Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 1289 (PNJ)

Diesel Tubes India- v. Gurcharanjit Singh

2002-11-22

NIRMAL SINGH

body2002
Judgment Nirmal Singh, J. 1. The respondents filed a complaint against the petitioner under section 133 of the Criminal Procedure Code (herein after called the Code) on the allegations that respondents are residents of Shimlapuri, Ludhiana and the petitioner is running an industrial unit in the name and style of M/s Diesel Tube (India) in which diesel engine parts are manufactured and processed. For manufacturing and processing, the petitioner among other machinery has installed draw bench (Jindi) and furnace. The furnace is fuelled by crude oil and for supply of air to the furnace a blow with high power electric motor is used. The unit installed by the petitioner is creating nuisance and it is prayed that the petitioners unit be prohibited or in the alternative regulated under section 133 of the Code. The petitioner contested the application. After hearing the counsel for the parties and perusing the record learned Sub Divisional Magistrate, Ludhiana passed the following order :- "Therefore, I order the respondent will his factory/business with the help of machinery from 9 A.M. to 6 P.M. (The information given by the respondent in Form A under the shops act, as stated by the labour inspector). The respondent is also directed that the will make every endeavour to operate the machinery with the least noise/nuisance the petitioner and the neighbourhood. It is also clarified that this order is passed only relating to the nuisance being caused by the respondent and it shall in no way prejudice the right of any other department including the Punjab Pollution Control Board to take action against the defaulting industry for non compliance of any of the provisions of any Act/ Rules, Govt. Instruction in force to regulate the running of this industry." Aggrieved by the order, the respondent filed revision petition before the learned Additional Sessions Judge who modified the order of the Sub Divisional Magistrate by passing the following order : "I modify the impugned order of the learned trial court. It is held that the respondent is running the industry in a residential area, without any permission of the Municipal Corporation and the Pollution Board and Industries Department. Respondent is running the business with the help of machinery, which creates nuisance, pollution, effecting ecology and environment which will amount to health hazard physical comforts to the community, which can not be permitted under section 133 Cr. Respondent is running the business with the help of machinery, which creates nuisance, pollution, effecting ecology and environment which will amount to health hazard physical comforts to the community, which can not be permitted under section 133 Cr. P.C. Therefore, I order the respondent to close down hisfactory business and to shift the same to some industrial area within a period of six months. Copy of the judgment and trial court file be sent back to the lower court." Aggrieved by the order, the present petition has been filed under section 482 Cr.P.C. for quashing order dated 4.10.1999 passed by the Additional Sessions Judge, Ludhiana. 2 Shri K.K. Goyal, learned counsel for the petitioner submitted that the present petition has been filed by Gurcharnajit/Singh- respondent No.I only to blackmail and extract money. He contended that Gurcharanjit Singh himself was running an industry before enrolment as an Advocate in the year 1995. He contended that adjoining to the premises of the petitioner, number of other persons are running industry but the petition against them has not been filed. He contended that Jagat Singh one of the resident of the locality filed Civil Suit No. 79 dated 11.1.1987 at the instance of Gurcharanjit Singh restraining the petitioner and his agent from running an industry installed at 1317/3, street No. 6 Shimlapuri at night between 7.45 P.M. to 9.00 A.M. on the ground that Shimlapuri is residential area. Alongwith the suit an application under 39 Rules 1 and 2 CPC was also filed but the same was dismissed and Jagat Singh filed an appeal against the said order. The same was also dismissed on 21.10.1998. He further submitted that respondent No.1 has also filed a civil suit titled Gurcharanjit Singh v. M/s Diesel Tube India Limited and others for permanent injunction restraining the petitioner and other and his employees, associates and agents from running Gindi (Machinary) Furnance, Press and other machinery installed in property no. 1317/3, street no. 6 Shimla Puri on the ground that it is nuisance and creating pollution in the air and another suit was also filed by respondent no.1 against the petitioner and for impleading Environmental Engineer, Punjab Pollution Control Board and another suit was filed by Gurcharanjit Singh and others v. Municipal Corporation and others and all those suits have been withdrawn. 