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Criminal Revision No. 810 of 1.967, decided on 19th March 1969.

‑Public nuisance‑Magistrate without passing a conditional order under S. 133 (1), passing order to effect that allegations were not proved within provisions of S. 133‑Such order, held, made in utter disregard of provisions of law and hence not maintainable.

Hayat Gul v. Gul Zamir P L D 1966 Pesh. 9 ref.

This is a revision petition against the order of Sh. Rashid Ahmad, Magistrate, 1st Class, Lahore, in case State v. N. A. Farooqi and Sh. Muhammad Hussain of Messrs Bone Crushing Factory, Lahore, under section 133, Cr. P. C., dated 2‑8‑66, whereby he dismissed the request of the State that the respondent should remove the nuisance caused by the Bone Crushing Factory owned by Sh. Muhammad Hussain, respondent of which N. A. Farooqi was the Manager.

2. The facts of the case, in brief, are that Medical Officer of Health, Lahore Municipal Corporation sent an application to the District Magistrate, Lahore, wherein he drew his attention to the stench and bad odour that spread from the bones and the bone‑crushing etc. which were great nuisance not only for factories situated around the Bone Crushing Factory, but also for the Staff of the Lahore General Hospital as well as the patients. According to the Medical Officer of Health the unhealthy atmosphere thus created is detrimental to the Staff, public and the patients. Further, he said that the material used in the factory i.e. bones with appendages were stored outside the premises where dogs and kites gathered and they were found howling and howling all the times. The conditions thus prevailing had become a continuous source of anxiety and nuisance for the hospital authorities. He also said that the dog menace was tremendous, stray dogs in hundreds started appearing in that area and some rabid dogs could create epidemic rabies which could be extremely dangerous to the persons residing in that vicinity; He also pointed out that the factory was running without licence from the Lahore Municipal Corporation for which not less than 15 prosecutions were launched. According to the estimate of the Municipal Officer of Health about 1500 tons of bones were stored in the premises of the factory. He also said that the conservancy arrangements were far from satisfactory as there was inadequate number of latrines for gents and ladies which were of dry system. No pans or receptacles were provided. The soakage pit provided for the sullage water remained always choked and served as a breeding place for mosquitoes. According to the doctor the poor labourers were exposed to pulmonary infections. The request was that the factory should be closed under section 144, Cr. P. C. It was decided that action should be taken against the factory under section 133, Cr. P. C. The S. H. O., Ichhra accordingly drafted the complaint under section 133, Cr. P. C. and filed it in the Court of the Ilaqa Magistrate. M. A. Iqbal Ansari, Medical Superintendent, General Hospital, Lahore, Dr. A. S. Khokhar, Health Officer, Municipal Corporation, Khawaja Khurshid Ahmad, Station Master, Kot Lakhpat, Maskeen Shah, Manager, Ittefaq Foundary and Ch. Muhammad Sharif, S. I., were cited as Witnesses. The learned Magistrate after recording the statements of prosecution witnesses and of both the respondents came to the conclusion that the allegations against the factory were not proved to warrant an action within the purview of section 133, Cr. P. C. but only to the extent that the defects pointed out by Medical Officer of Health should be removed and sanitary situation be improved and precautions should be taken that the stock of the bones which are piled did not spread any bad odour and foul smell.

3. The main grounds for revision in this case are :‑

(a) That the order of the learned Magistrate is against the facts on the file and against spirit of law.

(b) Whereas the learned Magistrate had observed that he agreed with the Health Officer to the extent that the factory should undertake measures to improve sanitary condition and on the instructions issued by the Health Officer which had been issued to factory, be had dismissed the complaint making an order for the removal of the defects mentioned in the above observations and, therefore, the order of the learned Magistrate was defective and against law.

