Bombay High Court
Purushottam S/O Ramlal Malu vs The Sub-Divisional Officer/Sub ... on 4 March, 2015
Author: S.B. Shukre
Bench: S.B. Shukre
apl664.14
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (apl) No. 664 OF 2014 WITH APL
Nos. 474/14, 513/14, 514/14, 518/14, 519/14, 520/14,
521/14, 522/14, 523/14, 524/14, 525/14, 526/14, 527/14,
528/14, 532/14, 533/14, 534/14, 535/14, 536/14, 537/14,
538/14 and 542/14
(1) APL No. 664/14
Vasudeo s/o Bhavalal Malu
aged 50 years, Occupation : Business,
r/o Wani, Distt. Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. M.M. Ekre, APP, for Non-applicant.
.....
(2) APL No. 474/14
Suresh Murlidharji Bajoriya
aged 48 years, Occupation : Business,
r/o Wani, Distt. Yavatmal. .... APPLICANT.
VERSUS
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The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. M.M. Ekre, APP, for Non-applicant.
.....
(3) APL No. 513/14
Surendra Darbarilal Jain
aged 49 years, Occupation : Business,
r/o Wani, Distt. Yavatmal. .... APPLICANT.
ig VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. M.M. Ekre, APP, for Non-applicant.
.....
(4) APL No. 514/14
Hariram s/o Sajjankumar Mittal
aged 32 years, Occupation : Business,
r/o Wani, Distt. Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
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.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. M.M. Ekare, APP, for Non-applicant.
.....
(5) APL No. 518/14
Omprakash s/o Maniram Agrawal
aged 56 years, Occupation : Business,
r/o Plot No. 30, Jay Bharat Weigh Bridge,
Lal Pulia, Wani, Distt. Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. S.M. Bhagade, APP, for Non-applicant.
.....
(6) APL No. 519/14
Naresh s/o Dhanraj Jain
aged 44 years, Occupation : Business,
r/o Gajanan Mandir Road,
Chandrapur. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. S.M. Bhagade, APP, for Non-applicant.
.....
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(7) APL No. 520/14
Tulsiram Hiralal Kedia
Through Nikhil Tulsiram Kedia,
aged 42 years, Occupation : Business,
F.C.I. Complex, Lal Pulia, Wani,
District Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal.
ig ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. S.M. Bhagade, APP, for Non-applicant.
.....
(8) APL No. 521/14
Naval Kishor s/o Gangpatilal Agrawal
aged 53 years, Occupation : Business,
r/o Wani,
District Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. S.M. Bhagade, APP, for Non-applicant.
.....
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(9) APL No. 522/14
Smt. Vidyatai w/o Rameshrao Umberkar
through POA, Nitin Rameshrao Umberkar,
aged 32 years, Occupation : Business,
r/o Plot No. 26, Tilak Nagar, Wani,
District Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal.
ig ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. S.M. Bhagade, APP, for Non-applicant.
.....
(10) APL No. 523/14
Sharadkumar s/o Madanlalji Chaudhari
aged 72 years, Occupation : Business,
r/o Wani, District Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. A.K. Bangadkar, APP, for Non-applicant.
.....
(11) APL No. 524/14
M/s Sangita Sales Pvt. Ltd.
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Through Director
Shri Anantkumar Gourishankar Agrawal,
aged 55 years, Occupation : Business,
r/o Hotel Machan, Lalpulia,
Chikhalgaon Wani,
District Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
ig .....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. A.K. Bangadkar, APP, for Non-applicant.
.....
(12) APL No. 525/14
M/s Victorian Marketing Pvt. Ltd.
Through Director
Gopalkrishna Gaurishankar Agrawal,
aged 47 years, Occupation : Business,
r/o Nagpur. OR Hotel Machan, Lalpulia,
Chikhalgaon Wani,
District Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. A.K. Bangadkar, APP, for Non-applicant.
.....