6 Shimla Puri on the ground that it is nuisance and creating pollution in the air and another suit was also filed by respondent no.1 against the petitioner and for impleading Environmental Engineer, Punjab Pollution Control Board and another suit was filed by Gurcharanjit Singh and others v. Municipal Corporation and others and all those suits have been withdrawn. He contended that the area does not fall in the residential locality and has been left out from the town planning and building scheme for enabling the residents to set up industrial unit as it is clear from Annexure P-9. He contended. that when respondent Gurcharanjit Singh failed to get relief from the civil court then he filed the complaint under section 133 of the Code of Code of Criminal Procedure. He further submitted that with the consent of the respondents, the local commissioner was appointed in this case who gave his report that the area falls in the commercial/industrial. He contended that the only purpose of respondent No.1 is to harass and humiliate the petitioner. He conended that when the area is an industrial area then there is no question of closing of the industrial unit and shifting somewhere else. 3. On the other hand Shri S.S. Rangi, counsel, for the respondents submitted that the petitioner is running the unit in the residential area of the municipal corporation, Ludhiana which creates nuisance and this unit has been established without getting any permission from the municipal corporation. He contended that the area is within the town area scheme. The industry established by the petitioner is health hazard as it is spreading pollution. He contended that when an industry is spreading pollution and it is injurious to health of the public, the same should be closed as right to health is a fundamental right. If any person violates the fundamental right, the court to protect the fundamental rights should interfere. He has supported the order passed by the Additional Sessions Judge. In support of his arguments he has relied upon Bhan Singh v. Mohinder Singh, 1997 (3) RCR 281 : [1997(3) All India Criminal - Iaw Reporter 409 (Pb. & Hry.)], The Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain etc. JT 1996 (8) SC 387, Sri Srinivasa Theatre and others etc. v. Government of Tamil Nadu & others. In support of his arguments he has relied upon Bhan Singh v. Mohinder Singh, 1997 (3) RCR 281 : [1997(3) All India Criminal - Iaw Reporter 409 (Pb. & Hry.)], The Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain etc. JT 1996 (8) SC 387, Sri Srinivasa Theatre and others etc. v. Government of Tamil Nadu & others. AIR 1992 SC 999, Peoples Union for Democratic Rights & others v. Union of India and others, AIR 1982 SC 1473, Bangalore Medical Trust v. B.S. Muddappa & others, AIR 1991 SC 1902, Subhash Kumar v. State of Bihar & others, AIR 1991 SC 420, D.D. Vyas & others v. Ghaziabad Development & others, AIR 1993 Allahabad 57, Union of India and another v. Dharangadhra chemical Works & another AIR 1977 SC 720, Consumer Education & Research Centre and others v. Union of India & others, AIR 1995 SC 922, Collector of Central Excise, Baroda v. M/s Cotspun Ltd. AIR 2000 SC 197, A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and others etc., AIR 1999 SC 812, State of Punjab & others v. Mohinder Singh Chawla etc.. AIR 1997 SC 1225 I.K. Sukhija & others v. Union of India & others, AIR 1997 SC 2714. 4. I have heard the learned counsel for the parties at length and perused the written arguments. 5. The controversy in this petition is whether the petitioner is running industrial unit in the residential area or whether the complaint has been filed under section 133 of the Code with malafide intention only to harass and humiliate the petitioner. 6. The petition came up for hearing on 7.8.2001. With the consent of both the parties, Shri P.S. Jahangir, Advocate of this Court was appointed as Local Commissioner to visit the premises of the petitioner and to report on the following points : (a) Whether adjoining to the premises of the petitioner, any industry is working or was working on the day when the petition was filed under section 133 Cr.P.C. (b) Whether the petitioner was also running, at ant stage, industry adjoining to the premises of the respondent. After giving due notice of visit to the parties, the local commissioner visited the premises and gave the following report : i) That the premises and plant machinery of M/s Diesel Tubes India was purchased by the petitioner Bhupinder Singh in September, 1992 from Jagj it Singh son of Gian Singh in a running condition measuring 24 x 75 (200 sq. yards) and running its industry of manufacturing of tubes and allied products since then in the above premises. ii) That adjoining to the right side of the petitioners premise is a unit of M/s Modern Auto Steel Industries having No. 1317/4, Gali No. 6, Shimla Puri manufacturing and assembling Scooter parts and accessories. When I visited the unit, it was in a running condition and 5-6 labourers were working. Shri Ramesh Kakkar. Proprietor and owner of M/s Modern Auto Steel Industries told that he has also its main plant of machinery at premises No. 4371, Gali No. 4, Shimla Puri and doing the manufacturing and assembling of Scooter parts and accessories from both the premises. He further informed that his unit in the premises No. 1317/4, Gali No. 6 is working for the last 2 years. iii) That adjoining to the left side of premises of the petitioner is the premises of the respondent-Gurcharanjit Singh, No. 137/2, Gali No. 6, Shimla Puri. Respondent purchased this premises measuring 15 x75 (100 sq. yards) in the year 1988 and started the job of manufacturing of twine used for stringing cots (van) with two machines having electric motors and closed it later on. iv) That adjoining to the premises of the respondent is of Narinder Singh Sodhi having No. 1317/1, Gali No. 6, Shimla Puri posted as SSO in the Department of Telecommunications, Ludhiana. He also purchased the plot in the year 1988 measuring 172 sq. yards. Inderjit Singh Sodhi son of Narinder Singh Sodhi was also running a manufacturing unit under the name and style of M/s Sodhi Plastics, making plastic pads for TVS, Scooters and Cycles from the year 1995-96 and now has its photographer shop. v) That behind and adjoining to all the above mentioned premises is the premises of one Pritam Singh who have built small rooms, given them on rent to the labourers (Bhaias) working in different industries in the loeality are residing. v) That behind and adjoining to all the above mentioned premises is the