EMPEROR Vs. FAKIRMAHOMED CURRIMJI LALJI SAJAN

JUDGEMENT

(1.) This is an appeal by the Government of the Province of Bombay against the order of acquittal passed by the Presidency Magistrate, 19th Court, Eslpanade, Bombay, acquitting the opponent under Section 9(7) of the Bombay Smoke Nuisance Act of 1912 for breach of Rule 26 of the Rules under that Act. It is alleged that in contravention of the provisions of the rule the chimney of the opponent s hotel emitted smoke at the lower altitude than that permitted by the law, on February 10, 13, and 10, 1948, between certain hours as specified in the complaint.

(2.) The opponent, who was the accused before the lower Court, is the proprietor of Pyrke s Apollo Hotel situated in a building known as Bright Land on the Lausdowne Road, Apollo Bunder. On the first floor of that building is the kitchen of the hotel, which is about 12 feet from the ground. In that kitchen there is a cooking range with ovens, and in order to allow the smoke coming up from the ovens to go out there was a chimney about 62 feet high from the firing floor level. This chimney has been in existence for several years. In the month of May 1947, and again in the month of June 1947, Mr. Patel, who lives in a building adjoining, complained to the smoke nuisance authorities about the nuisance arising from emission of smoke from the chimney belonging to the opponent. On investigation, the Smoke Nuisance Inspector served a requisition on the opponent-accused to raise the height of the chimney to 88 feet from the firing floor level. This notice was served on the accused on July 9, 1947. Thereupon there was a protracted correspondence between the smoke nuisance department and the accused, in which the accused raised several objections to the compliance with the notice issued to him by the Inspector. Among the objections that were then taken were the contention that the oven from which the smoke was emitted was not a furnace within the meaning of the Act, that the chimney was in existence for a long time, that lie was not bound to raise the height of it, as he was only a lessee of the building, that it was the landlord who should have been called upon to raise the height of the chimney, that the smoke nuisance department should furnish the accused with details of the registration of the chimney, when it was originally constructed, and so on. He also asked for the matter being placed before the Smoke Nuisance Commission and for their orders being obtained in the matter. Eventually the matter was placed before the Smoke Nuisance Commission, and the Inspector of Steam Boilers and Smoke Nuisance informed the accused on September 29, 1947, that the Commission had approved of the notice issued to him on July 9, 1947, and advised the accused that failing compliance with the instructions he would be prosecuted under. 26 of the Bombay Smoke Nusiance Rules. The Inspector further informed the accused that there was no record of the chimney being registered in the name of the Pyrke s Hotel after the hotel was transferred from its original building on the other side of the road to the building where it is now located. The two letters, exhs. Nos. C and G dated July 9, 1947, and January 29, 1948, respectively gave the statutory warning, the details of which were attached to the notice exh. No. G. The Inspector requested the accused to comply with the requirements of the department within the time limit stipulated by the Board. Eventually a complaint was lodged against the accused on March 8, 1948. Even before the proceedings commenced, it appears that the learned Magistrate tried to see whether a settlement could be brought about by raising the chimney to a certain height. The accused agreed to increase the height by about 10 feet, but, as this was not a proper compliance with the requirements of the law and the notice served upon the accused, the prosecution proceeded. The accused, in addition to raising contentions based on the interpretation of the Act and the rules, led evidence to show that, in accordance with the advice, which he had received from one or two architects, it would have been positively dangerous to construct a chimney to the height required by the department, and that the building might not be able to support the weight of a chimney of the height required. The learned Magistrate on a consideration of the evidence came to the conclusion that in view of the evidence led by the defence

(3.) It was argued by the learned Advocate General, who appeared in support of the appeal, that the learned Magistrate had, entirely misconceived the real nature of the charge brought against the accused. He argued that the charge against the accused was not of breach of the order issued by the Inspector of Smoke Nuisance with the sanction of the Smoke Nuisance Commission, but that the charge against him was of non-compliance with the requirements of Rule 26 of the Smoke Nuisance Rules. We think that this submission must be accepted. Under Section 8 of the Act :