(13) APL No. 526/14
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Mohd. Abdul Kadir Mohd. Hanif
aged 69 years, Occupation : Business,
r/o Warora Road, Wani
District Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
ig .....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. A.K. Bangadkar, APP, for Non-applicant.
.....
(14) APL No. 527/14
Purushottam s/o Ramlal Malu
aged 56 years, Occupation : Business,
r/o 50, Ramdaspeth, Katchipura,
....
Nagpur. APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. A.K. Bangadkar, APP, for Non-applicant.
.....
(15) APL No. 528/14
Satpal s/o Junniram Jain
aged 60 years, Occupation : Business,
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r/o Snesh Nagar, Gajanan Mandir Road,
Chandrapur. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. A.K. Bangadkar, APP, for Non-applicant.
.....
(16) APL No. 532/14
Ganesh s/o Parmeshwaridas Gupta
aged 56 years, Occupation : Business,
r/o Wani, District Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. A.K. Bangadkar, APP, for Non-applicant.
.....
(17) APL No. 533/14
Hanumanprasad s/o Maniram Agrawal
aged 50 years, Occupation : Business,
r/o Sneh Nagar, Chandrapur. .... APPLICANT.
VERSUS
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The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. S.M. Bhagade, APP, for Non-applicant.
.....
(18) APL No. 534/14
Harikishan s/o Shikarchand Jain
aged 46 years, Occupation : Business,
Shri Jugla Trading Company,
Near Gandhi Sagar Lake,
Shop No. 22, 23, 24, Nagpur. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. S.M. Bhagade, APP, for Non-applicant.
.....
(19) APL No. 535/14
Arun s/o Sadashiv Patil
aged 35 years, Occupation : Business,
r/o Wada, Tq. Wada, Distt. Thane .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
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.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. S.M. Bhagade, APP, for Non-applicant.
.....
(20) APL No. 536/14
Anilkumar s/o Tryambak Singh Lahariya
aged 57 years, Occupation : Business,
r/o Laxmi Niwas, Pragati Nagar,
Warora Road, Wani,
Distt. Yavatmal .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. A.K. Bangadkar, APP, for Non-applicant.
.....
(21) APL No. 537/14
Rajendra s/o Premchand Jain
aged 52 years, Occupation : Business,
r/o 134, Surya Nagar, Near Hotel Gomti,
Nagpur. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. M.M. Ikre, APP, for Non-applicant.
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.....
(22) APL No. 538/14
Mahavir Coal Corporation Pvt. Ltd.,
Through Abhishek Satishkumar Jain
aged 26 years, Occupation : Business,
r/o Wani, Distt. Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. M.M. Ikre, APP, for Non-applicant.
.....
(23) APL No. 542/14
Satyanarayan s/o Ghasilal Gupta,
aged 56 years, Occupation : Business,
r/l Laxmi Niwas, Pragati Nagar,
Warora Road, Wani, Distt. Yavatmal. .... APPLICANT.
VERSUS
The Sub Divisional Officer/Sub Divisional Magistrate,
Wani, District Yavatmal. ... NON-APPLICANT.
.....
Mr. M.V. & C.M. Samarth Advocates for the Applicant.
Mr. S.M. Bhagade, APP, for Non-applicant.
.....
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CORAM : S.B. SHUKRE, J.
DATED : 04.03. 2015.
ORAL JUDGMENT :
Heard learned counsel for the applicant and learned APP.
Admit. Heard finally by consent.
2. All these criminal applications filed under Section 482 of Code of Criminal Procedure challenge the order dated 30.5.2014 passed by the learned Additional Sessions Judge, Pandharkawada, thereby rejecting the revision applications of the applicants filed against the order dated 22.10.2012 passed by Sub Divisional Magistrate, Wani, under Section 133 read with Section 138 of Code of Criminal Procedure against them in different criminal proceedings.