premises of one Pritam Singh who have built small rooms, given them on rent to the labourers (Bhaias) working in different industries in the loeality are residing. That it has been further noticed that around the above mentioned premises, large number of tiny and small different industrial units exist doing manufacturing and assembling works in small plots. The sketch map of that locality is attached herewith provided to me by the petitioner on the spot. vi) That it has been observed that the area of Shimla Puri where the petitioner is running an industry is virtually an industrial and commercial area for the last so many years. As per the sketch plan attached herewith. I visited number of factories of the locality including respondent No.2, Shamsher Singh s/o Jagir Singh, who is also running an industry. It is pertinent to mention here that Gurcharanjit Singh respondent No. prior to his enrolment as an Advocate was running a factory in the premises adjoining to the petitioner. A perusal of the report shows that adjoinig to the right side of the premises of the petitioner there is an industrial unit whose proprietor is Ramesh Kumar Kakkar who manufacture and assemble scooter parts and accessories and on the left side there are premises of Gurcharanjit Singh respondent No.1. He started the job of manufacturing of twine used for stringing cots (van) with two machines having electric motors and closed it later on. The report further reveals that where the petitioner is running his unit that are is an industrial/ commercial from the last so many years. The local commissioner has given this report after visiting number of units in that area. He has also placed on record sketch plan showing the industrial units. The respondents have not filed complaint under section 133 of the Code against any other. industrial unit. It shows that the respondents have only picked up the petitioner for the reasons best known to them. Gurcharanjit Singh - respondent No. 2 has also filed number of civil suit but before petition under section 133 of the Code was filed, he has withdrawn the suit. i) Suit No. 79 of 1997 was filed and the same was withdrawn on 22.2.1998. ii) Another civil suit bearing No. 740 of 1995 was filed but the same was withdrawn on 6.12.1999. i) Suit No. 79 of 1997 was filed and the same was withdrawn on 22.2.1998. ii) Another civil suit bearing No. 740 of 1995 was filed but the same was withdrawn on 6.12.1999. iii) Civil Suit No. 1160 of 1995 was again filed and withdrawn with permission to file fresh suit. The same was re-filed on 4.4.1996. iv) Civil Suit No. 770 of 1996 was again filed and was withdrawn on 3.11.1999. v) Civil suits No. 396 and 392 of 1996 were withdrawn on 3.11.1999 without any permission. Once the suit has been filed after that at any time after the institution of the suit. plaintiff may as against of or any of the defendants abandon his suit or abandon part of his claim under 23 Rule 1 CPC but if the suit is withdrawn from the court without permission that will be abandonment of the claim of the plaintiff. 7. Admittedly, respondent No. 1 Gurcharanjit Singh has filed suit for permanent injunction restraining the petitioners and other, their official/employees, Assciates and agents from running Gindi (Machinery) Furnance, Press an other machinery installed in property No. 1317/3 street No. 6 Shimlapuri which is a source of nuisance and pollution in the air and on the basis of oral and documentary evidence and another suit against the Environmental Engineer, Punjab Pollution Control Board. All these suits filed by respondent no.2 have been withdrawn without taking permission from the Court. So the respondent No.2 has abandoned his claim. The proceedings under section 133 Cr.P.C. are of summary nature. Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence as he thinks fit that the conduct of any trade or occupation or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated. But once the parties have gone to the civil court for the same relief then the District Magistrate and the Sub-divisional Magistrate should refrain not to initiate the proceedings under section 133 Cr.P.C. as finding recorded by the Civil Court is binding upon the criminal court. 8. But once the parties have gone to the civil court for the same relief then the District Magistrate and the Sub-divisional Magistrate should refrain not to initiate the proceedings under section 133 Cr.P.C. as finding recorded by the Civil Court is binding upon the criminal court. 8. One Jagat Singh son of Mangal Singh filed civil suit No. 79 of 11.1.1997 against the petitioner for permanent injunction restraining the petitioner not to run unit between 7.45 P.M. to 9.00 A.M. at night and averment in that suit that Shimlapuri was a residential area where the industry could not be installed. Along with the suit an application under order 39 Rules 1 and 2 CPC was also filed and the same was dismissed. Mangal Singh has filed an appeal against that order and the same was also dismissed vide order dated 21.10.1998. Against the order of dismissal, no appeal or revision has been filed and that order has attained finality. Once the matter has been settled by the civil court, the criminal court can not over-ride the order of the civil court. The order passed by the civil court is binding upon the criminal court. 