M.Cr.C. No. 4282/2009                             1
                Subodh Kumar and others
                           Vs.
                 Vipin Kumar and others
20/08/2015

      Shri D.D. Bansal, Advocate for the petitioners.
      None for the respondents.

This petition under Section 482 of Cr.P.C. has been filed to invoke the inherent jurisdiction of this Court and to set aside the order dated 27.05.2009 passed by IInd Additional Sessions Judge, Ashoknagar, passed in Criminal Revision No. 05/2009 and order dated 27.02.2009 passed by SDM, Ashoknagar in Criminal Case No. 02/133/2002.

The facts in the short giving rise present petition are that, the petitioners having constrain relations due to civil litigation submitted an complaint/application on 28.01.2002 to the then Collector, Guna alleging that the petitioners are running a Plastic Industry and installed an area. Machine in the house situated at Ward No. 18, near Jain Mandir, Subashganj which is causing pollution and looking to the health problems to the citizens near by. The SDM has passed an order earlier on 07.12.2001 to close the industries but in spite of this the several industries are being run. Hence, it is prayed for closed/removed these industries.

Collector Guna, directed the SDM to take action in the matter under Section 133 of Cr.P.C. The learned SDM in compliance of the directions issued by the Collector passed conditional order on 08.02.2002 against the petitioners to close the M.Cr.C. No. 4282/2009 2 Subodh Kumar and others Vs.

Vipin Kumar and others Plastic Industries and and saw machine (Aara) and asked to show cause why this order be not made final.

The petitioner/non-applicant No. 1 Subodh Kumar submitted reply on 26.03.2002 contending that he is not doing any business but he is an Advocate by profession and contended the allegation are false. Petitioner No 2 Anil Kumar, who is running the said business and the non-applicant/petitioner No. 1 has no nexus with the said business. Non applicant/petitioner No. 1 further contended that Anil Kumar being unemployed and economical condition of the family being poor, non-applicant/petitioner No. 2 applied and was sectioned loan to start the small industry in which he is manufacturing electric holder, adopter, board etc. and no pollution is being created by the said industry work. It is also contended that the business is being run as per provisions of Air (Prevention and Control of Pollution) Act, 1981.

Learned SDM rejected the preliminary objection of the non- applicants vide order dated 10.06.2002 and after framing charge of public nuisance under Section 133 of Cr.P.C and proceeding with the case after regarding nuisance. The learned SDM passed the impugned order on 27.02.2009 and directed to close the industries and remove the saw machine from this premises.

Beside the said order dated 27.02.2009 the non- applicant/petitioners preferred Criminal Revision before Second M.Cr.C. No. 4282/2009 3 Subodh Kumar and others Vs.

Vipin Kumar and others Additional Sessions Judge and Sessions Judge, Ashoknagar. The learned Additional Sessions Judge after hearing arguments but without considering the material available on record dismissed the revision and confirmed the order passed by SDM vide its impugned order dated 27.05.2009.

During the argument learned counsel for the petitioners through the statement of AW-3 Manoj Kumar, said that this small industry running is 14-15 years. It is also claimed that this business is being run by the petitioner No. 2 Anil Kumar for long period. But there being a dispute with regard to way between the parties, the complaint was deliberately made. The business which is being done for more then 14-15 years could not have been directed to be closed merely on the complaint of persons having constrain relations due to civil dispute about encroachment done by the applicants.

Learned counsel for the petitioners also submitted that the report is not relevant and cannot be relied upon against the non- applicants which was prepared even prior to filing the complaint. It is submitted that no actual spot inspection was done by learned SDM before passed the order. On the contrary the non-applicants got inspected the industry through Pollution Control Board who after making inspection issued the certificates Ex. D/1 to D/4. The petitioners further prayed that the learned Court below for care to certificate issued by pollution Board after making enquiry.

Subodh Kumar and others Vs.

Vipin Kumar and others The complaint made by the applicants clearly comes under the provisions of the Act. Section 43 (Prevention and Control of Pollution Act, 1981) of the Act is no complaint was made to the competent authority under the Act nor the complaint has been filed to the SDM by the Board. In Abdul Hamid Vs. the Gwalior Rayon Sinlk Mfg. (WVG) Co. Ltd and others reported in 1989 CRI.L.J. 2013 this Court's is held that :-

"The Water Act and the Air Act are special Acts brought on the Statute-book and constitute a complete Code for prevention and control of water and air pollution by any trade or industry. It has expressly been mandated therein that notwithstanding anything inconsistent therewith contained in any enactment other than the Acts their Provisions have to prevail. Inconsistent provisions in any other Act cannot, therefore, be permitted to come in the way of the provisions of the special Acts and defeat them. In view of the express provisions in Section 52 of Air Act and Section 60 of the Water Act it has to be held that to the extent of inconsistency the provisions of the Panel Code, General Clauses Act and the Code stand repealed. In matters relating to pollution of air or Water by trade or industry recourse has to be taken to the provisions of the special Acts."

Learned counsel for the petitioners start nuisance argued that learned SDM made exercised charged under Section 133 of Cr.P.C. Only in respect of public nuisance and not in respect of private M.Cr.C. No. 4282/2009 5 Subodh Kumar and others Vs.

Vipin Kumar and others nuisance. According to them, if it is case of private nuisance namely if the act of someone else causes nuisance to the petitioners then he should have approached the competent Civil Court for redressal of his grievance regarding private nuisance and not that action can be taken under Section 133 of the Cr.P.C.

learned counsel for the petitioners stated on Makhan Lal Vs. Buta Singh reported in 2003 CRI.L.J. 4147 in which it is held that the proceedings under Section 133 of Cr.P.C, cannot be initiated since the small industry has been installed 14-15 years ago. In the light of statement of AW-3 Manoj Kumar who has stated that this small industry was installed number of years working for the last 14-15 years. Evidence did not prove that an urgency existed warranting the taking of action under Section 133 of Cr.P.C. not provided.

In Vasant Manga Nikumba Vs. Baburao Bhikanna Naidu reported in (1996) 1 SCC (Cri) 27 held that :-

"The circumstance and the evidence in that case did not prove that an urgency existed warranting the taking of action under Section 133. No action can be taken under this section where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil court. It was also held that Section 133 is attracted only in cases of emergency and immediate danger to the health or physical comfort of the community.

Subodh Kumar and others Vs.

Vipin Kumar and others Accordingly, on the facts in that case, it was held that there was no immediate danger or emergency for the removal of the structure offending in that case. It is also settled law that recourse to Section 133 could not be a substitute for the civil proceedings and the parties should have recourse to the civil remedy available and should not be encourse (sic encouraged) to taking recourse to the provisions of Section 133 of the Code."

Keeping in view the above, there is no warrant in exercising the power under Section 133 of the Cr.P.C. even petitioner No. 2 had sanctioned from Pollution Board.

Before omega, it would be appropriate to hold that the respondents be approached to Green Tribunal in this regard if there is public nuisance.

With the above note, this petition is allowed. Impugned order dated 27.05.2009 passed by 2nd Additional Sessions Judge, Ashoknagar and the order dated 27.02.2009 passed by the Sub- Divisional Magistrate, Ashoknagar are set aside.

(S.K. Palo) JUDGE LJ*