BHAGAT RAM Vs. EMPEROR

JUDGEMENT

(1.) This is a reference from the Sessions Judge of Moradabad. We are now at 26th November 1928, and these proceedings have dragged along from 22nd December 1925, very nearly three years. This has been almost entirely due to the fact that the Joint Magistrate of Moradabad in February 1926, passed at the outset an order directing the opposite party to cease excavating and burning bricks and to fill up the existing pits, without taking the trouble to read the section under which he had to proceed. The result was that this Court set aside the proceedings, and a fresh notice had to issue. This notice was issued on the 1 April 1926, by Mr. Sayid Abu Mohamad, again a Magistrate of the First Class who did not take the trouble to see that the notice he issued conformed to the terms of one or other of the paragraphs in Section 133. The result of this omission of both Courts to be precise as to the law under which they were proceeding has led to much waste of time and trouble, and has also made it very difficult for us in this Court to know whether the orders eventually passed were such as we ought to uphold.

(2.) We do not propose to detail the whole of the subsequent procedure. The substance of the complaint against Mr. Bhagat Ram, a Civil Engineer, is that he having bought some land for the purposes of brick kilns just outside the municipal limits of Moradabad, proceeded to dig pits in the ordinary course of the trade or occupation of brick-making, and that those pits constituted a breeding ground of mosquitoes; and further that the smoke and the sparks from the chimneys constituted a nuisance and a danger. The Magistrate ordered the making of bricks to cease and the pits to be filled up. We have no information before us as to when the digging of the pits began, how much of the excavations had been made before the first notice was served on Mr. Bhagat Ram, and how much subsequently. But this latter matter would only concern this Court as influencing the exercise of discretion. We have first to make it clear under what paragraph of Section 133 these proceedings would apparently fall. There is no suggestion before us that any nuisance that may have occurred on: any way, river or channel which is or may be lawfully used by the public, or on any public place.

(3.) It is contended that the circumstances are covered by the second paragraph; that we have here a trade or occupation injurious to the health or physical comfort of the community. We have to see what order the Magistrate could pass in such circumstances. He could order the opposite party: to desist from carrying on, or to remove, or regulate in such manner as may be directed such trade or occupation.