- (1.)This is an appeal by the Government of the Province of Bombay against the order of acquittal passed by the Presidency Magistrate, 19th Court, Eslpanade, Bombay, acquitting the opponent under Section 9(7) of the Bombay Smoke Nuisance Act of 1912 for breach of Rule 26 of the Rules under that Act. It is alleged that in contravention of the provisions of the rule the chimney of the opponent s hotel emitted smoke at the lower altitude than that permitted by the law, on February 10, 13, and 10, 1948, between certain hours as specified in the complaint.
(2.)The opponent, who was the accused before the lower Court, is the proprietor of Pyrke s Apollo Hotel situated in a building known as Bright Land on the Lausdowne Road, Apollo Bunder. On the first floor of that building is the kitchen of the hotel, which is about 12 feet from the ground. In that kitchen there is a cooking range with ovens, and in order to allow the smoke coming up from the ovens to go out there was a chimney about 62 feet high from the firing floor level. This chimney has been in existence for several years. In the month of May 1947, and again in the month of June 1947, Mr. Patel, who lives in a building adjoining, complained to the smoke nuisance authorities about the nuisance arising from emission of smoke from the chimney belonging to the opponent. On investigation, the Smoke Nuisance Inspector served a requisition on the opponent-accused to raise the height of the chimney to 88 feet from the firing floor level. This notice was served on the accused on July 9, 1947. Thereupon there was a protracted correspondence between the smoke nuisance department and the accused, in which the accused raised several objections to the compliance with the notice issued to him by the Inspector. Among the objections that were then taken were the contention that the oven from which the smoke was emitted was not a furnace within the meaning of the Act, that the chimney was in existence for a long time, that lie was not bound to raise the height of it, as he was only a lessee of the building, that it was the landlord who should have been called upon to raise the height of the chimney, that the smoke nuisance department should furnish the accused with details of the registration of the chimney, when it was originally constructed, and so on. He also asked for the matter being placed before the Smoke Nuisance Commission and for their orders being obtained in the matter. Eventually the matter was placed before the Smoke Nuisance Commission, and the Inspector of Steam Boilers and Smoke Nuisance informed the accused on September 29, 1947, that the Commission had approved of the notice issued to him on July 9, 1947, and advised the accused that failing compliance with the instructions he would be prosecuted under. 26 of the Bombay Smoke Nusiance Rules. The Inspector further informed the accused that there was no record of the chimney being registered in the name of the Pyrke s Hotel after the hotel was transferred from its original building on the other side of the road to the building where it is now located. The two letters, exhs. Nos. C and G dated July 9, 1947, and January 29, 1948, respectively gave the statutory warning, the details of which were attached to the notice exh. No. G. The Inspector requested the accused to comply with the requirements of the department within the time limit stipulated by the Board. Eventually a complaint was lodged against the accused on March 8, 1948. Even before the proceedings commenced, it appears that the learned Magistrate tried to see whether a settlement could be brought about by raising the chimney to a certain height. The accused agreed to increase the height by about 10 feet, but, as this was not a proper compliance with the requirements of the law and the notice served upon the accused, the prosecution proceeded. The accused, in addition to raising contentions based on the interpretation of the Act and the rules, led evidence to show that, in accordance with the advice, which he had received from one or two architects, it would have been positively dangerous to construct a chimney to the height required by the department, and that the building might not be able to support the weight of a chimney of the height required. The learned Magistrate on a consideration of the evidence came to the conclusion that in view of the evidence led by the defence
It was up to the prosecution to prove that what was required by the prosecution to be clone by the accused was not wanton, unreasonable and difficult of performance according to the necessities of the things.

He then referred to the evidence given, by the two architects on behalf of the defence, and came to the conclusion that the requisition made by the Department was unreasonable, wanton and unjust. He expressed his view that as the chimney was an old one, the Department should impose "such conditions as were practicable and reasonable of performance," in his opinion the prosecution had failed to show that the requisition was reasonable and necessary. He, accordingly, held that non-compliance with such a requisition could not be considered as an offence. He, therefore, acquitted the accused on all the three counts. It is against this order of acquittal that Government have come in appeal.

(3.)It was argued by the learned Advocate General, who appeared in support of the appeal, that the learned Magistrate had, entirely misconceived the real nature of the charge brought against the accused. He argued that the charge against the accused was not of breach of the order issued by the Inspector of Smoke Nuisance with the sanction of the Smoke Nuisance Commission, but that the charge against him was of non-compliance with the requirements of Rule 26 of the Smoke Nuisance Rules. We think that this submission must be accepted. Under Section 8 of the Act :
Furnace means any furnace or fire-place used

(a) for working engines by steam, or

(b) for any ether purpose whatsoever :

Provided that no furnace or fire-place

(i) used for the burning of the dead;

(ii) used in a private house for domestic purposes other than the purpose specified in Clause (a);

shall be deemed to be a furnace or lire-place within the meaning of the Act." Under Sub-section (5) the word owner , when used in reference to a furnace, includes any agent or lessee using the furnace flue or chimney. Section 9 of the Act provides :

(i) If smoke be emitted from any furnace in greater density, or at a lower altitude, or for a longer time, than is permitted by rules made under this Act, the owner of the furnace shall be liable to line (which is prescribed in that section).

