IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL MISHRA th ON THE 4 OF MARCH, 2024 MISC. CRIMINAL CASE No. 3866 of 2013 (TULSIRAM Vs SHEIKH ANWAR AND OTHERS)

Appearance:

(BY SHRI SAKET MALIK - ADVOCATE FOR PETITIONER)

(NONE FOR RESPONDENT NO.1)

ORDER

This petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed assailing the order dated 21.11.2012 passed by the Additional Judge to the Court of First Additional Sessions Judge, Burhanpur (M.P.) in Cri. Revision No.80 of 2012, affirming the orders dated 09.07.2012 and 19.07.2012 passed by the Sub-Divisional Officer, Sub-Division, Burhanpur.

2. It is the case of the petitioner that on 17.11.2006, the respondent No.1- Sheikh Anwar filed an application under Section 133 of CrPC before the Sub- Divisional Officer, Burhanpur alleging therein that the petitioner is having a hotel at Village Ichhapur where he prepares food stuff by burning wood which emits smoke that enters into his house causing damage to his health and causes pollution. Several complaints thereto were made to the authorities but no action was taken by the authorities. Therefore, a prayer is made for punishing the petitioner for causing public nuisance and pollution. On the application, an interim order was passed by the Sub-Divisional Officer on 10.07.2007 and notice was issued to the petitioner. On 16.07.2007, an application was filed along with the reply on 26.07.2007 by the petitioner submitting that he does not use any method which may result in pollution and no pollution is being caused Signature Not Verified Signed by: VINOD by him. The Sub-Divisional Officer carried out spot inspection and thereafter vide order dated 03.07.2008, allowed the application under Section 133 of CrPC directing the petitioner to close furnace of his hotel and should not use it in future.

3. The aforesaid order was put to challenge by filing a criminal revision being CRR No.218 of 2008 before the revisional Court. The revisional Court vide order dated 08.12.2008 set aside the order passed by the Sub Divisional Officer and the application filed under Section 133 of CrPC was dismissed as not maintainable in view of provisions of the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986 in absence of grant of permission by the State Board to take cognizance in the matter. It was also held that the case of the petitioner does not fall within the purview of public nuisance rather the same is private nuisance. Further, no notice to the competent authority as provided under Section 19 of the Environment (Protection) Act, 1986 was given prior to filing of such an application.

4. Despite conclusion of the proceedings as aforesaid, the respondent No.1 preferred another application on 06.03.2012 before the Collector, Burhanpur in Jan Sunwai seeking a direction to the police authorities Shahpur to remove furnace of the petitioner kept in his hotel submitting that wood logs are used in the furnace which is causing air pollution that is harmful for health of the inhabitants. Consequent thereto, M.P. Pollution Control Board, Indore has conducted an inquiry and found the same to be injurious to public health and directed for its removal. The same has not been done despite repeated requests. The application was entertained by Sub-Divisional Officer and vide order dated Signature Not Verified Signed by: VINOD

09.07.2012, direction was issued to close the business of the petitioner and he was asked to file his reply and show cause why the order should be not made absolute. Thereafter, the reply was submitted by him but after considering the reply filed by the petitioner, the Sub-Divisional Officer has passed an order dated 19.07.2012 affirming the order dated 09.07.2012 and fixed the case for recording of evidence of the parties. Being aggrieved, a criminal revision has been preferred challenging both the orders da