9. From the report of the local commissioner coupled with Annexure P-9, it shows that the premises of the petitioner are in industrial/ commercial area. Even the facts of the case also shows that the respondents have not filed the complaint under section 133 Cr.P.C. in the public interest rather this petition seems to have been field with ulterior motive by respondent No.1. It is the case of the petitioner that respondent no.1 was also running an industry in the adjoining premises of the petitioner in property No. 1317/1. Street No. 6, Shimla Puri, Ludhiana and started the job of manufacturing of twine used for stringing ccts (van) with two machines having electric motors and closed it lateron. The petitioner has pleaded in ground No.11 as under : "There are more than 82 industrial units consisting of gear manufacturing, forging machine hammer type, power presses, lathe machines, foundries, but cutting, draw bench etc. There are about 14 residential houses around the unit of the petitioner which is shown red in the plan attached and the house of respondent no.I is shown in blue colour. There are about 14 residential houses around the unit of the petitioner which is shown red in the plan attached and the house of respondent no.I is shown in blue colour. All the respondents of locality have given no objection certificate which is also attached herewith as Annexure-B and the same be read as part of this petition. On the main chimney road on both sides throughout there are shops and industrial units. As a matter of fact right from Vishavkarma chowk from where the Gill Road bisects uptill canal on both sides, there is industrial area. In reply to this ground, the respondents have pleaded as under : "The allegation against the respondent black mailing and extorting are false and baseless and are defamatory. The petitioner is repeating the contents as already stated in para (viii) which is already replied, thus the remaining contents need no reply. It is denied that the area in question is industrial area. As a matter of fact, the area in question is approved area sanctioned by the Government of Punjab. The District/Town Planner, Ludhiana issued certificate that Shimlapuri Street No. 6, Ludhiana is residential area as per Master Plan. That Municipal Corporation, Ludhiana issued a certificate that the area Street No. 6, Shimlapuri, Ludhiana is the approved residential area falling under the building scheme New Janta Part IV C Scheme and this scheme is duly approved by the Government. This certificate as issued on application of the respondent No.1. That the President of India, in pursuance of the provisions of sub- section (3) of Section 275 of the Punjab Municipal Corporation Act, 1976 was pleased to accord sanction to the Building scheme known as NEW JANTA NAGAR PART IV C approved and submitted by the Commissioner, Municipal Corporation, Ludhiana vide his letter No. 509/DIG dt. 8.5.1984 for the area known as New Janta Nagar Part IV C. That Punjab Pollution Control Board, Ludhiana informed in writing that Shimlapuri Street No. 6 is not an industrial area, therefore, the industry can not be permitted to install at this location. The site plan is a false document. It is submitted that the commercial building means a building used and constructed or adopted to be used wholly and partly for shops for private shops, office, banks, nursing homes, hotel and restaurants and other similar purpose but shall not include industry or motor garage. The site plan is a false document. It is submitted that the commercial building means a building used and constructed or adopted to be used wholly and partly for shops for private shops, office, banks, nursing homes, hotel and restaurants and other similar purpose but shall not include industry or motor garage. This is defined in the building rules approved by the Government of Punjab." I have also perused ground No. 8 and its reply. There is no specific denial by the respondents that there is no industrial unit in this area or the resident of this locality has not given in writing that they have no objection. The persons who are residing in the houses adjoining to the house, of the petitioner has given no objection in running the factory of the petitioner. In Anncxure P-6, they have also mentioned that they have given no objection to the Municipal Corporation and the Pollution Board for the grant of licence. So, from the material placed on record it shows that the application filed by respondent No.1 was with some ulterior motive. When the persons adjoining to the house of the petitioner, have given no objection certificate for running of the industry then he litigationinitiated by respondents is malafide and they have no grouse against another industrial unit, number of which is 87. Even the local, commissioner has found the industrial unit running there. The learned Additional Sessions Judge while setting aside the order has over looked this fact. In revision, the order can be set aside if the order is absurd, patent, illegal and against the principles of natural justice. But the learned Additional Sessions Judge has passed the order in a cryptic manner without looking to the fact that other industrial units are also operating adjoining to the premises of the petitioner. Even though the premises of the petitioner are adjoining to the industrial unit but there are residential house also in this area and for the night, the learned Executive Magistrate has rightly regulated running the industry of the petitioner for which the petitioner has not raised any objection. 10 Learned counsel for the respondents has cited number of judicial precedents. For the sake of bravity they have been referred above but all these precedents are not applicable to the facts of the case. 11. For the reasons mentioned above, the petition is accepted. 10 Learned counsel for the respondents has cited number of judicial precedents. For the sake of bravity they have been referred above but all these precedents are not applicable to the facts of the case. 11. For the reasons mentioned above, the petition is accepted. The order of Additional Sessions Judge is set aside and the order of the Executive Magistrate is restored.