Kanak Kr And Ashok Kr. v. Corporation Of Calcutta — 1968 DIGILAW 109 (CAL)

JUDGMENT 1. THIS Rule is against an order dated 20.12.67 passed by Shri A. K. Datta, senior Municipal Magistrate, Calcutta in case No. 4a/66, directing the petitioners, M/s. Kanak Kumar and Ashok kumar and R. L. Chopra to remove the cork-grinding factory in dispute from the present site at premises Np. 20/a, Meher Ali Mondal Street, Calcutta to some other suitable and appropriate place within six months from the date, in default whereof the commissioner, Corporation of Calcutta is to apply to get the said disputed factory removed from the present site. 2. THE petitioner No. 1, is a firm, carrying on the business of a crokgrinding factory under the name and style of M/s. Kanak Kumar and Ashok kumar at presimses No. 201 A, Meher ali Mondal Street, Calcutta, havnig a licence (Ext. A) for professions, trades and callings granted by the Corporation of Calcutta under section 218 of the Calcutta Municipal Act, 1951, as also a licence (Ext. C) under the West bengal Fire Services Act, 1950. The petitioner No. 2 is the proprietor of the said firm. The facts leading on to the present Rule are that the opposite-party the Corporation of Calcutta, filed an application under section 583 of the calcutta Municipal Act, 1951 through its sanitary inspector, S. R. Ghosh, on 12.9.66 against (a) the Central Bank of India Limited, (b) Ghourmull marwari (landlords), (c) M/ s. Kanak Kumar and Ashok Kumar and (d) Shri r. L. Chopra (occupier), alleging that sound and dust nuisances were being committed by the petitioners in course of running the said crok-grinding factory, without any licence under section 437 (1) (b) of the Calcutta Municipal act, 1951 and that the local residents were complaining against the said factory due to the nuisance which was being created, affecting their health and comfort. Upon the aforesaid averments, proceedings were started under section 583 of the Calcutta Municipal act, 1951, before Shri A. K. Datta, Senior Municipal Magistrate, Calcutta, against the petitioners and two others. Upon the aforesaid averments, proceedings were started under section 583 of the Calcutta Municipal act, 1951, before Shri A. K. Datta, Senior Municipal Magistrate, Calcutta, against the petitioners and two others. The defence case inter alia is that the petitioners are not guilty; that there was no nuisance as alleged or at all either in the shape of sound or of dust, caused by the factory in question ; that the factory was situated in an area which is a mixed locality, consisting of several factories, shops and other establishments ; that even if there was any nuisance, the same was capable of being abated ; and that the entire case was due to the machinations of some interested persons including one Kulwant Ray (P. W. 5), who wanted to get into the premises in question but having failed therein was inimically disposed towards the petitioners. The landlord, Ghourmull Marwari, the opposite-party No. 2 in the court below in fact filed a written statement fully supporting the petitioner's case and he also deposed in the case as 3. THE first party, Corporation of calcutta, examined 8 witnesses in this case besides proving some exihibits including a sketch-plan (Ext. 4/1) by the Pleader Commissioner and the opposite-party also examined four witnesses to prove their case. There is also on the records a memorandum of personal inspection held on 1.8.67 in the presence of both the parties, by the senior Municipal Magistrate, holding inter alia that "as is natural, each of the machines when in operation by electricity creates some sound and vibration. If all the three machines are operated together, there would naturally be a good deal of sound and vibration. " The previous Sanitary Officer, Dr. B. C. Mukherjee, the District health Officer and the Deputy Chairman, Health Committee, Corporation of calcutta, also inspected the premises but they were not examined by the first party in this case. As a result of the enquiry, the Senior Municipal Magistrate, Calcutta by his order dated 20.12.67 held that there is nuisance within the meaning of section 583 of the Calcutta Municipal Act, 1951 and in that view ordered the present two petitioners to remove the crok-grinding factory from its present site within six months from the date of the order. It is the said order that has been impugned by the petitioners and forms the subject-matter of the present Rule. 4. MR. It is the said order that has been impugned by the petitioners and forms the subject-matter of the present Rule. 4. MR. Jaharlal Roy, Advocate, appearing on behalf of the petitioners, has raised several points, procedural as well as on merits. In support of his objection to the manner and nature of the initiation of the proceedings and the legality thereof, Mr. Roy has contended in the first place that the present proceedings have been initiated by Shri S. N. Ghosh, Sanitary Officer, corporation of Calcutta and that the said Sanitary Officer is not the Corporation within the meaning of section 7 of the Calcutta Municipal Act, 1951. He is neither one of the 76 Councilors nor any one of the 5 Aldermen and certainly has no common seal. According to Mr. Roy, even if it be deemed that the complainant is the Corporation of Calcutta still then