative of Sections 133 to 139 Cr. P.C, is arbitrary and has been passed after condemning petitioner unheard and is against the principle of natural justice.
3. Objections have been filed on behalf of respondent No.4. The stand taken therein is that impugned order was passed by the Tehsildar, Ramkot on CRR No. 17/2017 a/w IA No. 01/2017 Page 2 of 11 3 12th October, 2015. That he had been issued summons on 09th October, 2015 to appear on 12th October, 2015 and the same was received by him; he applied for the copy of the order vide his application dated 09th January, 2017 and was given the copy of it on 11th January, 2017. The copy of the order was served upon the petitioner on 16 th June, 2016 to reiterate the direction already passed, i.e., order dated 16th October, 2015 so as to ensure that no violation, if any, of the order under Section 133 Cr.P.C. takes place. The order was passed after proper proceedings as per the mandate of Sections 133 to 139 Cr.P.C and no violation of any provision has taken place.
4. As the poultry farm is near the houses and school, the foul smell created by it amounts to public nuisance in terms of section 133 Cr.P.C. It has also been submitted in the objections that proper enquiry was conducted and the evidence was recorded through Naib Tehsildar concerned. The petitioner was heard and his statement was recorded by the Naib Tehsildar and the spot inspection was got done through the Patwari. Furthermore, the proceedings in the matter continued for approximately seven months, i.e., from the date of the application by the applicant under Section 133 Cr. P.C before SDM, Billawar upto the issuance of the order by the Tehsildar under Section 133 Cr.P.C and, thus, a thorough enquiry was done as mandated by Sections 133 to 139 Cr. P.C. The petitioner and one of the applicants in the application under Section 133 Cr. P.C, namely, Girdhari Singh were duly summoned to appear on 12 th October, 2015, i.e., the date on which the order was signed by the Tehsildar.
5. That a resolution against continuation of the poultry farm was passed by the Panchayat and the concerned Numberdar and Chowkidar had also spoken against the continuation of the poultry farm at its present location. In reply to the petitioner's contention that "there are other poultry farms", it is submitted that the action shall be taken under rules against all other poultry farms existing within the jurisdiction of the respondent as CRR No. 17/2017 a/w IA No. 01/2017 Page 3 of 11 4 and when they are reported to be causing public nuisance. The application was given by the residents of hamlet Drabh of village Lakhari (where the poultry farm is situated) and has signatures of eleven people. From the statements of the applicants, whose statements were recorded and of the Numberdar and Chowkidar, it comes to light that the poultry farm was at a distance of less than 15 meters from the residence of the applicants. Furthermore, the petitioner has himself said in his statements, recorded before the Naib Tehsildar on 01st June, 2015, stating that the poultry farm is at a distance of 40 feet from the residential house of applicant-Girdhari Singh, who was one of the applicants in the application under Section 133 Cr. P.C. The Headmaster and Girdhari Singh are the residents of village Lakhari and a Certificate was issued by the Headmaster, alleging that the poultry farm could have an adverse effect on the health of school children. This Certificate was issued by him, not in his personal capacity, but in his capacity as the Headmaster of the Govt. Primary School, as he apprehended public nuisance due to smell and bird flu to the children of the School. An act of nuisance cannot be condoned by virtue of the fact that it has been continuing since long and nobody complained of it, particularly, when it may cause health hazard.
6. I have heard the counsel for the parties. Petitioner has reiterated all grounds taken in the memo of petition. In support of his contention, learned counsel for the petitioner has placed reliance on the decisions of Hon'ble Supreme Court rendered in cases titled, Suhelkhan Khudyarkhan and ors. Vs. State of Maharashtra and ors., reported in 2009 AIR (SC) 1868 and Ram Autar and others Vs. State of Uttar Pradesh, reported in 1962 AIR (SC) 1794.
7. Reliance is also placed on the judgments of this Court rendered in cases titled, Mukhtar Ahmad Mir Vs. Ghulam Rasool Mir, reported in 2015 (2) SriLJ 890; Abdul Azia Mir Vs. Javaid Ahmad Khan, reported in 2003 (2) JKJ 70 (HC) as well as on the judgment of High Court of CRR No. 17/2017 a/w IA No. 01/2017 Page 4 of 11 5 Madhya Pradesh rendered in case titled, "Shaukat Hussain Vs. Sheodayal Saksaina, reported in 1958 AIR (MP) 350.
8. Learned counsel for the respondents has supported the order and has argued that after complying with the relevant provisions of law on the subject and after providing full opportunity of being heard to the petitioner, order under challenge has been passed.
9. I have considered the rival contentions and gone through the law on the subject. I have also gone through the record of court below.
10. CHAPTER-X of Cr.P.C. deals with public nuisance. Section 133 deals with conditional order for removal of nuisance. Relevant part of section 133, which is necessary to decide the controversy in present petition, reads as under:-
"Section 133. Conditional order for removal of nuisance.- (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or an *[Executive Magistrate] of the first class considers, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit, ----------------- that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community , and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order; to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation; or or if he objects so to do so, to appear before himself or some other (Executive Magistrate) at a time and place to be fixed by the order and move to have order set aside or modified in the manner hereinafter provided."