4. The prosecution altogether examined four witnesses, Dr. M. A. Iqbal Ansari, Administrator Incharge of General Hospital, Lahore (P. W. 3), stated that he sent the report Exh. P. A. to the Medical Officer of Health for necessary action. That report does not appear to be on the file at the moment. The file that has been received from the lower Court does not include that report. He has, however, denied the suggestion that he wanted to appoint a medical officer for the Bone Crushing Factory, but the factory owners did not oblige him whereupon he got annoyed and made a report against them. The most important evidence is that of the Medical Officer of Health, Dr. A. H. Khokhar (P. W. 2), who stated that on 8th June 1964, Medical Superintendent sent a complaint about Bone Crushing Factory, Kot Lakhpat in which it had been complained that the factory did not have any proper arrangement for collecting the bones because of which the atmosphere remained dirty, which was detrimental to the health of the hospital staff as well as the patients. In addition he complained about the presence of stray dogs in large number which provided a threat of rabies to the residents of the vicinity. The Medical Officer of Health inspected the factory on 13‑6‑64 and found many defects regarding the arrangements of storing the bones etc. He referred to all these defects which he had mentioned in his letter addressed to the District Magistrate dated 13‑11‑65 (Exh. P. B.) and wherein he requested for immediate action of closing the factory under section 144, Cr. P. C. He also stated that immediately after his inspection, he served the factory with a notice on 22‑6‑64 and on 13‑7‑65 the factory gave a notice to the Corporation as the factory had been depositing the licence‑fee regularly, that they should be issued a licence which was replied to with the remarks on 18‑10‑65 that as the factory was not paying any attention to sanitary conditions and to the public health the licence could not be issued to the factory. He has been supported by Syed Maskeen Shah, Manager of Ittefaq Foundary. He has also stated that the arrangements of bones crushing in the factory were a big source of nuisance for the entire area as the bones not only polluted the atmosphere but also caused continuous illness of the labourers working in the Ittefaq Foundary as the files would bring and spread germs from the bones accumulated in stock in the factory.

5. The learned Magistrate examined the respondent N. A. Farooqi as well as Sh. Muhammad Hussain. Their standpoint was that the factory is quite an old concern and had been installed after obtaining due licence from the Corporation. He, however, did not refer to the allegations that the arrangements of collecting and stocking the bones were not proper inas much as nothing had been done by them to ensure that the bones did not spread any foul smell and the heaps of bones had been left uncovered. All that the Manager stated was that this section was procipitated by the owners of the Ittefaq Foundary who in collaboration with Dr. Ansari wanted to see this factory closed because of Ittefaq Foundary which was a very big concern had the intention of purchasing Bones Crushing Factory as a whole or the land on which the factory was situated in order to increase their assets. They, however, did not lead any defence.

6. I had inspected the spot on 8‑4‑67 and satisfied myself that the nuisance of stench, bad odour existed at the spot. I also contacted the hospital staff in the hospital and they all complained about the bad odour and stench of the bones that were source of great nuisance and inconvenience for the staff as well as the public. It thus stands proved beyond all shadow of doubt that the nuisance of stench an extremely bad odour, which had spread because of the heaps of bones lying in the factory all the times and absence of proper arrangements to store the bones and keep them covered, exists and consequently the menace of kites, vultures and stray dogs exists in the locality, when one of the main hospitals of Lahore (Lahore General Hospital, Kot Lakhpat) is situate. The learned Magistrate has said in his order that he agreed with the Medical Officer of Health to the extent that the factory should undertake measures to improve the sanitary conditions and act upon the instruction issued by the Medical Officer of Health. This means that the learned Magistrate was also convinced about the existence of nuisance and yet he proceeded to dismiss the case. As provided under section 133, Cr. P. C. when the Magistrate is satisfied 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 be regulated, then such Magistrate may make a conditional order requiring the person to remove such goods or merchandise or to regulate the keeping thereof on such manner as may be directed." Since the impugned order of the learned Magistrate is against the law especially when he was convinced that the nuisance did exist at the spot. I would recommend that it may be set aside.

7. I, therefore, refer this case to the High Court with the following recommendations under section 438, Cr. P. C. :‑

(a) The order of the learned Magistrate is against the requirements of law and, therefore, it may be set aside;

(b) Since it is proved that the nuisance of stench, bad odour, and consequently the accumulation of kites, vultures, and stray dogs exists due to the huge stocks of bones in the factory, for the storage of which there is no adequate arrangement and because of the fact that the city's one of the biggest hospital is situate only at a distance of about two furlongs from the Bone Crushing Factory's site, which nuisance is injurious to the health and physical comfort of the community in general and the staff and the patients in the hospital in particular the respondents may be ordered to remove the goods‑merchandise within a specified time to the satisfaction of Medical Officer of Health, so that the entire locality in general and the members of the Hospital in particular are saved of the consequent effects and dangers of the existing nuisance.

(Sd.)

15‑7-67. District Magistrate (A), Lahore.

Khawaja Muhammad Afzal for the State.

Ghulam Bari Saleemi for Respondents.