3. By the order of Sub Divisional Magistrate, Wani, dated 22.10.2012, all the applicants, who are the coal depot owners and engaged in the business of storage of coal on their respective plots for the purposes of commercial and industrial activities, have been directed to shift their respective coal depots from the place where they are presently situated and take them to some distant place from where the S.D.M. feels that they would not constitute the source of nuisance within the meaning of Section 133 of Code of Criminal Procedure. By this order, while directing shifting of coal depots, the learned S.D.M. has also directed the coal depot owners, who are the present ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 13 applicants, to take certain steps including obtaining of No Objection Certificates from the various authorities, such as Tahsildar, Police administration, Regional Transport Office, Public Works Department and Gram Panchayat and also seeking of permission for non-agricultural use from the revenue authorities.
4. After hearing both the sides, the revision applications were dismissed by the learned Additional Sessions Judge by a common order dated 30.5.2014 holding that the order dated 22.10.2012 passed by the S.D.M. was neither ig illegal nor was passed by abdicating his responsibility and that it disclosed subjective satisfaction of S.D.M. about existence of public nuisance, as contemplated under Section 133 Cr.P.C.
5. While assailing the order dated 30.5.2014 passed by the learned Additional Sessions Judge and the order dated 22.10.2012 passed by the S.D.M., learned counsel for the applicants has submitted that both the orders utterly ignore the requirements of proceedings initiated under Section 133 Cr.P.C., which are mandatory in nature. He submits that it is mandatory in law to serve upon the affected persons, i.e. coal depot owners, in the present case, the conditional order passed under sub-section (1) of Section 133 Cr.P.C. He further submits that this requirement of law has not been followed in this case and it has resulted in violation of principles of natural justice. He also points out from the impugned orders and the accompanying documents, which ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 14 form part of the proceedings, that even other procedural requirements, such as recording of evidence, giving of sufficient opportunity to the applicants to show cause as to why the conditional order should not be made absolute, seeking opinion of the expert and so on and so forth, have not been followed in the instant matter. He also points out from the Roznama of the criminal proceeding No. 1/12, which are filed on record of APL No. 474/14 and which form part of the paper-book from pages 97 to 107, and also the minutes of the meeting presided over by the Hon'ble Minister, Environment, Forest and Cultural, Government of Maharashtra, held on 20.10.2012, that the final order passed on 22.10.2012 was actually passed by the Minister and, therefore, it amounted to non-exercise of power under Section 133 Cr.P.C. conferred upon the Magistrate under Chapter X-B of Cr.P.C.
6. The learned A.P.P. has submitted that whatever has been pointed out to be the lacunae in the impugned orders are matter of record and, therefore, he fairly submits that such appropriate order as is found to be serving the interest of justice may be passed.
7. Upon going through the impugned orders and also the documents placed on record, I find that there is great substance in the argument of learned counsel for the applicants and, therefore, as rightly submitted by learned A.P.P., this is a fit case for passing such an order as would advance the cause of justice.
8. Chapter X-B of Cr.P.C. deals with public nuisance and it ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 15 contains elaborate provisions for removal of public nuisance. Section 133 confers power upon a District Magistrate or Sub Divisional Officer or any other Executive Magistrate empowered in this regard by the State Government to pass a conditional order directing removal of public nuisance. Section 134 requires that the conditional order so passed under Section 133(1) shall be served upon the person against whom it is made, and if the order cannot be served, it shall be notified by proclamation published in accordance with the rules prescribed by the State Government, and copy of which shall also be affixed in a place which is thought to be convenient and most suitable for conveying the information about passing of conditional order against whom it is passed. Under Section 135, it is necessary that the person against whom the order is passed either complies with the directions given in the conditional order or if those directions are not acceptable to him, appears before the Magistrate and shows cause against the same.
