Dipak Kumar Sen, J.
1. Messrs. K.L. (P) Limited, the petitioner No. 1, has been manufacturing sodium dichromate and sodium sulpha teat its factory at 64/2, Old Nimta Road, P.S. Belgharia, Calcutta-56 since 1976 under licence from the Kamarhati Municipality.
2. On Sept. 10, 1979 a notice was issued by the Vice-Chairman of the Kamarhati Municipality under Section 452 of the Bengal Municipal Act, 1932 alleging, inter alia, that injurious gases and vapour are being generated at the factory, in the process of manufacture, causing danger to public health and that offensive trade refuse was allowed to run causing pollution to a public tank. The notice further directed the petitioner No. 1 to close the said factory within 30 days from the date of receipt thereof.
3. The petitioner No. 1 and one of its directors challenged the said notice by a writ petition where a rule nisi was issued on Jan. 19, 1980 and an ad interim order restraining the Municipal Authorities fromgiving further effect to the impugned notice was passed.
4. During the pendency of the above rule marked C.R.No. 10362 of 1979 the Executive Magistrate, Barrackpore, 24 Parganas initiated proceedings under Section 133 of the Code of Criminal Procedure marked Case No. M/458/79 and a notice, dt. Nov. 26, 1979 was issued by the said Executive Magistrate as follows :
Whereas it has been made to appear to me that you are running a Chemical Factory styled as K.L. (Pvt) Ltd., at Sukumar Ghosh Road, Nandannagar in Belgharia P.S. and the same is injurious to public health as the obnoxious gases, injurious dust and smoke and pungent smell emanating from the Factory are causing serious threats to the health of the inhabitants of the contiguous locality and the Chemical Wastages of the Factory are also polluting the water of a Public tank in the neighbourhood and as such the Factory should be closed down or removed to a different place.
I do hereby direct and require you within a month from the date of receipt of this order by you to cease functioning of this Factory at the said place or to remove the said factory from the place where it is now situated or to appear before this Court on 27-12-79 and show cause why this order should not made absolute and enforced.
5. It is alleged that the petitioner No. 1 received the said notice on Sept. 10, 1979. On April 11, 1980, the present application was moved by the petitioner No. 1 and its Director Sri Madhav Prosad Goenka the petitioner No. 2 against the Commissioners of the Kamarhati Municipality, the Vice- Chairman of the Municipality and the said Executive Magistrate, Barrackpore, 24 Parganas, for quashing the said criminal proceedings, when an order was passed staying the said criminal proceedings.
6. The petitioners allege that in spite of the pendency of the earlier rule the Vice-Chairman of the Municipality requested the Sub-Divisional Officer, Barrackpore, 24 Parganas to take action against the petitioner No. 1 for causing nuisance and injury to the public health on the basis of the complaints filed and that without hearing the petitioners the said criminal proceedings were initiated. It is alleged that there was no material or bona fide information on which the Executive Magistrate could proceed and that the said proceedings were mala fide and arbitrary. It is a matter of record that by an order passed on May 5, 1980 the State of West Bengal was added as a respondent to this application.
7. An affidavit affirmed by the Vice Chairman, the respondent No. 2, has been filed in opposition to this petition. It is, inter alia, alleged in the said affidavit that a mass petition dated Nov. 1, 1979 containing 154 signatures was addressed to the Sub Divisional Officer, Barrackpore and a copy of another mass petition, dt. Oct. 19, 1979 was received through 'the Minister concerned. The Executive Magistrate after considering the said petitions as also the enquiry report of the Officer-in-Charge of the local Police Station dt. Nov. 14, 1979 initiated the impugned proceedings. It is denied that any complaint was filed by or that the proceedings were initiated at the instance of the Municipal authorities.
8. On Aug. 8, 1980, a number of persons who claimed to be living in the locality were added as parties to this proceeding.
9. Reports of the several experts have been relied on by the parties, copies whereof have been filed. One of the reports is by the Sub-Divisional Health Officer, Barrackpore dt. May 7, 1980 relied on by the Municipal Authorities, The Sub Divisional Officer states in this report, inter alia, that he did not have any opportunity to see the factory when it was running. His opinion is that the disposal arrangement of trade waste in the factory was not satisfactory and there was likelihood that same would get mixed up with the sub-soil water during rainy season and could pollute the nearby tube wells and the pond used by the public. It is further opined that close proximity of the factory to the residential houses was enough to cause annoyance to the residents.
