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Rajagopala Chettiar Vs. Samdum Begum - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1943Mad357; (1943)1MLJ237
AppellantRajagopala Chettiar
RespondentSamdum Begum
Cases ReferredLalman v. Bishambarnath I.L.R.
Excerpt:
- - a good deal of time was occupied in the arguments by a discussion of the question how special acts and general acts, if they came into conflict, are to be treated. under section 44, if the health officer is satisfied .he may by notice require the person by whose act, default or sufferance the nuisance arises or continues......to abate nuisances under section 44 of the madras public health act and section 195 of the madras local boards act. the facts are that the joint magistrate of tindivanam issued a preliminary order under section 133, criminal procedure code, calling upon the owner of a local rice mill to cease working the factory or to remove it to some other place, on the ground that it constituted a nuisance in that it affected the health and comfort of the general public living in the locality. in the alternative he was given an opportunity of showing cause against the removal. it may be only a clerical error in the order that he was not apparently to be given an opportunity of showing cause against ceasing to run the factory in its existing location. the point taken by mr. k. s. jayarama aiyar.....
Judgment:
ORDER

Byers, J.

1. The only question which arises for decision in this case is whether the powers of a Magistrate to abate a nuisance under Section 133, Criminal Procedure Code, have been curtailed by the powers conferred on local authorities to abate nuisances under Section 44 of the Madras Public Health Act and Section 195 of the Madras Local Boards Act. The facts are that the Joint Magistrate of Tindivanam issued a preliminary order under Section 133, Criminal Procedure Code, calling upon the owner of a local rice mill to cease working the factory or to remove it to some other place, on the ground that it constituted a nuisance in that it affected the health and comfort of the general public living in the locality. In the alternative he was given an opportunity of showing cause against the removal. It may be only a clerical error in the order that he was not apparently to be given an opportunity of showing cause against ceasing to run the factory in its existing location. The point taken by Mr. K. S. Jayarama Aiyar in revision is that by virtue of the corresponding provisions in the Madras Public Health Act and the Madras Local Hoards Act, the learned Magistrate had lost his jurisdiction to deal with nuisances of this character. In support of his argument he has relied on several passages in Maxwell's Treatise on the Interpretation of Statutes and also on the decision in Corporation of Madras v. Madras Electric Tramways, Ltd. (1930) 60 M.L.J. 551 : I.L.R. Mad. 364 in which the learned Judge dealt with the question of conflicts arising between general statutes and special acts in this way:

A good deal of time was occupied in the arguments by a discussion of the question how special Acts and general Acts, if they came into conflict, are to be treated. A great deal of that discussion, if 1 may say so, appeared to me unnecessary. There is the old maxim, generalia specialibus non derogant that general provisions do not derogate from special provisions. If the legislature makes a special Act dealing with a particular case and later makes a general Act, which by its terms would include the subject of the special Act and is in conflict with the special Act, nevertheless unless it is clear that in making the general Act the legislature has had the special Act in its mind and has intended to abrogate it, the provisions of the general Act do not override the special Act. If the special Act is made after the general Act, the position is even simpler. Having made the general Act if the legislature afterwards makes a special Act in conflict with it, we must assume that the legislature had in mind its own general Act when it made the special Act and made the special Act, which is in conflict with the general Act, as an exception to the general Act. Those propositions appear to me to be beyond discussion at the present day.

It is on this principle that Mr. K. S. Jayarama Aiyar relies but Mr. Basheer Ahmed Sayeed, the learned Advocate for the respondent, contends that there is nothing in Section 133 of the Criminal Procedure Code which is in any way in conflict with the corresponding provisions in the two local Acts. He agrees that there are similar remedies provided in these three Acts but contends that there is nothing in conflict between them, the only differences being regarding the powers which the various authorities possess under the different provisions.

2. Omitting unnecessary words, these are the various provisions. Under Section 133 (1) of the Code:

Whenever...a Sub-Divisional Magistrate...considers . . . . . that the conduct of any trade...is injurious to the health or physical comfort of the community and that in consequence such trade or occupation should be prohibited or regulated . . . such Magistrate may make a conditional order requiring the person ...carrying on such trade to desist from carrying on or to remove ...such trade . . . .or, if he objects so to do, to appear before himself...and move to have the order set aside or. modified.

The corresponding provision in Section 195 (1) of the Madras Local Boards Act is in these words:

If in any factory . in which steam power, water power or other mechanical power or electrical power is used, nuisance is caused by reason of the particular kind of fuel employed or by reason of the noise or vibration created, the panchayat may issue such directions as it thinks fit for the abatement of the nuisance within a reasonable time to be specified for the purpose.

(2) If there has been wilful default in carrying out such directions or if abatement is found impracticable, the panchayat may prohibit the use of the particular kind of fuel employed or restrict the noise or vibration by prohibiting the working of the factory, work shop or work place between the hours of 9-30 p.m. and 5-30 a.m.' Under 'section 43 of the Madras Public Health Act,any person aggrieved by a nuisance in any local area may give information of the same to the Health Officer or any other officer of the public health establishment of the local authority.

Under Section 44,

if the Health Officer is satisfied ...he may by notice require the person by whose act, default or sufferance the nuisance arises or continues...to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose.

It is clear from a comparison of these several provisions that there is nothing in conflict between them, and, as pointed out by Mr. Basheer Ahmed Sayeed, the only differences between them are in the remedies provided. For instance, under Section 133 of the Code a Magistrate has jurisdiction to stop a factory working or to direct its removal, but under Section 195 of the Madras Local Boards Act, the powers of the Panchayat Board are limited to abating nuisances of smoke or noise. The learned Public Prosecutor, who opposes the petition, has cited the case of Lalman v. Bishambarnath I.L.R.(1931) All. 359. That was a case in which a Magistrate had taken action under Section 133 of the Code to abate a nuisance caused by the working of a lime kiln and in view of the corresponding provision in the Local Municipalities Act, the right of the Magistrate to take action under Section 133 of the Code was challenged. The contention was overruled and the learned Judge held that there was jurisdiction in the Magistrate to act under Section 133 of the Criminal Procedure Code although the order was set aside on other grounds. A further point taken by the learned Public Prosecutor is that as the Criminal Procedure Code is an Act of the Indian Legislature its provisions cannot be in any way affected by a local Act. For these reasons, I agree that the learned Magistrate had jurisdiction to proceed under Section 133 of the Code. Whether or not the remedy proposed for the abatement of the nuisance is within his powers or suitable to the facts of the case is a matter which is beyond the scope of the present petition. The petition is accordingly dismissed.

3. There is also a petition for the transfer of this case from the file of the Joint Magistrate for the reasons set out in the affidavit but in view of what has happened no further proceedings are likely. I am informed that the licence granted to the factory by the local Board has subsequently been cancelled, so that the question of abating the nuisance caused by its working will no longer arise, other remedies being applicable should the petitioner continue the working of the factory without a licence. I am also informed that the Government have issued proceedings under which the local Panchayat Board will declare the area to be a residential area within the meaning of Section 89 of the Madras Public Health Act. The effect of this will be that under Section 92 (b) of the Act appropriate restrictions will be placed on the working of the factory so as to prevent any nuisance. The petition for transfer is therefore dismissed.


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