LALMAN Vs. CHBISHAMBHAR NATH

JUDGEMENT

(1.) This matter comes before this Court in the form of a reference by the Sessions Judge of Farrukhabad. There is also an application in revision of that order on behalf of one Lalman. This Lalman, who owns property on both sides of the Fatehgarh-Farrukhabad road, within the limits of the Fatehgarh Municipality, has boon working a lime kiln on his land on the north-east side of the road for the last 45 years. According to the Municipal bye-laws, which were published in the Gazette of 15 September 1928, no person is allowed to burn lime within Municipal limits without a license from the Municipal Board. Lalman has obtained a license from year to year, and as far as the Municipal Board is concerned he is still authorized to conduct the business of burning lime on this site. One Bishambhar Nath, who occupies a house on the opposite side of the road, made a complaint to a Magistrate of the First Class under Section 133, Criminal P.C, in which he said that the working of this kiln is noxious to the health of the residents of the vicinity, and has been a cause of death of several persons in the vicinity, and is a public nuisance.

(2.) The Magistrate took proceedings on this complaint and passed an order directing Lalman to remove the lime kilns within 20 days and not to start them again on the present site. The Sessions Judge at first was of opinion that the Magistrate's order should be set aside mainly on the ground that it was an application by an individual on account of a private grievance. He subsequently modified that order and came to the conclusion that the Magistrate was entitled to order removal of the kiln; but he was of opinion that as the Health Officer of the Municipal Board had himself suggested the raising of a wall in front of the kiln, and was of opinion that if the wall were raised nobody would be discomforted, this Court should set aside the order of the Magistrate, but order Lalman to raise a wall seven foot high on the southern side of the kiln, and further order the Magistrate after that to see whether the kiln is still a nuisance to the public.

(3.) It is open to this Court on a reference of this nature to consider both the legality and the propriety of the order of the Magistrate. I have been asked on behalf of Lalman to consider in the first place that the order was passed without jurisdiction. I was referred to the first section of the Criminal Procedure Code by which it was enacted that the Code of 1898 would not affect any special or local law then in force; and it was argued that this restriction on the scope of the Cods should be held to cover the Municipalities Act, although that Act was passed after the Code. This view is based on a previous enactment, the N.W.P. Municipalities Act, 1883, but I am of opinion that there is nothing in that Act which could affect the Criminal Procedure Code in its relation to the p-resent Municipalities Act of the year 1916. But the Municipalities Act itself has given to the Municipal Boards control of all matters relating to public health within the Municipal limits; and this Municipal Board of Fatehgarh has passed bye-laws dealing with the management of what are known as noxious trades, and which include the burning of lime.