054-SLLR-SLLR-2002-3-SOMAPALA-FERNANDO-v.-S.-C.-FERNANDO.pdf
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SOMAPALA FERNANDO
v.S.C. FERNANDO
COURT OF APPEALFERNANDO, J., ANDEDIRISURIYA, J.
CA NO. 86/94 (F)
HC NEGOMBO NO. 34/93MC MINUWANGODA NO. 1860JUNE 06, 2002
Code of Criminal Procedure Act. No. 15 of 1979, sections 98 (1) and 98 (1)(b) – Trade injurious to health or physical comfort of the community suppressed- Public nuisance as opposed to private nuisance.
The respondent complained that petitioner is about to construct a brick kiln closeto the respondent's house, and that if constructed it would emit smoke and posea threat to the health of the inmates of the house, the smoke would cause lossof his property and the burning of tyres close to his house would cause pollutionof the environment. The Magistrate's Court discharged the appellant. The HighCourt acting in revision quashed the order of the Magistrate's Court and directedthe Magistrate to order the petitioner to demolish or terminate operations, andremove the brick kiln.
Held :
The letter allegedly signed by several persons, complaining of a threatto the health of the neighbours produced in evidence should be treatedas hearsay evidence, as none of the signatories has been summoned totestify.
The address of the signatories were written by the prosecution witness(1). Thus, a doubt arises as to the authenticity of the document.
The evidence does not show that the smoke emitted or likely to be emittedaffects those who live in the vicinity (s. 98 (1) (b)).
The evidence shows a private nuisance as opposed to a public nuisance.APPEAL from the judgment of the High Court of Negombo.
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Case referred to:
01. Saram v. Seneviratne – 21 NLR 190.
Sunil F. A. Cooray with Chitrananda Llyanage for appellant.
Wijedasa Rajapakse, PC, with Dammika Abeygunawardena for complainantpetitioner-respondent.
Cur. adv. vult.
December 13, 2002EDIRISURIYA, J.
On 04. 04. 1992 the complainant petitioner-respondent in this case <»complained to the Divulapitiya Police that respondent, respondent-appellant was about to construct a brick kiln close to the complainantpetitioner-respondent’s house; that the said brick kiln if constructedwould emit smoke and pose a threat to the health of the inmatesof the house; that the smoke would cause loss to his property.Another allegation against the petitioner was that he was burningrubbish and tyres close to the respondent’s house and the smokeand foul smell from such burning caused pollution of the environment.
The officer-in-charge of the Divulapitiya police states that 1°though the appellant was warned not to pollute the environmenthe disregarded such warning. Therefore, the Magistrate's Courtcase No. 54158 was filed by the police against the appellant.However, as the complainant was not present in court the appellantwas discharged.
. Thereafter, the officer-in-charge, Divulapitiya police filed a freshreport dated 07. 07. 1992 under section 98 (1) (£>) of the CriminalProcedure Code against the appellant.
The Additional Magistrate of Minuwangoda after inquiry dischargedthe appellant and terminated the proceedings against him. The 20
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respondents made an application to the High Court of the WesternProvince (held at Negombo) seeking a revision of the said orderof the learned Additional Magistrate.
The learned High Court Judge of the Western Province by hisjudgment dated 14.10.1994 allowed the said application and quashedthe order of the learned Additional Magistrate dated 01. 10. 1993.
' He directed the Magistrate to order the petitioner to demolish orterminate operations of the brick kiln he is carrying on or intends tocarry on. Also he directed the Magistrate to order the removal of thesaid brick kiln.
Section 98 (1) (b) of the Criminal Procedure Code Act reads thus:
“98 (1) Whenever a Magistrate considers on receiving a reportor other information and on taking such evidence (if any) ashe thinks fit –
(£>)that any trade or occupation or the keeping of any goodsor merchandise should by reason of its being injuriousto the health or physical comfort of the community besuppressed or removed or prohibited.
such Magistrate may make a conditional order that theperson carrying on such trade or occupation shall within atime to be fixed by such order –
(ii) suppress or remove such trade or occupation.”
The witnesses No. 1 and No. 2 who are husband and wife havetestified to the fact the smoke emitted by the brick kiln posed a threatto the health of the neighbourhood though not a single neighbour hasgiven evidence to the effect that the smoke emitted is injurious tothe health of the community.
In his order the learned Additional Magistrate refers to a lettermarked P5, allegedly signed by several persons which was producedin evidence by the prosecution. This letter says that if the petitioner
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is allowed to operate the brick kiln the smoke emitted therefrom couldbe a threat to the health of the neighbours.
On a perusal of the aforesaid document the learned AdditionalMagistrate has found that the addresses of the signatories werewritten by prosecution witness No. 1 himself. Thus, a doubt arisesas to the authenticity of the said document. Further, none of thealleged signatories has been called to give evidence either withregard to the placing of the signatures or that the smoke emanatedfrom the kiln is a nuisance.
This document should be treated as hearsay evidence in view of 6othe fact that none of the signatories has been summoned to testify.
The Additional Magistrate refers to the document marked D2produced by the petitioner signed by 33 neighbours before the GramaSeva officer of the area. This Grama Seva officer has given evidencein court but was not asked a single question on the correctness ofthe document (D2).
In the circumstances the learned Additional Magistrate hasconcluded that the prosecution has not proved that the smokewhich the brick kiln emits or likely to emit could be injurious tothe health or the physical comfort of the community.70
The learned Additional Magistrate has cited several authorities insupport of the view that the term public nuisance contemplated insection 98 (1) (b) is not a nuisance which affects the public in generalbut one which affects only those who live in the neighbourhood.
In the case of Saram v. SeneviratneP> adverted to both by thelearned High Court Judge and the learned Additional Magistrate,Justice Sampayo held that noise caused by cooperating businessaffected all those who dwelt in the vicinity, viz. those occupying housesin Charles Place, Bagatalle Road and Alfred Place.
In the instant case evidence does not show that the smoke emitted 80or likely to be emitted from the said brick kiln affects those who livein the vicinity.
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The learned High Court Judge has misdirected himself by holdingthat as the appellant had not obtained a licence for the brick kiln fromthe Central Environmental Authority or the local authority the brick kilnis a nuisance. The learned High Court Judge has misdirected himselfby holding that since the appellant has not complied with the directionof the Central Environmental Authority requiring there to be a distanceof 200 meters between the kiln and the respondent’s residence thekiln is a nuisance.
The issue to be decided by the learned Magistrate was whetheron the evidence led there was sufficient proof that the smoke emittedor likely to be emitted from the brick kiln affected those who livein the vicinity and not whether the appellant had obtained a licencefrom the local authority or the Central Environmental Authority orwhether the appellant has complied with the directions of the CentralEnvironmental Authority which is a different issue altogether.
The above items of evidence may have been useful if there wasinitially evidence to show that the smoke emitted or likely to beemitted was causing a nuisance to the residents in the vicinity.The evidence led at the Magistrate’s Court at best goes to provea private nuisance as opposed to a public nuisance the onlywitnesses being the husband and wife.
I agree with the submission of the learned counsel for thepetitioner that the only question to be decided by the learned HighCourt Judge was whether an order adverse to the appellant undersection 98 (1) (b) was warranted in terms of the evidence led atthe inquiry.
• For the aforesaid reasons I set aside the order of the learned HighCourt Judge and affirm the order of the learned Additional Magistrate.
FERNANDO, J. – I agree.
Appeal allowed.
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