Sections 134, 135, 136 & 137 Cr.P.C. read as under:
CRR No. 17/2017 a/w IA No. 01/2017 Page 5 of 11 6"Section 134. Service or Notification of order.- (1). The order shall, if practicable, be served on the person against whom it is made, in manner herein provided for service of a summons.
(2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the [Government] may, by rule direct, and a copy thereof shall be struck up at such place or places as may be fittest for conveying the information to such person.
Section 135. Person to whom order is addressed to obey or show cause.- The person against whom such order is made shall -
(a) perform within the time and in the manner specified in the order, the act directed thereby; or
(b) appear in accordance with such order and show cause against the same. Section 136. Consequences of his failing to do so.- If such person does not perform such act or appear and show cause , he shall be liable to the penalty prescribed in that behalf in Section 188 of the Ranbir Penal Code and the order shall be made absolute..
137. Procedure where he appears to show cause.- (1) If he appears and show cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.
(2) If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case.
(3) If the Magistrate is not so satisfied, the order shall be made absolute."
11. From bare perusal of this chapter and provisions mentioned herein above, it is evident that whenever District Magistrate or a Sub-Divisional Magistrate or an Executive Magistrate of the first class considers, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit, that the conduct of any trade or occupation, is injurious to the health or physical comfort of the community, and that in consequence, such trade or occupation should be prohibited or should be removed, he may make conditional order against person from carrying such trade or occupation and direct him to appear before him to have order set aside or modified in the manner hereinafter provided. Section 134 provides mode of service of such notice; Section 136 provides CRR No. 17/2017 a/w IA No. 01/2017 Page 6 of 11 7 consequences of non-performance of such act or appearance and show cause against the order. Section 137 states that if a person appears and show cause against the order, then Magistrate shall take evidence in the matter as in a summons-case and after concluding inquiry, if he is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case and if he is not so satisfied with reply and evidence produced by the person, the order shall be made absolute.
12. The object of Section 133 is to enable the Magistrate to pass quick Order and deal speedily where public nuisance or obstruction is made. Under this Section no danger to general public is necessary and possible danger to a single individual is sufficient. Alternative remedy under other Act does not oust jurisdiction under Section 133. Procedure prescribed under Section 133 is not a condition precedent to a prosecution under the Penal code or to the maintenance of civil suit. The proceedings contemplated by Section 133 of the Code are of a very urgent nature and the Executive Magistrate is expected to forthwith order for the removal of obstructions in the matter of nuisance. Any person having interest in the subject matter and feeling aggrieved by the alleged public nuisance may participate in the proceedings.
13. In the present case, on the petition of the respondent Girdhari Lal and seven more persons of Drab Panchayat Tehsil Billawar, Sub-Divisional Magistrate, Billawar, ordered to initiate a proceeding under Section 133 Cr.P.C; in the said application it has been mentioned that there are 15 families in the area, where petitioner herein is about to start poultry farms; that raising of poultry farm would cause hazard for all families; that poultry birds may cause swine flu and it may cause flu to human beings also; SDM considering the provisions, as laid down under Section 133(1)(b) Cr.P.C. report along with revenue records was called from Tehsildar concerned; who in turn directed Naib Tehsildar of area to report in this regard. Naib CRR No. 17/2017 a/w IA No. 01/2017 Page 7 of 11 8 Tehsidar conducted the detail inquiry, obtained the revenue record after calling the parties. Even Headmaster of Govt. Primary School furnished a letter to Naib Tehsildar that Poultry farm of petitioner is situated less than 1 KM, from school; so chance of birds flu will effect the health of student; petitioner also participated in inquiry; after conducting detail inquiry and hearing all interested parties, Naib Tehsildar reported to Tehsildar, who, in turn, on 11.08.2015 made a detail report to SDM concerned; his report reads as under:-
"OFFICE OF THE TEHSILDAR RAMKOT To The Sub Divisional Magistrate, Billawar/Batnota.
No:190/OQ/RMK Date: 11.08.2015 Subject:- An application under Section 133 Cr.P.C. by creating inconvenience by raising Poultry farm near the house of applicant and others. By directing the respondent not to raise the Poultry farm otherwise it will lead to multiplicity of litigation with any other order just and equitable in favour of the applicant and inhabitants of Drab Panchayat Lakhari.
R/Sir, Kindly find enclosed herewith the report of the Naib Tehsildar Nagrota Gujroo wherein, he has submitted that the Poultry farm of Sh. Rishi Kumar S/o Tara Chand is existing since past 15 years. At present the Poultry farm is non functional (since 7-8 months) and also the owner of the poultry farm has taken loan against the poultry farm. It is constructed on the land under Kh. No.413 owned by the owner of the poultry farm.
