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2000 DIGILAW 290 (MAD)

M. Kuppusamy v. Public V. O. C. Nagar

2000-03-10

I.David Christian

body2000
ORDER 1. This Revision is preferred by one M. Kuppusamy resident of V.O.C. Nagar Oddanchatram, Dindigul District questioning the legality and propriety of the order passed by the Sub-Divisional Magistrate/Sub-Collector. Palani in M.C. No. 6/99/ A6, dated 24.12.1999. 2. The public or V.O.C. Nagar, Dharapuram Road, Oddanchatram seems to have presented a petition before the Executive Magistrate requesting him to take steps to stop the functioning of Hollow Block Cement Factory run under the name and style of "Kuppama Hollow Block" situated at V.O.C. Nagar, New Dharapuram Road, Oddanchatram complaining that the said factory is injurious to the public health because it creates lot of noise and dust due to use of machineries. It is also stated that the respondent himself on a prior occasion had objected to the running of a Saw Mill in the same area by one M. Arumugam. 3. The order refers to a show-cause notice said to have been sent to the respondent/ revision petitioner, dated 27.11.1999. Anyhow, the order does not state as to whether the respondent appeared or participated in the enquiry. On the basis of the petition given on behalf of the public of V.O.C. Nagar, Oddanchatram, the Executive Magistrate has thought it fit to pass an order stating that the Factory run by the respondent is causing nuisance to the people and it also affects the public health and pollutes the area and on the basis of this conclusion, he has ordered the closure of Hollow Block Factory of the respondent. 4. Aggrieved with the said order, the respondent in M.C. 6/99/ A-6 has filed this Revision petition. 5. The order dated 24.12.1999 purported to have been passed by the Sub-Divisional Magistrate under Section 136, Cr. P.C. Sections 133 to 143, Cr. P.C. are relevant sections dealing with public nuisance. Section 133 of Cr. P.C. reads as follows:- Conditional order of removal of nuisance:- (i) Whenever a District Magistrate or 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 (if any) as he thinks fit considers:- (a)..................... Section 133 of Cr. P.C. reads as follows:- Conditional order of removal of nuisance:- (i) Whenever a District Magistrate or 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 (if any) as he thinks fit considers:- (a)..................... (b) That the conduct of any trade or occupation or the keeping of any goods or merchandise is injurious to the 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. 6. Section 134 of Cr. P.C. contemplates that the preliminary order passed under Section 133(1) shall be served on the person affected and the service must be in the manner herein provided for service of a summons. 7. Section 135, Cr. P.C. provides that the order must be specifically directed against the person who is ordered to obey the order. 8. Section 136, Cr. P.C. provides for the consequences on a person against whom the order is passed failing to act as per the directions given by the Magistrate. 9. Section 137, Cr. P.C. provides for an enquiry in case the opposite party comes and denies the very existence of public right. 10. After enquiry Section 141, Cr. P.C. contemplates a final order and even injunction under Section 142, Cr. P.C. 11. So, the impugned order passed by the Sub-Divisional Magistrate is said to have been passed under Section 133(1)(b). First of all, it is merely stated that a show-cause notice has been sent to the respondents namely, the revision petitioner who is the person against whom the order is issued. But the revision petitioner denied the very receiving of show-cause notice and even the records produced by the learned Advocate for the Government does not disclose that the show-cause notice has been actually served on the revision petitioner. The Sub-Divisional Magistrate also only states that he sent a show-cause notice, but does not specially claim that the notice has been served on the person namely, the revision petitioner herein. 12. Section 133, Cr. P.C. also contemplates that the Executive Magistrate can act upon the report of the Police Officer or any other information provided to him. The Sub-Divisional Magistrate also only states that he sent a show-cause notice, but does not specially claim that the notice has been served on the person namely, the revision petitioner herein. 12. Section 133, Cr. P.C. also contemplates that the Executive Magistrate can act upon the report of the Police Officer or any other information provided to him. The present order has been passed not on any report given by the police officer and q reading of the order also shows that the public of V.O.C. Nagar, Oddanchatram have complained about the nuisance. A copy of the petition purported to have been given to the Executive Magistrate is also produced and strangely it does not disclose as to who is the person, who claims to represent the public of V.O.C. Nagar, Oddanchatram complaining, about the nuisance and requested him to stop the functioning of Hollow Block Cement Factory. It also does not contain the signature of any person and it is as good or bad as an anonymous petition because nobody has owned the contents made therein. So, the Magistrate has acted upon a petition which is not owned by any person and on the face of it, this is only purported to have been sent by the public and not by any individual. So, the Sub-Divisional Magistrate has no credible information to act against the alleged nuisance complained by the public of V.O.C. Nagar, Oddanchatram. 13. Section 133, Cr. P.C. also contemplates taking of evidence which means a preliminary enquiry should be held before a final order is passed. The order does not refer to any such enquiry much less taking of any evidence. The Executive Magistrate does not seem to have even visited the factory to satisfy himself as to whether really there is any nuisance or any pollution. Therefore without proper enquiry and without proper application of mind and without serving of notice on the affected party, the Executive Magistrate has chosen to pass the impugned order which is liable to be set aside for the above said defects. 14. In the result, the revision is allowed. The order, dated 24.12.1999 in M.C. 6/99/A-6 passed by the Executive Magistrate/Sub-Collector, Palani is set aside. The other connected petitions are closed in view of the dismissal of the revision petition itself.