Madras High Court
A.Thangadurai vs The District Collector on 28 August, 2008
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/08/2008 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P. (MD).No. 5278 of 2008 and M.P.No.1 of 2008 A.Thangadurai ... Petitioner Vs 1.The District Collector, Kanyakumari District, Collectorate Building, Nagercoil. 2.The Hindu Religious and Charitable Endowments, rep.by its Deputy Commissioner, O/o.corporated and Uncorporated Thirukovilgal, Suchindram, Kanyakumari District. 3.The Tahsildar / Executive Magistrate, Agasteeswaram Taluk, Kanyakumari District. 4.The Inspector of Police, Kanyakumari Police Station, Kanyakumari. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari to call for the records pertaining to the impugned order in C2-13811-08 dated 03.06.2008 on the file of the respondent No.3 and quash the same. --- !For Petitioner ... Mr.T.Lajapathi Roy ^For R.1,3 and R4 ... Mr.Vijayakumar Addl.Govt.Pleader For R.2 ... Mr.D.Hari **** :ORDER
The petitioner is the owner of two horses. He was using those two horses for joy ride in the Beach near the confluence of three seas (Triveni Sangamam). As complaints were received by the District Collector that the horse riding done in the beach near Triveni Sangamam was becoming nuisance he imposed a ban for the horse ride. The statement of the Collector was published in the news paper including the Tamil news paper "Daily Thanthi" dated 02.12.2006.
2. The petitioner aggrieved by the said action of the District Collector(first respondent) filed a writ petition being W.P.No.1085 of 2006. This Court by an order dated 15.12.2007, passed the following order:-
" 2. The prayer in this writ petition is for a Writ of Mandamus forbearing the respondents from prohibiting the petitioner's avocation of letting horses to tourists at Kanyakumari Triveni Sangamam Beach without following the due process of law.
3. Mr.D.Sasikumar, learned Government Advocate appearing for the respondents, on instructions, submitted that the petitioner will not be disturbed without following the due process of law. The said submission is recorded.
4. In view of the above said submission of the learned Government Advocate appearing for the respondents, no further order is required in this writ petition. The writ petition is disposed of."
3. It was thereafter, the second respondent on coming to know that a public nuisance was committed by the petitioner continues unabated issued an order under Section order 133 Cr.P.C dated 03.06.2008 and imposed a ban on the petitioner carrying on the trade of horse ride for the tourists with immediate effect. It is this order which is under challenge in the present writ petition.
4. The impugned order in Tamil, if translated reads as follows:-
Form 20 Proceedings of the Tahsildar cum Taluk Executive Magistrate Present .G.Paul Sundar John, Bsc.B.L. Order to remove nuisance C.2-30.08.11.08 Dated :03.06.2008 "Since by conducting horse ride between Triveni Sangamam a place where large number of public and tourist are visiting upto Tsunami Memorial Park, you have been committing nuisance for the public, tourists and the Tsunami Memorial Park and since it has come to notice of this Executive Magistrate and since the said nuisance continuos unabated-
As you are conducing the horse ride as a Trade and being the owner of the horses as it is your trade it is considered, that it may harm the public welfare and tourists enjoyment, with a view to prevent and prohibit such trade and it is to be informed that such trade should be prohibited as it is causing nuisance to the public and Tourists as well as spoiling the natural beauty Kanyakumari Beach and also preventing the view of natural beauty and harmful to the safety by the exercise of power under Section 133, the horse ride in the Kanyakumari Beach is hereby prohibited."
5. This order is attacked by the petitioner. The writ petition was admitted on 18.06.2008 and an interim-stay was granted on the same day.
6. On notice from this Court, the 4th respondent has filed a counter affidavit. In para:9 of the counter affidavit, he has made the following averments:-
"9.I submit that the averments stated in the tenth paragraph of the affidavit are not fully correct. I humbly submit that as far as this subject matter is concerned, several complaints were addressed to the third respondent and other officials stating that the horse riding conducted in the seashore is causing much nuisance and danger to the tourists. So the third respondent who is empowered in initiate action under Section 133 Cr.P.C. on getting information and taking evidence from the complaints had considered it fit to remove the nuisance caused by horse riding by prohibiting the same in Kanyakumari seashore.'
7. In support of the counter affidavit, he has also enclosed several complaints received from the public in the typed set furnished by him. There were as many as 10 complaints starting from January,2008 to June,2008. Therefore, it is not as if the third respondent had acted without any material while issuing an order under Section 133 of the Cr.P.C.
8. However, Mr.T.Lajapathi Roy, the learned counsel for the petitioner placed reliance upon the judgment of this Court in Pepsico India Holding Ltd., Vs. The District Revenue officer and 4 others reported in 2001 (2) CTC 295 and submitted that the procedure prescribed under Section 133 Cr.P.C was not followed. The Executive Magistrate cannot issue a two in one order by combining the provisional notice and the final order into a single order. Further, the petitioner is also entitled to have an hearing by the 3rd respondent.
