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2021 DIGILAW 677 (JK)

Abdul Salam Guroo v. U. T. of J&K

2021-12-24

SANJEEV KUMAR

body2021
ORDER : 1. The petitioner is aggrieved and has assailed the order of Deputy Director (E&S), with Divisional Commissioner, Kashmir, issued vide his No. Divcom/Dev/05/2021-1825-28 dated 12.08.2021 [“impugned order”] whereby the Unit of the petitioner, dealing with plastic scrap, situated at Kwaki Bazar, Qaimoh, Kulgam, has been declared public nuisance in the area and cause of pollution. Vide the impugned order, the Deputy Commissioner (DC), Kulgam, has been called upon to seal the Unit immediately and initiate appropriate action under rules against the petitioner. 2. The impugned order has been challenged by the petitioner primarily on the ground that the Divisional Commissioner, Kashmir, or the Deputy Director (E&S), working in his office, has no competence or authority to pass such order and even if it is assumed that it has such authority or competence, the impugned order still cannot be sustained having been passed in violation of principles of natural justice. 3. Short grievance projected in this petition is that the petitioner is owner in possession of land measuring 2 kanals 8 marlas and 2 kanals 8 marlas, falling under survey nos. 602/1 and 603 respectively, situated at Kwaki Bazar, Qaimoh, Kulgam, The petitioner submits that he is a scrap dealer by occupation and runs his business on his proprietary land under the name and style of Azad Bartan Store. It is also claimed by the petitioner that he is engaged in the business of collecting, storing and segregation of plastic waste, which is neither a source of public nuisance nor does it cause any pollution in the locality. It is alleged that the respondent No. 6, who is having a property dispute with the petitioner, lodged a false and frivolous complaint with the Divisional Commissioner, Kashmir, who took cognizance of the same without providing an opportunity of being heard to the petitioner and passed the impugned order, declaring the activity of the petitioner as public nuisance and a cause of pollution. The Divisional Commissioner also, without any jurisdiction and competence and acting arbitrarily, directed the DC, Kulgam, to seal the premises of the petitioner. 4. Per contra, Mr. Jahangir Iqbal Ganai, learned Senior Advocate, appearing for the private respondents, contended that the activity, the petitioner is engaged in, falls within the purview of Plastic Waste Management (Amendment Rules) 2018 [“Amendment Rules of 2018” ] and therefore, prohibited. Mr. 4. Per contra, Mr. Jahangir Iqbal Ganai, learned Senior Advocate, appearing for the private respondents, contended that the activity, the petitioner is engaged in, falls within the purview of Plastic Waste Management (Amendment Rules) 2018 [“Amendment Rules of 2018” ] and therefore, prohibited. Mr. Iqbal also submits that the activity of the petitioner is also a source of pollution and public nuisance. The District Magistrate is competent u/s 144 Cr.P.C. to pass appropriate orders even in ex-parte to remove such nuisance. Learned counsel, therefore, submits that the order impugned needs to be viewed in the said context. 5. Having heard learned counsel for the parties and perused the record, I am of the view that neither the Divisional Commissioner, Kashmir, nor the Deputy Director (E&S), working in his office, is a District Magistrate, a Sub Divisional Magistrate or any other Executive Magistrate, specially empowered by the State Government to exercise the powers u/s 144 Cr.P.C. Indisputably, a District Magistrate or Sub Divisional Magistrate or any other Executive Magistrate, specially empowered by the State Government, may exercise power to issue orders in urgent cases, apprehending nuisance or danger to public life, by acting u/s 144 Cr.P.C. Needless to say that section 144 Cr.P.C. lays down an elaborate procedure to be followed. Any order made u/s 144 Cr.P.C. is to remain in force only for a period of two months and if it is to be extended beyond that period, the competence lies only with the Government, that too, when it deems it necessary so to do for preventing danger to human life, health or safety or preventing a fight or any affray and this can be done by the Government only by issuance of a notification. 6. Since the order impugned is neither issued by a competent authority nor does it strictly fall within the purview of section 144 Cr.P.C. as such it is difficult to accept the argument of the learned counsel for the private respondents that the impugned order does not suffer for want of jurisdiction or competence. 6. Since the order impugned is neither issued by a competent authority nor does it strictly fall within the purview of section 144 Cr.P.C. as such it is difficult to accept the argument of the learned counsel for the private respondents that the impugned order does not suffer for want of jurisdiction or competence. Matter would have been different, had the impugned order been passed by the District Magistrate, Kulgam, or any other Executive Magistrate, specially empowered in this behalf by having resort to section 144 Cr.P.C. Even under the Prevention of Water Pollution Act 1974 and Air Pollution Act 1981, the Divisional Commissioner or any other officer working with him, has not been given the jurisdiction to seal any Unit, which as per his or her information, may be a source of pollution. We have a Pollution Control Board (PCB) in position, which, under the aforesaid twin Acts, is competent to initiate appropriate action provided the activity of an offender falls within the purview of the said Acts. 7. Regard being had to the controversy raised in this petition, it would not be prudent to return a final finding as to the nature of activity of the petitioner, which, as per him, pertains only to the collection, storing and segregation of plastic waste and would not fall within the purview of the Rules of 2016 as amended in 2019. 8. Having given my thoughtful consideration to the rival contentions and the case set up in the writ petition, I am of the opinion that ends of justice would be met if this petition is disposed of by providing as under: (a) That the impugned order bearing No. Div Com/Dev/05/2021-1825-28 dated 12.08.2021 is found to be without jurisdiction and is, accordingly, quashed. (b) That notwithstanding quashing of the impugned order supra, it would be competent for the District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf by the Government, to proceed u/s 144 Cr.P.C. provided the activity, the petitioner is engaged in, i.e. collection, storing and segregation of plastic waste on his proprietary land, amounts to public nuisance or otherwise falls within the ambit of section 144 Cr.P.C. (c) That should the District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf by the Government, decide to proceed against the petitioner u/s 144 Cr.P.C. in that eventuality, not only the petitioner shall be given opportunity of being heard but the entire procedure, laid down in section 144 Cr.P.C. shall be strictly adhered to. (d) That it is left to the State Pollution Control Board or any other competent authority to look into the grievance of the private respondents and take a decision as to whether the activity, the petitioner is engaged in, falls within the ambit of the Prevention of Water Pollution Act 1974, Air Pollution Act 1981 or the Rules framed thereunder or any other applicable provision of Anti Pollution Law and, therefore, requires permission to establish/operate a Unit. (e) That the request of the petitioner for permission made earlier, having been rejected once by the Pollution Control Board, on the ground that the activity does not fall within its purview, shall not come in the way of the respondents, who may reconsider and take appropriate action under rules only if the activity of the petitioner falls under the ambit of such rules. 9. Ordered accordingly. 10. Writ Petition is disposed of along with connected CMs.