S SUJATHA Vs. A PREMA

JUDGEMENT

(1.) The nuisance sought to be removed by invoking Section 133 of the Code of Criminal Procedure is the nuisance caused by environmental pollution. Whether the onus of proof is on the party who alleges the nuisance or on the person who causes the alleged nuisance. It is the interesting question to be resolved.

(2.) Respondents are conducting a tyre reconditioning unit by name and style "City Tyres" in building 307 and 308 of Thiruvambady Ward in Alappuzha Municipality. The building is situated in a residential area. The building is very close to the residential house of petitioner. Contending that the Unit is functioning day in and day out and large number of tyres are melted in a very high temperature and strong chemicals are used for the said purpose. Petrol, Sulpher, Rubber and other chemicals are used without any precautionary measure and it causes serious health hazardous to the members of the family of the petitioner, she approached the Sub Divisional Magistrate, Alappuzha for an appropriate order to stop the functioning of the Unit. The Sub Divisional Magistrate addressed the Environmental Engineer, Kerala Pollution Control Board to conduct an inspection and offer remarks on the complaint. The Revenue Inspector was also directed to conduct an enquiry and submit a report. On the basis of the reports indicating that unit causes nuisance, the Sub Divisional Magistrate passed a conditional order under Section 133 of the Code of Criminal Procedure to stop the functioning of the unit. They were also directed to show cause why the conditional order shall not be made absolute. Respondents 1 and 2 filed an objection disputing the allegation of causing nuisance and contending that the boiler is provided with a Chimney having a height of 18 feet and is being operated in a completely enclosed room and the Unit is situated in a purely commercial area and the petitioner herself is conducting a flour mill where chilly and corriander powder are being produced in bulk quantities and there is a distance of more than three meters from the compound wall of the unit and the residential building and the Unit is functioning only from 9 A.M. to 6 P.M. and no melting process is being carried out and tread rubber is being purchased from outside and neither petrol nor sulpher is being used in the Unit and they have complied with all the necessary formalities for functioning the Unit and therefore the conditional order is to be vacated.

(3.) On the basis of the objection, the Sub Divisional Magistrate directed the Pollution Control Board to ascertain whether there is air and sound pollution as alleged by the petitioner and whether the boiler is being operated from a completely enclosed room with a chimney of 18 feet and whether it causes any nuisance and whether the process of melting rubber using sulpher and petrol is carried out in the Unit and whether the offensive odour, heat and noise generated by the process causes nuisance. Similarly the Village Officer was also directed to clarify whether the locality is a purely commercial area and whether the distance between the compound wall of the respondents and the residential house of the petitioner is having a distance of more than three metres and whether there is offensive smell and noise creating nuisance to the neighbours. On the basis of the directions, the Environmental Engineer submitted a report after inspection stating that there is inadequate space between the Unit and the residence of the petitioner and the direction given by the Pollution Control Board were not implemented by respondents and consent as provided under Air Act was refused by the Board to respondents and the only solution to solve the problem is to shift the Unit to a suitable place. The Sub Divisional Magistrate on the basis of the materials available, holding that even after giving ample opportunities respondents failed to adduce evidence or to prove that satisfactory Air Pollution Control measures as stipulated by the Pollution Control Board were taken, made the conditional order absolute under Section 138 (2) of the Code of Criminal Procedure. Respondents challenged that order before the Sessions Court, in Crl.R.P.3/2000. The learned Additional Sessions Judge holding that it is for the petitioner to adduce evidence in support of the claim that there is nuisance, set aside the order of the Sub Divisional Magistrate and remitted the case back to the Sub Divisional Magistrate for fresh disposal after complying with the mandatory provisions of the Code. This petition is filed under Section 482 of the Code challenging that order. Petitioner contended that the learned Additional Sessions Judge failed to consider the fact that the onus of proof is on the respondents to show that the functioning of the Unit does not cause any air pollution or nuisance and the burden was wrongly cast on the petitioner and though Sub Divisional magistrate properly appreciated the facts, the order was set aside without any basis and therefore the order of the learned Sessions Judge has to be quashed.