Section 136 deals with the consequences of failure on the part of the person against whom the order is passed to comply with the mandate of Section 135, and lays down that on his failure to comply with the requirement of Section 135, he would be liable to the penalty prescribed in that behalf in Section 188 of Indian Penal Code. In addition to this, the order passed under Section 133(1) Cr.P.C. is also liable to be made absolute. Section 137 deals with the procedure to be followed for achieving the purpose of preventing obstruction, ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 16 nuisance or danger to the public in the use of public way, river or channel or public place. Further provisions dealing with procedure to be followed where such person appears to show cause, power of Magistrate to direct local investigation and examination of expert seeking obedience of the order which is made absolute, consequences of disobedience, injunction pending inquiry and prohibiting repetition or continuance of public nuisance are to be found in Sections 138 to 143.
9. These provisions suggest that Chapter X-B is a self contained Code. The discretion that it confers is judicial and when facts for its exercise are present, the judicial discretion acquires mandatory import. In Municipal Council, Ratlam v. Vardhichand & ors.
reported in AIR 1980 SC 1622, in para 9, Hon'ble Supreme Court observes, " So, the guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of nuisance, and so he shall exercise it when the jurisdictional facts are present....".
This public duty has to be performed for public good by following the procedure prescribed in this chapter which is a Code by itself for matters relating to removal of public nuisance. A closer look at its provisions will reveal to us the scheme of the Chapter. On the one hand, it gives ample power to the authority mentioned therein to abate public nuisance with desired speed and sting by prescribing summary nature of inquiry and arming the authority with power to give ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 17 specific directions, issue temporary injunction order and penalising disobedience of the order. On the other hand, Chapter X-B takes care of affected person by ensuring that he is not condemned unheard.
10. In the present case, we are not concerned with Section 137.
Our concern is mainly with Sections 138 and 139 as there is a challenge to the procedure adopted by learned S.D.M. Section 138 is the section which in addition to S. 136, confers power upon a Magistrate to pass a final order. It lays down that if the person against whom an order under Section 133 is made, appears and shows cause against the order, the Magistrate is obliged to take evidence in the matter by following the procedure adopted in a summons case. Then it prescribes that if the Magistrate is satisfied that the order either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the Magistrate would proceed to make the order absolute without modification and if required with modification considering the necessity. However, if the Magistrate is not satisfied about making of the conditional order absolute, the Magistrate is obliged to drop the proceedings and close the case. Section 139 empowers the Magistrate to hold an enquiry by directing a local investigation to be made by such person as if he thinks fit. He can also summon and examine an expert.
These provisions indicate that a fair procedure has been prescribed for arriving at satisfaction of the Magistrate as regards the need for issuing directions for removal of public nuisance or otherwise. They ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 18 take into their fold principles of natural justice by affording adequate and reasonable opportunity to the affected person to satisfy the Magistrate as to why the order passed under Section 133(1) should not be made absolute under Section 138. They also require the Magistrate to hold an inquiry by following procedure as in the summons case, which would mean that although it is not necessary to hold a full-
fledged inquiry by recording detailed evidence, a short inquiry in which evidence of necessary witnesses including of the witnesses produced by the affected person is taken and such person is also heard on his defence, is required to be held by the Magistrate. In other words, the power conferred upon the Magistrate is sourced from rule of law, the abiding constitutional principle enshrined in Articles 14 and 19 of Constitution of India, fueled by application of mind on the part of the Magistrate and sustained by reason. Such being the nature of the power, there is no scope for arbitrariness nor abdication of responsibility by the Magistrate.
11. It is well settled law that when power is conferred by statute upon an authority, the power must be exercised only by that authority alone and by nobody else. This is rule against abdication of power. If such authority abdicates his authority to exercise his power in favour of some other person or authority, it would be a non-exercise of statutory power. When an order is passed ostensibly by a statutory authority on the dictates of some other authority, it would only mean that the order ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 19 has been passed in substance not by the statutory authority but by the other authority not empowered to exercise that power. This is not permissible under law.