There is a bone crushing factory named "Crushing Pakistan Limited" near Railway Station Kot Lakhpat, Lahore, at a distance of about one furlong from Lahore General Hospital, Nurses Home and residential quarters. Doctor A. H. Khokhar, Medical Officer of Health, Lahore Municipal Corporation (P. W. 2), on 8th June 1964, sent a complaint to the Director Health Service, Lahore Region, Lahore, against the bone- crushing factory, alleging that the stench and bad odour that spread from the bones and the bone crushing etc. were great nuisance not only for factories situated around the Bone Crushing Factory, but also for the Staff of the Lahore General Hospital as well as the patients. He also made several other allegations. He prayed that the factory be closed under section 144, Cr. P. C. The Station House Officer, Ichhra decided that action could only be taken against the factory under section.133, Cr. P. C. and accordingly filed complaint Exh. P. A./1 against five persons, namely, Mr. N. A. Farooqi, Manager, Shiekh Muhammad Hussain, Mr. Liner, Mrs. Liner and Mr. Habday, partners in that factory, in the Court of Ilaqa Magistrate. This matter came up before the Magistrate on 26th January 1966 and he ordered that the respondents should be served for 8th February 1966. On that date only respondents Nos. 1 and 2 were present, while the others were absent. He directed that the remaining be summoned for 14th February 1966. On that date the Magistrate passed the order that the three respondents (absent on the previous hearing) were not present and that the proceedings should start and the P. Ws. be summoned for 5th March 1966. Thereafter the Magistrate recorded the evidence of the prosecution witnesses as well as that of the respondents Nos. 1 and 2 and passed the order to the effect that the allegations against the factory were not proved within the provisions of section 133, Cr. P. C. but only to the extent that the defect pointed out by the Medical Officer of the Health should be removed and the sanitary situation should be improved and precautions should be taken that the stock of the bones which was piled does not spread bad odour and foul smell. Against that order the District Magistrate (Additional), Lahore acting under section 438, Cr. P. C. made a reference to this Court, with the following recommendations:

(1) That the order of the learned Magistrate is against the requirements of law and, therefore, it may be set aside; and

(2) that since it is proved that the nuisance of stench, bad odour, and consequently the accumulation of kites, vultures, and stray dogs exists due to the huge stocks of bones in the factory, for the storage of which there is no adequate arrangement and because of the fact that the city's one of the biggest hospital is situate only at a distance of about two furlongs from the Bone Crushing Factory's site which nuisance is injurious to the health and Physical comfort of the community in general and the staff and the patients in the hospital in particular the respondents may be ordered to remove the goods‑merchandise within a specified time to the satisfaction of Medical Officer of Health, so that the entire locality in general and the members of the hospital in particular are saved of the consequent effects and dangers of the existing nuisance.

2. The learned counsel for the respondents argued that the proceedings before the learned Magistrate were illegal because the three respondents, namely, Mr. Liner, Mrs. Liner and Mr. Habday, who are also partners in the factory, were not summoned during the whole of the proceedings. From the record I find that the Magistrate on 14th February 1968 finding that the afore‑mentioned respondents were not present passed an order that the proceeding should start and the P. Ws. be summoned for 5th March 1968 and after that he started recording the prosecution evidence. There is nothing on the record to show that summons were ever issued to these three respondents and if so, whether they were served or not. From the perusal of the first three lines of the order of the learned Magistrate I find that the Magistrate was under the impression that the complaint was only against the two respondents, namely, Mr. N. A. Farooqi and Shiekh Muhammad Hussain and not against the other three respondents. This is factually incorrect as is evident from the complaint Exh. P. B./1 on the basis of which the proceedings were taken. The learned counsel for the respondents also contended that the learned Magistrate did not make a conditional order as required by subsection (1) of section 133, Cr. P. C., which reads as under:‑

"Whenever a District Magistrate, Sub‑Divisional Magistrate or a 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 any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, or from any public place, or 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

that any building . . . or structure . . . . . 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 . . . . , of such structure is necessary.

Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation . . . . . or owing, possession or controlling such building . . . . . structure . . . . within a time to be fixed in the order, to remove such obstruction or nuisance; or to desist from carrying on, . . . . . such trade or occupation; or ,

or, if he objects to do so, to .appear before himself or some other Magistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided."

Thus it will be seen that the order which could be made absolute according to sections 136, 137 and 139 of the Code of Criminal Procedure did not exist at all and the impugned order was made in utter disregard of the provisions of law and as such cannot be sustained. In case Hayat Gul v. Gul Zamir (P L D 1966 Pesh. 9), the same view was taken. ,

7. In the result the impugned order of the learned trial Magistrate dated 2nd August 1966 is hereby set aside. The reference is accepted to the above extent only.

S. Q.

Reference partly accepted.

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