On the other hand, the applicant has constructed his residential house approximately 30 meters away from the poultry farm. He has constructed the house after the poultry farm was constructed. People of the area has also voiced their concern against the running of Poultry farm. They have complained that it creates foul smell and also can endanger lives of people in case of bird flu. It is necessary to mention here that Headmaster of Local Primary School has also voiced his concern against the running of the said poultry farm.CRR No. 17/2017 a/w IA No. 01/2017 Page 8 of 11 9
Moreover, there is no solid waste management system and water disposal system in place for disposal of remains of birds, which is mandatory for installing Poultry farm.
Therefore, the poultry farm in residential area constructed on agricultural land is a threat to safety of the people living in the periphery of the poultry farm.
Hence submitted for information and kind perusal.
Yours' faithfully, Sd/-
Tehsildar Ramkot"
14. This report was returned to Tehsildar by SDM for necessary action under law. Tehsildar then issued notices to parties on 14.9.2015 for appearance on 22.9.2015; on 16.10.2015 impugned order was passed by Tehsildar, which reads as under:-
"OFFICE OF THE TEHSILDAR RAMKOT Subject: Order under Sec. 133 Cr.P.C. creating Public Nuisance by opening Poultry Farm in residential area.
Whereas, Sh. Rishi Kumar S/o Sh. Tara Chand R/o Lakhari, Tehsil Ramkot has established a poultry farm under Kh. No.413 in the residential area;
Whereas, the local residents of Mohra Drab Panchayat Lakhari through Girdhari Singh S/o late Sh. Sant Ram filed a complaint before SDM Billawar against the running of Poultry farm in the residential area in Lakhri;
Whereas, Naib Tehsildar Nagrotra Gujroo in his report has reported that the Poultry farm can endanger the lives of people in case of outbreak of bird flu;
Whereas, Headmaster of Govt. Primary School Drab has also voiced his concern against the running of Poultry farm in the residential area as it creates foul smell in the area.
Therefore, Sh. Rishi Kumar S/o Tara Chand is hereby ordered under Section 133 Cr.P.C. to stop Poultry farm and also dispose of Poultry bird if any within a period of one week.
No:356/OQ/RMK
Dt. 16.10.15 Sd/-
Tehsildar
CRR No. 17/2017 a/w IA No. 01/2017 Page 9 of 11
10
Ramkot."
15. By virtue of this order, petitioner was asked to stop the poultry farm. Section 133 Cr. P. C. relates to public nuisance, which provides that the Executive Magistrate on receiving the report of a public officer or other information and on taking such evidence (if any) as he thinks fit, considers that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence, such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof should be regulated, such Magistrate after complying the provisions of chapter mentioned herein above shall pass the order. There is, thus, no infirmity of law in the impugned order as all procedural law has been complied with.
16. Counsel for petitioner has also argued that respondents have only apprehension that Poultry farm may cause swine flu in vicinity and may cause threat to life of students studying in nearby school.
17. Apex Court in "Vellor Citizens' Welfare Forum Vs. Union of India, (1996) 5 SCC 647 and further explained in M.C. Mehta Vs. Union of India, (2004) 12 SCC 118, it has been observed:-
"Law requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment." The Supreme Court, thereafter, observed in paragraph 26:
"26. The concept of "sustainable development" has been explained that it covers the development that meets the needs of the person without compromising the ability of the future generation to meet their own needs. It means the development, that can take place and which can be sustained by nature/ecology with or without mitigation.
Therefore, in such matters, the required standard is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. The development of the industries, irrigation resources and power CRR No. 17/2017 a/w IA No. 01/2017 Page 10 of 11 11 projects are necessary to improve employment opportunities and generations of revenue; therefore, cannot be ignored. In such eventuality, a balance has to be struck, for the reason that if the activity is allowed to go, there may be irreparable damage to the environment and there may be irreparable damage to the economic interest. A Similar view has been (Common-J) Application No.07(THC)/2013 & No.36(THC)/2013 (WZ) N.G.T.(WZ) 27 reiterated by this Court in T.N. Godavaram Thirumulpad (104) vs. U.O.I. &Ors. (2008) 2 SCC 222; and M.C. Mehta vs. Union of India &Ors.(2009) 6 SCC 142".
18. In the present case, the learned Magistrate has passed order on 16.10.2015, directing closure of the Poultry Farm business within one week on the ground that the Poultry Farm is being run in residential area, which may prove injurious to the health of not only the residents of area due to outbreak of swine flu, but it may affect the health of nearby students of Govt. Primary school. I have considered the above authorities, relied upon by the learned counsel for petitioner, as also the facts of the present case, I find that these are not applicable in present set of case, as full fledged inquiry as required under law has been conducted before passing the order impugned.
19. As a result, this Criminal Revision Petition is dismissed as it does not suffer from any infirmity of law and facts; the order impugned, passed by the learned Tehsildar Ramkot is upheld.
(Sanjay Kumar Gupta) Judge Jammu 28.09.2018 Narinder CRR No. 17/2017 a/w IA No. 01/2017 Page 11 of 11