10. The petitioners rely on a report of A. K. Basu, Manager, Cement Mining & Mineral Handling Cell. From this report it appears that the petitioner No. 1 holds health licence and trade licence as well as a letter of consent from West Bengal Water Pollution and Control Board for its factory.
11. The Executive Magistrate continued with the Case No. M/458/79 during the pendency of this application. The relevant orders passed in the said case, as seen from the order sheet, are as follows :
26-11-79 ............ From all these petitions, letters and police report it appears that the obnoxious gases, injurious dust and smoke and pungent smell emanating from the aforesaid factory are causing serious threats to the health of the inhabitants of the contiguous locality and the Chemical Wastes of the factory are also polluting the water of a public tank. I therefore order directing the proprietor of the aforesaid factory to stop functioning of the factory or to remove it from the place where it is now situated or to appear before this Court on 27-12-79 and show cause why this order should not be made absolute. To 27-12-79.
27-12-79. The O.P. appears and prays for time to show cause. Seen the petition of the 2nd and heard the learned lawyer. Time is allowed. To 25-2-80 for filing show cause.
12-4-80. Seen petition of the 2nd party for staying proceeding in enclosing letter of Surendra Pal Adv. Calcutta High Court dated 11-4-80. To 13-5-80 for filing certified copy of the Hon'ble High Court.
8-7-80. Both parties represented. Heard learned lawyer for O.P. and A.P.P. for State. Also seen petition of O.P.No copy of order of Hon'ble High Court has been submitted till date although a number of dates were allowed for the same Learned A.P.P. presses for fixing up a date for evidence. To 23-7-80 for evidence.
23-7-80. E.M. is on C.L.S. witnesses along with O.C. Belghoria P.S. appears. (). P. files a petition praying for time for the ground stated in the petition. To 2-8-80 for evidence of Stale.
2-8-80. State is represented by learned A.P.P. 6 P. Ws are present. O.P. is represented. A petition Under Section 136 Cr.P.C. is filed by the State.
Heard learned A.P.P. for State and also learned lawyer for O.P. The O.P, has not shown any cause although a number of dates were fixed for the same. Besides, no copy of the order of the Hon'ble High Court has been produced till date. Learned A.P.P. presses that the order dated 26-11-79 be made absolute Under/Section 136 Cr.P.C. After careful consideration the order dated 26-11-79 is made absolute. Also lodge a complaint before learned S.D.J.M. Barrackpore Under Section 188, I.P.C. for violating this Court's order by the O.P.
12. At the hearing, learned Advocate for the State supported by the learned Advocate for the Municipal Authorities submitted that the Code of Criminal Procedure was a complete Code in itself and provided for alternative reliefs and remedies and as such this Court should not interfere in this matter under Article 226 of the Constitution.
13. Learned Advocate for the petitioners contended to the contrary. He submitted that the Executive Magistrate proceeded in the matter ignoring the order of this Court, staying the impugned criminal proceeding. The Magistrate also did not proceed in accordance with the relevant provisions of the Criminal PC and committed errors which were apparent on the face of the record. As such it was open to this Court to issue appropriate writs in the nature of certiorari.
14. Learned Advocate for the petitioners cited the following decisions in support of his contentions :
a) Murlidhar Bhila Patil v. Onkar Vyankat Patil reported in : AIR1961Bom263 In this case a learned Judge of the Bombay High Court held that an order under Section 133 of the Cr. P.C. could be justified only if the conduct of the trade was found to be injurious to the health or physical comfort of the community in pracscnti. A distant possibility of an injury to the health or physical comfort of the community would not justify an order under this section.
b) Krishna Jillai Bhaskaran Nair v. Varghese Samuel reported in 1975 Cri LJ 104. This decision of a learned Judge of the Kerala High Court in a criminal revision case was cited for the following observation :
If the person against whom the show cause summons is served, appears and files objections, the Magistrate should not dispose of the case under Section 136, but should take evidence and satisfy himself that the order passed by him is reasonable and proper. Even in cases where the person concerned does not pursue his objections, the complainant should lead evidence on his side and should not leave the Magistrate to base his order on materials placed before him when the preliminary order was passed.c) State of Maharashtra v. Hasan Ali Vali Mohammed reported in 1975 Cri LJ 1982. In this case a learned Judge of the Bombay High Court held that where the respondents appeared but failed to show cause after an order was passed under Section 133 of the Criminal PC it was not open to the Executive Magistrate to make the preliminary order absolute without taking any evidence, even though the Magistrate was personally satisfied on an inspection of the site.