12. In the case of State of Madhya Pradesh & ors. vs. Sanjay Nagayach & ors. reported in (2013) 7 SCC 25, the Hon'ble Apex Court has held that statutory functions must be above suspicion and be performed independently without any external pressure. It is further held that when an authority invested with the power purports to act on its own but in substance the power is exercised by external guidance or pressure, it would amount to non-exercise of power, statutorily vested. Relevant observations of the Hon'ble Apex Court appearing in para 36 of the judgment are as under :
"Statutory functionaries like the Registrar/Joint Registrar of cooperative societies functioning under the respective Cooperative Act must be above suspicion and function independently without external pressure. When an authority invested with the power purports to act on its own but in substance the power is exercised by external guidance or pressure, it would amount to non-exercise of power, statutorily vested. Large number of cases are coming up before this Court and the High Courts in the country challenging the orders of supersession and many of them are being passed by the statutory functionaries ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 20 due to external influence ignoring the fact that they are ousting a democractically elected Board, the consequence of which is also grave because the members of the Board of Directors would also stand disqualified in standing for the succeeding election as well."
13. In the case of The Purtabpur Company Ltd. v. Cane Commissioner of Bihar & ors. reported in AIR 1970 SC 1896(1) the Hon'ble Apex Court ig has observed that statutory power can be exercised by that authority alone on whom the power is conferred.
Relevant observations of Hon'ble Apex Court, as they appear in paragraph 13, are reproduced as below :
"The power exercisable by the Cane Commissioner under cl.6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of any one not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case, what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by cl.(6) read with cl.(11) but the ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 21 responsibility for making those orders was asked to be taken by the Cane Commissioner."
Now, having regard to the nature of power under Chapter X-B and above referred principles of law, it will have to be seen as to how power under Section 133 read with Section 138 of Code of Criminal Procedure has been exercised by the learned Sub Divisional Magistrate in this case.
14. The conditional order, in the instant case, has been, without any dispute, passed on 8.10.2012. Copy of this order was required to be served upon each of the applicants against whom it was made in view of mandatory provision of Section 134 Cr.P.C., but the same was never served upon each of the affected persons. This fact also appears to be admitted by the learned Sub Divisional Magistrate as there is a noting in the order-sheet dated 22.10.2012 to the effect that the order dated 8.10.2012 had not been served upon the affected persons. Thus, the first requirement of the law and which is also the requirement of principles of natural justice, as contemplated under Article 21 read with Article 14 of Constitution of India, has not been followed in this case and on this ground alone I am of the view that both the orders are liable to be quashed and set aside.
15. The other mandatory procedural requirements of law have also not been followed. The order dated 8.10.2012 was a conditional ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 22 order and the order dated 22.10.2012 was the final order, as it made absolute the initial order dated 8.10.2012 with some modification and was passed under Section 138(2) Cr.P.C. However, before the conditional order is made absolute, we have seen, various provisions of Chapter X-B require that an inquiry is held by the Magistrate by recording evidence of the witnesses following a procedure of summons case and that the Magistrate may also direct local investigation to be made in the matter or cause examination of an expert. It is only after such an inquiry that the Magistrate has to record his satisfaction on the need for issuing directions for removal of public nuisance or otherwise. The satisfaction to be arrived at is, no doubt, subjective but it has to be based on an inquiry made objectively by following principles of natural justice. This procedure has been thrown to winds by the learned S.D.M. and without holding any inquiry, or to be precise without recording any evidence, without giving any opportunity to the affected persons to produce their own evidence and without making any local investigation or without examining any expert, the learned S.D.M. has straightway proceeded to pass an order under Section 138(2) making absolute the conditional order. This procedure is unknown to the provisions contained in Chapter X-B of Cr.P.C. and violative of the principles of natural justice. By not giving any opportunity to know what material was against the applicants, and also to adduce some evidence in support of their defence, the Sub Divisional Magistrate has ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 23 deprived these applicants of their fundamental right of defending themselves. Therefore, on this ground also, the impugned orders cannot stand the scrutiny of law.