Section 11 of the Act empowers the Provincial Government to frame rules, inter alia, to

(f) prescribe the altitude below which smoke may not be emitted from a furnace;"

and

(h) prescribe a procedure for the giving of warning to offenders before instituting a prosecution under this Act, and declare the minimum period which should be allowed to elapse in different classes of cases between the giving of such warning and the institution of a prosecution.

In pursuance of the power given under certain sections rules have been framed, of which Rules 26 and 27 run as under :

26. Altitude of chimneys from which smote may be emitted Smoke shall not be emitted from a furnace at a lower altitude than 100 feet from the firing-floor level:

Provided that this rule shall not apply in the following cases :

(1) Existing chimneys that are, in the opinion of the Commission, of sufficient height for the purpose of the Act.

(2) Furnaces in portable or travelling engines.

(3) Furnaces of engines which, in the opinion of the Commission, are intended for temporary purposes.

(4) Furnaces in steam-vessels.

(5) Any other furnaces especially exempted by the Commission.

27. Issue of Warning by Inspectors. When it appears to an Inspector that an offence has, been committed under the Act in respect of any furnace, he may serve the owner of such furnace with a written warning by registered post. Such warning shall inform the owner of the furnace of the time and date of such offence, and shall be accompanied by a copy of the record of the observation taken, and it shall inform the owner that if the offence is again committed after the expiry of a period, which shall not be less than 10 days, he will be liable to prosecution under the Act.

Then follow certain provisos, which it is not necessary to quote for the consideration of the case before us. The charge framed against the accused was :

That you being the proprietor of Pyrke s Apollo Hotel, situated at Lansdowne Road, Apollo Bunder at Bombay, on February 10, 1948, did allow to emit smoke from a chimney of your furnace at a lower altitude than 83 feet from the firing-floor level as per requirement of Smoke Nuisance Department and committed breach of Rule 20 of the Bombay Smoke Nuisance Act of 1912 under Section 9(1) of the said Act.

It would thus appear that the charge against the accused was for having contravened the provisions of Rule 26 of the Smoke Nuisance Rules. It is true that the charge does refer to a certain notice, according to which the accused was asked to raise the height of the chimney to 83 feet from, the firing floor level, but in a sense the charge against him is for having allowed smoke to emit from his chimney at a height below 100 feet, which is the requirement of Rule 26. It was strenuously argued by Mr. Pardiwalla for the defence that the charge should be read with the notice which was given to him, and that it should be construed as a charge for having disobeyed the requirements of the notice. In any ease, he argued that permitting the accused to emit smoke at a height of 83 feet from the firing-floor level was not in terms identical with the requirements of Rule 26, which says that smoke shall not be emitted from a furnace at a lower altitude than 100 feet from the firing-floor level unless exempted under exception (1) or (5). In our opinion, when the rules say that no smoke shall be emitted from a furnace at a lower altitude than 100 feet from the firing-floor level, it means that, strictly speaking, an offence would be committed whenever smoke is emitted from a furnace at a lower altitude than 100 feet from the firing-floor level unless any of the exceptions apply. But it does not mean that in every case the smoke nuisance department would undertake prosecution. It is within the power of the smoke nuisance department to permit the emission of smoke at a lower altitude than 100 feet from the firing-floor level by the simple device by not taking any steps in such cases. What the department has done by the issue of a notice in this case is that it has called upon the accused to raise the height of the chimney to S3 feet, in which case, though the requirements, of Rule 26 would not be strictly complied with, the department undertook that no prosecution would be resorted to. But the prosecution would be, not for non-compliance with the notice to raise the height of the chimney to 83 feet, but for non-compliance with the provisions of Rule 26, which says that no smoke shall be emitted from a furnace at a lower altitude than 100 feet from the firing-floor level, unless the case comes within the various provisos mentioned in that rule. Emission of smoke at a height of 83 feet from the firing-floor level was emission of smoke at a height lower than 100 feet from the firing-floor level; but the notice of the Smoke Nuisance Inspector merely means that, if the notice was complied with, no further action would be taken against the accused, although in law he had committed an offence. We consider that the learned Magistrate really misconceived the real nature of the offence with which the accused was charged. If the learned Magistrate had realised that the offence with which the accused was charged was of non-compliance with the requirements of Rule 26 of the Smoke Nuisance Rules, we dare say that the learned Magistrate would not have considered in such great detail whether the requirements of the notice served upon the accused were reasonable or unreasonable, just or unjust. If the accused considered that the notice served upon him was unreasonable or unjust, it was not incumbent upon him to comply with that notice; it was open to the accused to prevent the emission of smoke at a height lower than 100 feet from the firing-floor level by resorting to other means of cooking such as installing gas ranges or electric ovens. If he had done so, he could not possibly have been prosecuted for non-compliance with the notice; arid he would have committed no offence" under Rule 26 of the Smoke Nuisance Rules,: Even if the only means of complying with Rule 26 was to close down the hotel, we consider that it would be within the power of the smoke nuisance department to-insist even in such eventuality on smoke not being emitted at a height lower than-100 feet from the firing-floor level or such, Other height which the department may consider reasonable. We have no reason to think that the department would be so unreasonable as to demand compliance with terms which are unjust and unreasonable. From the correspondence itself we find that, although, the accused has taken various objections based on the proper interpretation of the Act and the rules thereunder, he had not really brought to the notice of the department that the construction of a chimney to the height required by the-department was not possible or was going to create difficulties". We have no doubt that if all these difficulties which, the accused-apprehends had been brought to the notice of the department, some solution satisfactory to; b6|h the department and the accused might have been arrived at.