The relevant provisions of the Criminal P.C. are noted as follows :
Section 133 :
(l) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers -
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public ; or
(b) 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 not should be removed or the keeping thereof regulated ; or
(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion should be prevented or stopped ;
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure or the removal or support of such tree, is necessary ; or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public ; or
(f )that any dangerous animal should be destroyed, confined or otherwise disposed of.
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 -
(i) to remove such obstruction or nuisance ; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed ; or
(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance ; or
(iv) to remove, repair or support such tent, building, or structure, or to remove or support such tree ; or
(v) to fence such tank, well or excavation ; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order ; or if he objects so to do, to appear before himself or some other Executive Magistrate, subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court ................
Section 136 :
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 IPC and the order shall be made absolute.
Section 137 :
(1) Where an order is made under Section 133 for purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 138, inquire into the matter.
(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of existence of such right has been decided by a Competent Court ; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138.
(3) A person who has, on being questioned by the Magistrate under Sub-section (1) failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.
Section 138 :
(1) If the person against whom an order under Section 133 is made appears and shows 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 either as originally made or subject to such modification as he 'considers necessary, is reasonable and proper, the order shall be made absolute without modification or. as the case may be, with such modification.
(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.
Section 141 :
(l)When an order has been made absolute under Section 136, or Section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require, him to perform the act directed by the order within the time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by Section 188 of the IPC.
(2) If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it. either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate's local jurisdiction and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.
(3) No suit shall lie in respect of anything done in good faith under this section.
15. Generally, I would not be inclined to interfere in a criminal proceeding where the Criminal PC provides adequate alternative reliefs. But in the facts and circumstances of this case, it appears to me that it would defeat the ends of justice if I dispose of this application in favour of the respondents on this preliminary ground.
16. The fact remains that this Court had stayed further hearing of the case pending before the Executive Magistrate. The earlier rule directed against a similar notice issued by the Municipal Authorities was also pending adjudication before this Court. In spite of the aforesaid and in spite of the fact that there was a communication from the learned Advocate that the proceeding in Case No. M/458/79 has been stayed by this Court the Executive Magistrate proceeded in the matter and passed a final order.
17. The records in Case No. M/458/79 reveal that the order of the Executive Magistrate suffers from several serious infirmities. It is a matter of record that after the preliminary order was passed under Section 133 of the Cr PC the petitioners appeared before the learned Magistrate on 27th Dec. 1979 and submitted that they would show cause. The petitioners, no doubt, failed to produce certified copies of the orders of this Court in the said criminal proceeding and on that ground they kept asking for time.
18. The petitioners having appeared in the proceeding it was not open to the learned Magistrate to proceed under Section 136 of the Code. The learned Magistrate was bound to follow the provisions of Section 137 and question the petitioners whether they denied the existence of a public right on the basis of which the complaint had been made. If the petitioners had denied that there was any public right in favour of the complainants the learned Magistrate was called upon to enquire in the matter further.
19. In any event, the petitioners having appeared pursuant to the order passed under Section 133 of the Code the learned Magistrate was called upon to come to a finding on evidence before he could pass a final order. This appears to be the law as laid down in the decision cited on behalf of the petitioners. No decision has been cited on behalf of the respondents to the contrary. It is to be noted that the prosecution was ready with its witnesses and the matter had been set down for recording evidence.
20. After passing the final order on the 2nd Aug. 1980 the learned Magistrate immediately directed that, a complaint should be lodged before the Sub-divisional Judicial Magistrate, Barrackpore under Section 188 of the I PC on the ground that there has been violation of his order by the petitioners. This direction was passed in contravention of the provisions of Section 141 of the Code. Under the provisions of the said section the learned Magistrate was required to give another notice to the petitioners calling upon them to comply with his order within the time to be fixed in the notice and only in case of disobedience the petitioners would be liable to the penalty under Section 188 of the IPC. No such notice was issued.
21. In the premises, it appears that the errors committed by the learned Magistrate which are apparent from the record are fatal and go to the root of the matter and that the learned Magistrate proceeded without jurisdiction.
22. For the reasons above I set aside the final order passed in 'Case No. M/458/79 on Aug. 2, 1980 under Section 136 of the Code. It is made clear that the case may be proceeded with further that was in accordance with law. The application is thus disposed of without any order as to costs.