he has no common seal and the resultant proceedings are bad in law and without jurisdiction. The next point taken by Mr. Roy in this context is the effect upon the present case of the proceedings under section 133 of the Code of Criminal procedure instituted for the removal of the purported nuisance and the ultimate order (Ext. B) passed therein by shri S. P. Ganguly, Magistrate 1st Class, alipore viz., that "proceedings u/s. 133, cr. P. C. is accordingly dropped. This matter stands disposed of and it be filed. " The two other points taken by Mr. Roy in this context are the effect of the issue of a licence by the Corporation of Calcutta to the accused under section 218 of the Calcutta Municipal act, 1951 as also of the non-examination of some material witnesses, namely, the previous Sanitary Officer, the district Health Officer and the Deputy chairman, Health Committee, who all inspected the premises before the filing of the present case. On merits, the submission of Mr. Roy are again twofold. In the first instance, he has contended that there has been no proper determination of the factum of nuisance vis-a-vis the nature and the position of the locality. In the second place, Mr. On merits, the submission of Mr. Roy are again twofold. In the first instance, he has contended that there has been no proper determination of the factum of nuisance vis-a-vis the nature and the position of the locality. In the second place, Mr. Roy contended that even if it was held that there was nuisance, there should have been an attempt to abate or prevent or remedy the same in the first place, as enjoined under section 583 (2) of the Calcutta Municipal Act, 1951, before directing the removal of the entire factory from the site in question and thereby closing down the whole business. Mr. Sunil kumar Basu, Advocate, appearing on behalf of the opposite-party, the Corporation of Calcutta, has submitted that the contentions raised by Mr. Roy relating to the initiation of the proceeding and also the procedure adopted, are more technical than real and upon ultimate analysis are not tenable. With regard to the other two points rasied on behalf of the petitioners relating to the factum of nuisance, if any, and to its abatement in the first place, Mr. Basu has submitted that the evidence on record clearly establishes such nuisance and apart from the absence of any specific prayer on behalf of the petitioners for such an abatement the same is not also capable of being carried out in view of the nature of the nuisance. Mr. Birendranath banerjee, Advocate, appearing on behalf of the State has fairly submitted that in view of the facts and circumstances of the case and the evidence on record, the avenues of any possible abatement should be explored. I will now proceed to consider the contentions raised by the learned counsel appearing on behalf of the different parties in the light of the evidence on record as also the documents proved in this case. 5. THERE is really no defect in the initiation of the case or in the filing of the complaint and in this connection a reference may be made to the provisions of section 24 (1) and 28 of the calcutta Municipal Act, 1951. 5. THERE is really no defect in the initiation of the case or in the filing of the complaint and in this connection a reference may be made to the provisions of section 24 (1) and 28 of the calcutta Municipal Act, 1951. The general powers of the Corporation of calcutta are laid down in section 24 and section 28 provides that "subject to the provisions of this Act and of any rules, Bye-laws and regulations made thereunder, the entire executive power for the purpose of carrying out the provisions of this Act shall be vested in the Commissioner". In this particular case the Commissioner has in fact signed the complaint on 14.9.66 and as such there is a due compliance with the provisions referred to above. I may refer in this connection to a decision by Chief Justice Harries and Mr. Justice J. P. Mitter in the case of (1)The King v. Nagendra Nath Bhowmick and others, reported in 54 cwn page 160. Chief Justice Harries delivering the judgment observed at page 162 that the Corporation "is a body that can receive notice but like all bodies corporate it can only receive notice through its proper agents. A body corporate has no physical existence and as one writer states - it has :no body to be kicked or soul to be damned". There is no substance in the other point taken by Mr. Roy that even if the complaint be deemed to have been filed by the Corporation of calcutta still it would be defective because of the absence of any common seal. Such a common seal will not be required when there is a delegation or the vesting of the executive powers in the Commissioner, who has undoubtedly signed the petition of complaint. The next submission of Mr. Roy arising out of the order (Ext. B) that was passed by Shri S. P. Ganguly, Magistrate 1st Class, Alipore dropping the proceedings under section 133 of the code of Criminal Procedure initiated for the removal of the nuisance is also not tenable. The said order cannot affect the initiation of the present proceedings under section 583 of the Calcutta Municipal Act because the proceedings are entirely different in nature and the relief that may be granted is also quite different