CHERRY HOSIERY MILLS LTD Vs. S K GHOSE

JUDGEMENT

(1.) This is an application under the Bengal Smoke Nuisances Act (Act III of 1905). The preamble of the Act states that it is

(2.) The facts in this case are briefly as follows: The petitioner is a Limited Company which has been carrying on the business of manufacturing Hosiery goods since 1952. For the said purpose, it has acquired approximately three bighas of land at premises No. 21 Srinath Mukherjee Lane, Dum Dum in the suburbs of Calcutta. In the said premises, the Company has constructed four ovens. It is stated in the petition that the ovens are each two feet in diameter and fifteen inches in height, and are intended to burn soft coke and charcoal in order to boil and clean hosiery fabrics. It is claimed that of these four ovens, only two are in commission and the smoke emanating therefrom is absolutely negligible and even when fully charged, the smoke coming out from the two ovens is much less than even ordinary domestic ovens used for cooking purposes. It is therefore submitted that the use of the ovens creates no nuisance at all and they do not come within the ambit of the said Act. On the Goth August 1955, a letter was written by the Chief Inspector and Secretary, smoke nuisance Directorate to the managing director of the petitioner company, a copy whereof is annexure 'A' to the petition. It was pointed out therein that under the said Act, it was provided that every person who intended either to construct, re-construct, alter or add to a furnace flue or chimney within the area specified under the said Act, must make an application with a detailed and fully-dimensioned working plan, together with a statement of the type of fuel to ho used in each furnace, for the approval of the Commission constituted under the Act. It was stated that a report had been received that the petitioner company had wrongfully constructed certain furnaces and flues within the area in which the Act was enforced, and was wrongfully using them, rendering itself liable for daily and other penalties provided under the Act. Without prejudice to any action that the Commission might take in respect of the said offences, it was requested that the Company should at once submit working plans in duplicate, together with the necessary fees, for approval of the Commission. On the 30th August 1955, the Managing Agents of the petitioner Company wrote back to say that it had only four small ovens where soft coke was burnt for boiling and cleaning hosiery fabrics, and so there was no smoke at all, and, that being the position, the steps suggested were not required to be taken. The answer is contained in a letter dated the 6th September 1955, written by the Chief Inspector of Smoke Nuisances, the effect that the ovens used by the Company came within the definition of "furnace" as used in the said Act and, therefore, there must be approval and sanction by the Commission before the ovens were put to use. In September 1955, it seems that working plans in duplicate were filed. By his letter dated the 19th December 1955, the Chief Inspector of Smoke Nuisances intimated to the Company that the plans as approved were being forwarded and that the approved dimensions and the approved fuel must be strictly adhered to. It was further pointed out that tho chimney shown in the approved plan should be offered for inspection before erection, and there should be final inspection when the erection had been completed, without which, permission would not be granted to use the chimney. On the 24th January 1956, there was further communication from the Inspector of Smoke Nuisances that the chimney shown in the approved plan had not been constructed, so that the furnaces should not be used until the matter had been regularised. Instead of conforming to the approved plan and carrying out the directions given by the Chief Inspector of Smoke Nuisances, the Company started correspondence stating that the ovens were really not nuisances, emanating very little smoke, and the contention was put forward for the first time that there were a number of hosiery mills in the same locality using similar ovens and similar fuel was being used by them for burning in the said ovens and none of them had a single chimney. It was next urged that the business was a mere cottage industry and the setting up of the chimney was generally resisted. This is a view that has not been accepted by the Smoke Nuisances Directorate and as the respondents threatened to take steps against the petitioner, this application has been made.

(3.) Before I proceed to indicate the points of law taken by Mr. Roy appearing on behalf of the petitioner, I must refer to the scheme of the Act and some of the provisions contained therein. As I have stated above, the Act is intended to abate nuisances arising from the smoke of furnaces and fire places in the towns and suburbs of Calcutta and Howrah. Provision has been made empowering the State Government to extend the operation of the Act beyond that limit (Section 2). The definition section (Section 3) which defines the word "Furnace" is very important and the relevant part is set out below :