16. In addition to above illegalities, there is yet another mistake committed. The learned S.D.M. has abdicated his responsibility to independently exercise his power under Section 133(1) read with Section 138 Cr.P.C. in favour of Hon'ble Minister for Environment and Cultural affairs and I must say that the learned S.D.M. too on his part, shows not much hesitation in admitting such abdication of power by him. Therefore, this is a case of non exercise of statutory power by the learned S.D.M. resulting from breach of rule against abdication of power.
17. The Roznama of two dates, i.e. 8.10.2012 and 22.10.2012 would throw sufficient light on the afore-stated aspect of the matter.
The order-sheet dated 8.10.2012 shows that conditional order was passed on that date and the matter was adjourned to 8.4.2013 for re-
examining the whole issue. However, the matter was suddenly taken up without giving any notice to the affected persons/applicants on 22.10.2012 for passing of appropriate orders. This was done in pursuance of the directions issued by the Hon'ble Minister for Environment and Cultural Affairs in a meeting held on 22.10.2012. It is mentioned in the Roznama dated 22.10.2012 that the conditional order dated 8.10.2012 was being recalled and a modified order dated ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 24 20.10.2012 was being issued on the directions given by the Hon'ble Minister in the meeting held on 20.10.2012. The copy of minutes of the meeting dated 20.10.2012 have been placed on record by the applicants from page no. 117 to 119. A perusal of the minutes would show that the Hon'ble Minister had indeed issued the directions to Sub Divisional Magistrate, Wani, for issuing modified order under Section 138 Cr.P.C. to all the coal depot owners and in this meeting, it is noted that thereafter the S.D.M. on his part gave an assurance that the directions of the Hon'ble learned Minister would be implemented.
With these admissions forming part of the record, the conclusion is too obvious to be drawn. The impugned order dated 22.10.2012 was ostensibly signed by the statutory authority, i.e. Sub Divisional Magistrate, but was in substance issued by the Hon'ble Minister.
There is thus abdication of power by learned S.D.M. in favour of the Hon'ble Minister, which vitiates the conditional order as well as final order impugned herein, as held by the Hon'ble Supreme Court in Sanjay Nagayach & ors. and The Purtabpur Co. Ltd., supra.
18. The abdication of authority in this case is a serious matter as it has happened in spite of directions issued by the Hon'ble Apex Court time and again cautioning the statutory authorities to exercise their power and authority independently and without any external pressure. As a matter of fact, the statutory authority, i.e. Sub Divisional Magistrate, Wani, in this case, was already adequately ::: Downloaded on - 07/05/2015 19:26:51 ::: apl664.14 25 enlightened and guided by the order passed in Criminal Revision No. 68 of 2009 on 29.12.2009 by the learned Additional Sessions Judge, Pandharkawada, in earlier round of litigation in the same matter. The learned Additional Sessions Judge in his order had given an elaborate exposition of the power contained in Chapter X-B of Code of Criminal Procedure and, to my mind, this order is a model order which might be circulated for being read by the statutory authorities under Chapter X-
B for seeking guidance and enlightenment therefrom on how to
exercise the
power regarding removal of public nuisance.
Unfortunately, no benefit from this order offering detailed guidance on a platter has been drawn. Let us hope, in future, there would be a stance by the statutory authority, i.e. S.D.M. which leans towards the law and which is consciously taken after seeking sufficient enlightenment from the order previously passed on 29.12.2009 and also from the orders of the superior Courts passed from time to time.
19. For the reasons stated above, I find that all the criminal applications deserve to be allowed. Accordingly, all the criminal applications are allowed and the orders impugned herein are hereby quashed and set aside.
JUDGE /TA/ ::: Downloaded on - 07/05/2015 19:26:51 :::