and there is no bar in law to such an initiation. The said order cannot affect the initiation of the present proceedings under section 583 of the Calcutta Municipal Act because the proceedings are entirely different in nature and the relief that may be granted is also quite different and there is no bar in law to such an initiation. The argument based on the granting of a trade or profession licence under section 218 of the Calcutta Municipal act, 1951, is again not maintainable. The grant of such a licence is without any prejudice to the rights of the Corporation of Calcutta to proceed under section 437 (1) (b) of the said Act. The very proviso under section 218 (1) lays down that the grant of such a licence shall not be deemed to affect the liability of the licence to take out a licence under any other section of this Act. The only other point that remains to be considered, under the first branch of Mr. Roy's submissions is the puported failure on the part of the Municipal Magistrate to draw the necessary adverse presumption under section 114 (g) of the Indian evidence Act from the non-examination by the prosecution of the previous sanitary Officer, the District Health officer and the Deputy Chairman, health Committee, Corporation of Calcutta who had inspected the premises immediately before the launching of this prosecution. This submission is again based upon a misconception and the presumption available to the court under section 114 (g) of the Indian Evidence Act does not extend to such a limit. Apart from the fact that the prosecution need not examine all the witnesses in this case, so far as the previous Sanitary Officer is concerned he was clearly not available as he had already retired. The Corporation had already examined no less than eight witnesses in this case from the locality including the present Sanitary Officer, a doctor, a practising Advocate and the officer in charge of the Bhukailash properties and the quantum of the evidence cannot do duty for quality. 6. ALL the submissions made by Mr. Jaharlal Roy, Advocate in support of the first branch of his contention relating to the purported defect in the initiation of the present proceedings and the procedure adopted, therefore fail. I will now deal with the twofold submission advanced by Mr. Jaharlal Roy on the merits of the case. In this context Mr. 6. ALL the submissions made by Mr. Jaharlal Roy, Advocate in support of the first branch of his contention relating to the purported defect in the initiation of the present proceedings and the procedure adopted, therefore fail. I will now deal with the twofold submission advanced by Mr. Jaharlal Roy on the merits of the case. In this context Mr. Roy has contended in the first place that the evidence on record does not establish beyond reasonable doubt the factum of nuisance as alleged and that in any event, for a proper determination of the said question, it is expedient in the interests of justice that the lie and nature of the locality as also the type of the residents are to be taken into consideration. The failure to do that by the Senior municipal Magistrate has resulted in a failure of justice. 7. ON the question of the factum of nuisance, the prosecution has examined eight witnesses, besides proving the Pleader Commissioner's report (Ext. 4) and the accompanying sketch-plan (Ext. 4 (1 ). The Senior Municipal Magistrate himself had thereafter visited the locality and the memorandum of his personal inspection held on 1.8.67 is also on the record. The approach, however, for determining the question of nuisance has been wrong. Nuisance is a mixed concept - partly subjective and partly objective. What is nuisance to one may not be nuisance to another and what again may appear to be repugnant to one class, may not be so to another. In short, it is a relative term, depending entirely upon the environment, taste, habit and the standard of living of the residents. It is observed by philosophers that noise is a sign of civilisation. Upon ultimate analysis there must always be some noise which is the price we have to pay for progress. It will accordingly be impossible to eliminate all noise and smell in a Welfare State and absolute and undisturbed peace may well be the peace of the grave-yard : The incidence of nuisance is therefore to be projected on a bigger canvas and approached from broader stand-points, which are but the concomitants of an industrial age, before one can arrive at a just and proper determination thereof. It has truly been observed by Mr. Justice M' Cardie that "all law must progress or it must perish in the esteem of man". It has truly been observed by Mr. Justice M' Cardie that "all law must progress or it must perish in the esteem of man". With the progress of civilization, the concept of law and its outer periphery must extend so that it may keep pace with the mounting needs of the society. True it is that the concept of nuisance is defined in section 5 (50) of the Calcutta Municipal act, 1951, but for properly appreciating the incidence thereof, one may well let in other lights, which far from interfering with the basic concept of nuisance under the Calcutta Municipal act, only pin-point some of its dominant features. In his Law of Torts, salmond has observed that "the generic conception involved in