KIRORI MAL BISHAMBAR DAYAL Vs. STATE

JUDGEMENT

(1.) THIS petition raises the question whether the Courts below were justified in convicting the petitioner under Section 290 of the Penal Code.

(2.) TWENTY or twentyfive years ago an enterprising business-man of Rewari set up a factory in the outskirts of the town at a considerable distance from the houses of people. The factory continued working as a flour-mill for many years, but a short time ago it was converted into a metal factory and was used almost exclusively for the manufacture of brass utensils. In the year 1953 some of the owners and occupiers of residential buildings which have sprung up in the vicinity of the factory complained that the noise caused by the factory interfered unreasonably with the comfort and enjoyment of private property, that the vibrations caused by the heavy machinery were shattering the foundations of their buildings and that the smoke emitted by the chimneys was contaminating the general atmosphere. The trial Court convicted the petitioner under Section 290 of the Penal Code and sentenced him to pay a fine of Rs. 50/ -. The order of the trial Court was upheld by the learned District Magistrate in appeal and the petitioner has now come to this court in revision.

(3.) THE first point for decision in the present case is whether the existence arid working of the flour-mill is or is not a nuisance, My attention has been invited to punjaji Bapuji Bagul v. Emperor, AIR 1935 Bom. 164 (A), in which it was held that a person is at liberty to install an oil engine on his own property and to work it in any way he chooses and that as damage, if any, cannot be said to be caused by unlawful means he cannot be convicted of mischief. This authority does not lay down the proposition that the owner of an oil engine cannot be convicted under section 290 if the working of the engine is a source of injury or annoyance to the members of public.