9. However, he has not denied the power under Section 133 Cr.P.C empowering the Executive Magistrate for ordering the removal of a nuisance found in a public place. He submitted that his client is not committing any nuisance and eking out his living by honourable means. He also stated that horse rides are found in many tourist places and referred to two examples, namely, Kodaikannal and Udagamandalam.
10. This example shown by the petitioner may not be appropriate. Even in some municipalities in places where tourists assemble in large numbers, if such animal rides are permitted, that cannot be shown as a precedent for other places. In a given situation, the Executive Magistrate may on receipt of complaints regarding nuisance, he is bound to act on such complaints and order for the abatement of public nuisance. In the Juhu Beach (Mumbai), the Bombay High Court has prohibited all sorts of animal rides (including horses and camels) not only on the ground of public nuisance but on the grounds of presentation to animal cruelty as per the Prevention of Cruelty to Animals Act. Under the Act animals cannot used as an entertainment or with a view to make money. Even in Chennai Beach, (supposed to be the second largest beach) such animal rides have been prohibited by the Government and attempt to challenge the have failed.
11. Since the petitioner had contended procedural defects under Section 133 of Cr.P.C. it is necessary to refer to the said provision. The relevant provision of Section 133 of Cr.P.C. reads as follows:-
"133.Conditional order For Removal of Nuisance:
(1)Whenever a District Magistrate or a Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of the Police Officer or other information and on taking such evidence (if any) as he thinks fit, considers:-
(a).... omitted
(b) that the conduct of any trade or occupation, or the keeping of any goods or mechandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or mechandise should be removed or the keeping thereof regulated; or
(c) to (l) omitted
(ii)to desist from carrying one or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or mechandise, or to regulate the keeping thereof in such manner as may be directed;
12. The Supreme Court while interpreting the said provision in C.A.Avarachan v. C.V.Srinivasan and another reported in 1996 (7) SCC 71, in paragraph:4 observed as follows:-
"In our opinion the omission on the part of the Sub Divisional Magistrate to draw up a preliminary order, which is a sina qua non for initiating proceedings under Section 133 of the Code of Criminal Procedure and without following the procedure provided for by Section 138, Cr.P.C. the order by the Sub Divisional Magistrate on 13.01.1988 is unsustainable and is vitiated. The High Court in error in not properly appreciating the effect of non-compliance with the mandatory requirements of drawing up a preliminary order before proceedings under Section 133, Cr.P.C. Neither the order of the High Court nor that of the Sub Divisional Magistrate can therefore be sustained."
13. In the light of the above, the impugned order passed by the Executive Magistrate cannot be construed as a final order and it should be treated as a provisional order. The final order under Section 133 Cr.P.C. can be passed by the first respondent only after affording opportunity to the petitioner and recording his statement. The complaints received from the public have already been furnished in the typed set filed by the fourth respondent and a copy of which has been made available to the learned counsel for the petitioner . He can make his submissions within a period of one week from the date of receipt of a copy of this order. Thereafter, the third respondent can issue summons to the petitioner. After recording his statement, the respondent can pass an appropriate final order under Section 133 Cr.P.C.
14. Pending such decision, the third respondent is entitled to pass an interim-order prohibiting continuance of nuisance. The present provisional order can be construed as a Interim Prohibitory Order under Section 142(1) Cr.P.C. The Magistrate is entitled to pass such an order and Section 141(1) of the Cr.P.C.reads as follows:-
"142.Injunctions Pending Injury:- If a Magistrate making an order under Section 133 considers that immediate measures should be taken to prevent imminent danger or injury of serious kind to the public, he may issue such an injunction to the person, against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter."
15. Though the learned counsel may argue that the provisional order issued under Section 133(1) cannot be construed as an order under Section 142 and since the impugned order is issued under Form 20 but an order under Section 142 will have to be issued Form 22 and placed reliance upon the Pepsico case (cited supra) this Court is unable to agree with the said submission. The Forms prescribed under the Cr.P.C cannot control the main provisions of Cr.P.C. One has to look into substance and not form if a nuisance takes place in a public place, the Executive Magistrate is bound to take immediate steps to abate the nuisance and that is why, such emergency powers have been given to him. He has to act with speed and alacrity in controlling the nuisance.
16. In the present case, when he is armed with several complaints from the public, he cannot be a mute spectator and indifferent to the public demand. Therefore, pending final decision, the petitioner cannot continue his trade of conduct his trade in joy horse ride and must await the final order of the third respondent. It is not as if his trade is carried on in private place. There is no absolute fundamental right vested on the petitioner under Article 19(1)(g), and it is always subject to reasonable restrictions.
17. The writ petition stands disposed of on the above terms. The third respondent is directed to follow the procedure set out in paragraph No.13 and pass an appropriate order. Consequently, connected M.P. is closed. No costs.
ssm To
1.The District Collector, Kanyakumari District, Collectorate Building, Nagercoil.
2.The Deputy Commissioner, The Hindu Religious and Charitable Endowments, O/o.corporated and Uncorporated Thirukovilgal, Suchindram, Kanyakumari District.
3.The Tahsildar / Executive Magistrate, Agasteeswaram Taluk, Kanyakumari District.
4.The Inspector of Police, Kanyakumari Police Station, Kanyakumari.