nuisance may, however, perhaps be found in the fact that all nuisances are caused by an act or omission". The basis of the law of nuisance according to Chief Justice brain is "the maxim Sic utere to at alienum non laedas : a man must not make such use of his property as unreasonably and unnecessarily to cause inconvenience to his neighbour". For determining the correct yardstick to fathom the existence of nuisance, a reference may be made to a line of cases on the point. In (2) Colls, appellant v. Home and Colonial Stores Limited, respondents, reported in (1904) Appeal cases, page 179, Lord Chancellor Earl of Halsbury observed at page 185 of the said report that the tests "depend upon the surroundings and circumstances". His Lordship further held that "what may be called the uncertainty of the test, may also be described as its elasticity. A dweller in towns cannot expect to have as pure air, as free from smoke, smell and noise as if he lives in the country, and distant from other dwellings and yet an excess of smoke, smell and noise may give a cause of action but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action". In the case of (3)Polsue and Alfieri Limited, appellant v. Rushmer, respondent, reported in (1907) Appeal Cases, page 121, the house of Lords approved of "the doctrine of the local standard of comfort", as also the observations of Lord halsbury in the case of (2) Colls v. Home and Colonial Stores Limited, (supra), and held at page 123 that "the law of nuisance undoubtedly is elastic". In this context, a reference may be made to the case of (4) Sturges v. Bridgman, reported in (1879) 11 Chancery Division, page 852. Lord Justice Thesiger, delivering the judgment of the court, observed at page 865 that "whether anything is a nuisnce or not is a question to be determined not merely by an abstract consideration of the thing itself, but in reference to its circumstances : what would be a nuisance in belgrave Square would not necessarily" be so in Bermondsey". A further reference may be made to the case of (5) Fishenden v. Higgs, reported in (1935) 153 LT at page 140, wherein lord Justice Romer aptly observed that "a reasonable person would not expect precisely as much light in May-fair as he would get in the country, and he would not expect precisely so much light in the City of London as he would get in Mayfair. " In a recent decision by the Calcutta High Court the said principles have been approved of. In the case of (6) Ram Palat Shaw, petitioner v. Corporation of Calcutta, opposite party, reported in AIR 1966, calcutta, page 99, Mr. Justice S. K. Niyogi referred to and approved of the observations made in the case of (4)Sturges v. Bridgman, (supra) as referred to above and held at page 100 of the said judgment that "so, in considering the question of nuisance the magistrate should have applied his mind to the nature of the locality". I agree with the principles laid down in the abovementioned cases and hold that the Sine Qua Non of any finding of nuisance is the lie and nature of the locality - whether it can be called a factory area or a residential quarter or a mixed locality- and to determine the effect thereof, upon the question of the existence of any purported nuisance. A court of law is also a court of justice and any finding arrived at by it overlooking this material factor, would be an improper one. I therefore agree with the submissions of Mr. "jaharlal Roy made in this behalf and i hold that the finding arrived at by the Senior Municipal Magistrate, Calcutta about purported nuisance is a finding which has been vitiated by this non-consideration. 8. THE next point that has been stressed emphatically on behalf of the petitioners is the question of abatement of nuisance, even if any, before any direction be passed by the Municipal Magistrate for the removal of the entire factory. The contentions raised by Mr. Roy in this context have got considerable force behind the same. The concept of abatement of nuisance before removing the same entirely, is one which is as old as the hills. Salmond while elaborating his dichotomy of nuisance has observed that "the earliest remedies for nuisance were the Assize of Nuisance and the Writ of Quod permitett prosternere to authorise the plaintiff to abate the nuisnce. " The position in law in this country or in this State is substantially the same. Before referring to any case law on the point, a reference may be made to the provisions as contained in section 583 of the Calcutta Municipal Act, 1951. The legislature, in its wisdom, has enjoined therein that when the magistrate upon such enquiry as he thinks necessary, finds that there is the existence of nuisance, may direct the person responsible for such nuisance or the owner of the premises to take such measures as to the said magistrate may seem practicable and reasonable "for abating, preventing, removing or remedying such nuisance". It would therefore appear that the intention of the legislature is that the nuisnce, if any, must be sought to be abated in the first instance before the court should proceed to direct its removal, lock stock and barrel. Upon a balance of convenience also, such an order, if passed without any consideration of the question of abatement, will be untenable and unfair. In a Welfare state, it is the