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1998 DIGILAW 371 (KER)

Rajappan v. Sub Divisional Magistrate

1998-08-07

S.MARIMUTHU

body1998
Judgment :- S. Marimuthu, J. This petition is moved under S.482 Cr.P.C. to judicially review the order passed by the Sub Divisional Magistrate, Kottayam under S.133 Cr.P.C. in M.C. No. 79 of 1995. 2. A petition dated 28.3.1994 was filed by the 2nd respondent, P.K. Mohandas, Puthenparambil House, Kolladu P.O. before the Sub Divisional Magistrate on the allegation that the present petitioner, Rajappan is trying to construct a latrine very near to his house-well and if he is allowed to construct the latrine, the well water of the second respondent will get contaminated thereby causing injury to the health of his family members. 3. The Sub Divisional Magistrate, on receiving a report of the Executive Officer, Panachikkadu Panchayath, passed the above said order with the following operative portion: .. "In the circumstances, I, the Sub Divisional Magistrate, Kottayam, hereby direct the counter petitioner to construct a pucca skeptic tank in the site of existence of the pit within 30 days of receipt of the conditional order or to appear before meat 3 pm on 20.11.1995 to show cause why the conditional order should not be made absolute". 4. Miss Kochumol, learned counsel appearing for the petitioner vehemently submitted that the order of the Sub Divisional Magistrate is illegal on account of the fact that it is not in accordance with the statutory requirements enjoined in S.133 Cr.P.C. The above submission of the learned counsel for the the petitioner requires a thorough, examination along with the above said statutory provision contained in S.133 Cr.P.C. It appears that the Sub Divisional Magistrate had acted upon invoking S.133(1)(a) of the Code of Criminal Procedure which is relating to any unlawful construction or nuisance affecting the public at large. Now, in the instant case on hand, the construction is only in the private property of the petitioner and the alleged nuisance is put forward by an individual, the 2nd respondent, who is a neighbour of the petitioner. Therefore, at the outset, it can be said that no public has been affected or obstructed by the construction of the country latrine by the petitioner in his property. The same section also provides as to the mode of the conditional orders to be passed by the Sub Divisional Magistrate on the grounds enumerated in Sub-s. l(a) to (f). Therefore, at the outset, it can be said that no public has been affected or obstructed by the construction of the country latrine by the petitioner in his property. The same section also provides as to the mode of the conditional orders to be passed by the Sub Divisional Magistrate on the grounds enumerated in Sub-s. l(a) to (f). The modes of order to be passed by the Sub Divisional Magistrate under S.133 Cr.P.C. do not include of giving direction to put up a construction in a particular manner or way. In this instant case, the operative portion of the order extracted above is in the form of directory, which the Sub Divisional Magistrate cannot be exercised under his power. 5. It is also the submission of the learned counsel for the petitioner that constructing a country latrine in the property of the present petitioner is his right and that cannot be infringed by the Sub Divisional Magistrate invoking his power under S.133 Cr.P.C. equally, that personal right of the present petitioner cannot be challenged by the second respondent by way of moving a petition before the Sub Divisional Magistrate under Chapter X of Cr.P.C. In case the second respondent, assuming, is affected or will be affected by the construction of country latrine by the petitioner, he can seek his remedy in accordance with law in other forum and not before the Executive Magistrate. 6. The above submission of the learned counsel for the petitioner, in fact, does sound to reason. On account of the above premises, I am satisfied to hold that the order passed by the Magistrate under S.13 3 Crl. P. C. is not in accordance with the statutory provisions of S.133 and therefore, that has to be interfered with by this Court under S.482 Crl.P.C. In the result, the order of the Magistrate in M.C. No. 79 of 1995 dated 20.11.1995 stands quashed. The Crl. M.C. is allowed.