duty of the court to interpret such laws in the light of the requirements of the society. Upon a balance of convenience also, such an order, if passed without any consideration of the question of abatement, will be untenable and unfair. In a Welfare state, it is the duty of the court to interpret such laws in the light of the requirements of the society. More so, when under Article 19 (1) (g) of the constitution of India, the fundamental, rights of the citizens have been guaranteed to carry on any occupation, trade; or business subject of course to the: bounds of law. The avenues of abatement must ex Debito Justitae be explored before the right of a citizen to carry on his trade is tinkered with on the ground of nuisance. I therefore hold in this case that the failure to do the same has resulted in a failure of justice. Mr. Sunil Kumar Basu, Advocate, appearing on behalf of the Corporation of Calcutta, at one stage argued that there being no specific prayer for abatement made on behalf of the petitioners in this behalf, the court below has not erred in not considering about the same. I do not agree with this contention of Mr. Basu, Apari from the fact that the legislature underlines the necessity for abating the nuisance in the first place, the Senior municipal Magistrate has also considered the same in his judgment but the ratio decidendi of the same are unsustainable upon ultimate analysis. It has been found by him that the principle laid down in the decisions that before directing the removal of a nuisance, an order for abatement thereof should be made, cannot apply to the instant case because so long as the factory would exist in its place and operate its business, the nuisance will also emanats out of it and as such there can be no question of abatement. This approach is wholly wrong and inequitably and unreasonably rules out a fresh consideration of the extent of nuisance, if any, after measures are taken for the abatement of the existing nuisance. It is this abated position that really matters and is the Sine Qua Non before the court should proceed any further under section 583 of the Calcutta municipal Act, 1951, to remove the nuisance. More so, in cases of industrial establishments. It is this abated position that really matters and is the Sine Qua Non before the court should proceed any further under section 583 of the Calcutta municipal Act, 1951, to remove the nuisance. More so, in cases of industrial establishments. In this connection a reference may be made to an unreported decision dated 17.8.49 in (7) Criminal revision Case No. 1065 of 1948 (Corporation of Calcutta, petitioner v A. C. Dhar and another, opposite parties)wherein Mr. Justice A. N. Sen held that the magistrate in the court below had not taken sufficient evidence on the point as regards the means of abating the nuisance and in that view of the matter, the order of the magistrate was set aside, giving direction as to how the nuisance caused by the noise of the bucket factory, which formed the subject-matter of the case, should be abated. In the case of (8) A. C. Dhar v. Dhananjoy Das and Corporation of Calcutta, reported in 87 Calcutta Law journal, page 188 Mr. Justice Chunder referred to the order dated 17.8.49 passed by Mr. Justice Sen, at an earlier stage of the said case, sending back the matter "for further consideration of the steps to be taken to abate the nuisance. " In another decision dated 22.12.65 in (9) Criminal Revision Case no. 1478 of 1955 (Shew Sankar and another, petitioners v. Ramnath Shaw and another, opposite parties), Mr. Justice debabrata Mukherjee held that "the words of section 583 are, to my mind, quite clear and they leave a wide discretion to the magistrate to direct such steps as he might feel advised to do to be taken either for the purpose of abating the nuisance or for preventing or remedying the same" and in that view he remanded the case to the court below for consideration on the question of abatement of the nuisance. In a recent decision in the case of (6) Ram palat Shaw v. Corporation of Calcutta, (supra), Mr. Justice S. K. Niyogi agreed with the said principles and observed at page 100 that the trying magistrate should in the first instance find out as to "whether it was possible to take any such step for the abatement of the nuisance before proceeding to give that drastic order for the removal of the nuisance". Justice S. K. Niyogi agreed with the said principles and observed at page 100 that the trying magistrate should in the first instance find out as to "whether it was possible to take any such step for the abatement of the nuisance before proceeding to give that drastic order for the removal of the nuisance". I fully agree with the principles laid down in the above mentioned cases and I hold that the failure on the part of the Senior Municipal Magistrate to have explored the avenues of abatement before directing the removal of the entire factory, has been bad in law and improper and has resulted in a failure of justice. Accordingly, the submissions, made by Mr. Roy in this respect, succeed. The judgment passed by the senior Municipal Magistrate is also not sustainable on another ground. It gives wide berth to a much-needed consideration of some essential points, arising out of the facts and circumstances of the case. It suffers from some imperfect premises, wrong consideration and even non-consideration and I will proceed to catalogue the same. In the first place, the court below has neither referred to nor considered a material part of the evidence of D. W. 1, R. L. Chopra, the sole proprietor of the firm of Mjs. Kanak Kumar and ashok Kumar, to the effect that the locality is an industrial area and that near the said factory there are one motor vehicles repairing workshop on the same street, one steel and allied products on Hossain Shah Road and the indian Oxygen Limited on the mayur-bhanj Road. There is again neither any consideration of the effect of the dropping of the proceedings under section 133 of the code of Criminal Procedure by the Magistrate at Alipore at least on the question of abatement of nuisance in the present case nor any cosideration of the evidence of D. W. 3, shew Dayal Gupta as to the nature of the locality that there are many other factories in the same locality namely, the Indian Oxygen factory, the workshop of the balmer Lawrie and Company, the workshop of the Steel Allied company and a printing press run by electricity, all close to the factory of m/s. Kanak Kumar and Ashok Kumar. The said evidence has been brushed aside merely on the ground that the witness is interested. The said evidence has been brushed aside merely on the ground that the witness is interested. One also looks in vain for a relevant consideration, in this context, of item No. 8 of the report (Ext. 4) submitted by the Pleader commissioner (P. W. 8) wherein it has been stated inter alia that "on the southern flank of the said street there are residential quarters as well as non-residential quarters" and that "the adjoining western side is mainly used for non-residental purposes. There is a big market, hotel and shops". The sketch-plan (Ext, 4/1) submitted by the witness in this connection also supports of a hired witness". The said witness is a B. E. of the Calcutta University and a member of the Institute of Engineers besides being a retired city architect of the Corporation of calcutta. Instead of ruling out the person, the court below could have ruled out his evidence on merits. It is also passing strange as to how a pleader Commissioner (P. W. 8), by whichever party he might have been called, could be considered to be an expert on sound and dust nuisances, which are highly technical subjects requiring expert consideration. Lastly, the Senior municipal Magistrate has misinterpreted and misunderstood the scope of a personal inspection of the locality held after both the parties have closed their evidence. He has not only approved of the sketch-plan filed by the Pleader Commissioner in specific terms but also admitted that at the locale he consulted the same. The municipal Magistrate has further stated in his memorandum that the factories as were mentioned by the defence side in evidence are really far away from the locality. It is unfortunate that the Senior Municipal Magistrate has proceeded so. He cannot import into the case any fact which he has himself observed as that would be introducing evidence not tested by cross-examination. A reference in this connection may be made to the case of (10) Pritam Singh and another, appellants v. The State of Punjab, respondent, reported in AIR 1956 SC page 415. Mr. Justice Bhagwati, who delivered the judgment of the court, observed at page 425 that the court is certainly not entitled to substitute its view and observations in the place of evidence which could be tested by cross-examination. Mr. Justice Bhagwati, who delivered the judgment of the court, observed at page 425 that the court is certainly not entitled to substitute its view and observations in the place of evidence which could be tested by cross-examination. The above considerations go to the very roots of the case and affect the basis of the ultimate order that was passed. 9. FOR the reasons stated above, i hold that the case must go back to the court below for applying its mind, in the first instance, to find out the nature of the locality - whether it can be called a factory area or a residential quarter or a mixed locality - and then to proceed to determine the effect thereof upon the question of the purported nuisance ; and secondly, for addressing itself to the question of abatement of the nuisance, even if any, before giving any directions for the removal of the same lock, stock and barrel. In view of the order that is going to be passed, I do not make any observations about the merits of the case. 10. IN the result, the Rule is made absolute; the impugned order dated 20.12.67 passed by Shri A. K. Datta, senior Municipal Magistrate, Calcutta, directing the petitioners to remove the cord-grinding factory from its present site within six months from the date of the order, is hereby set aside; and the case is remanded to the court below for disposal in accordance with law by some other Municipal Magistrate, on the evidence already on the record and on such further evidence as the said magistrate may deem fit and proper for carrying out the directions given above by this court. In view of the considerable lapse of time, the learned magistrate is called upon to dispose of the matter as early as possible. The records are to go down immediately.