Kerala High Court
Sajina.J.S vs The District Magistrate on 25 February, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.MC.No.3229 OF 2015 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM "CR"
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941
Crl.MC.No.3229 OF 2015
AGAINST THE ORDER IN CC 65/Camp/2015 OF THE COURT OF DISTRICT
MAGISTRATE, THIRUVANANTHAPURAM
PETITIONER:
SAJINA.J.S
AGED 29 YEARS
D/O.K.R.JAYA, PROPRIETRIX/LICENSEE, M/S.MOTHERS VEG
PLAZA, DOOR NO.14-1981, BAKERY JUNCTION,
THIRUVANANTHAPURAM.
BY ADV. SRI.R.T.PRADEEP
RESPONDENTS:
1 THE DISTRICT MAGISTRATE
THIRUVANANTHAPURAM-695001.
2 ADDITIONAL DISTRICT MAGISTRATE
THIRUVANANTHAPURAM-695001.
R1 BY PUBLIC PROSECUTOR SRI.C.K.PRASAD
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-
02-2020, THE COURT ON 25-02-2020 PASSED THE FOLLOWING:
"CR"
P.V.KUNHIKRISHNAN, JJ
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Crl.M.C.No.3229 of 2015
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Dated this the 25th day of February, 2020
ORDER
The above Crl.M.C is filed challenging Annexure-VII order passed by the District Magistrate, Thiruvananthapuram. This is an order passed by the District Magistrate under S.133(a)(i) of the Criminal Procedure Code (Cr.P.C). The above notice is issued to the licensee of M/s.Mother's Vegetarian Plaza Restaurant, Vanros Junction, Thiruvananthapuram. The petitioner is running the restaurant. The conditional order passed by the District Magistrate is extracted here under:
WHEREAS, it has been appeared to me by personal experience during the recent flood and disaster relief work at the city that the road connecting the busy Bakery Junction to the Vanrose Junction is obstructed for hours. The main cause of the traffic snarl is due to uncontrolled parking in front of Mother's Veg.Plaza Restaurant hereinafter, referred to as the defaulter and convinced that the road in front of the restaurant is not congenial to contain the vehicle coming to there and thereby become not congenial for two way traffic; this road is being used as passage from Thampanoor to important destinations of not only the city and of the State; and traffic blockade is frequent in all day due to the vehicles of customers coming to the restaurant;
AND WHEREAS, adequate slot or any arrangements for parking has not been made by the restaurant ever since; traffic in the road is becoming dense day by day; this is against the guidance issued by Crl.MC.No.3229 OF 2015 3 the District Administration, recently; and a staff posted in front of the shop seen controlling traffic by violating traffic rules only to make way for their customers by obstructing the vehicles of the public; the practice if not prohibited, the main arterial road became a bottle neck to the traffic in Bakery Junction one of the busiest junctions of the City;
AND WHEREAS, I am convinced that there is sufficient ground for proceeding under Section 133(a)(i) of Cr.P.C and immediate intervention of District Administration is imminent to ensure the ingress and egress of the public, NOW THEREFORE, I, Biju Prabhakar, I.A.S, the District Magistrate Thiruvananthapuram in exercise of the powers conferred upon me u/s.133(a)(i) Cr.P.C and with a view to ensure the smooth traffic and to maintain smooth ingress and aggress of the common people, do hereby order and direct the Licensee, M/s.Mother's Veg.Plaza Restaurant, Vanrose Junction, Thycaud Village, Thiruvananthapuram Taluk, to stop functioning of the work with immediate effect, until further orders; and show cause why the order should not be made absolute on 12.6.2015; 11 a.m before the Additional District Magistrate, Thiruvananthapuram (Civil Station, Kudappanakunnu, Thiruvananthapuram) Tahsildar, Thiruvananthapuram will verify the area marked for traffic in the building is per the norms and report immediately;
The District Officer, Food Safety will verify whether arrangements for waste management in the shop The Commissioner of Police, Thiruvananthapuram City/the Tahsildar Executive Magistrate/ Thiruvananthapuram will ensure that the order has been scrupulously adhered to and necessary direction may be given to SHO/Village Officer, concerned.
The Sub Inspector of Police, Cantonment is directed to serve the Order to the parties and return served copy before the hearing date.
Crl.MC.No.3229 OF 2015 4
2. In Annexure-VII the provision noted is S.133(a)(i) Cr.P.C. It is not clear whether it is S.133(1)(a)& (i) Cr.P.C or whether it is S.133(a) (i) Cr.P.C. It is difficult to find out Section 133 (a)(i) in Cr.P.C because there is no sub clause to S.133(1)(a) Cr.P.C. Probably, it will be an order under Section 133(1)(a) & (i) Cr.P.C. According to the District Magistrate, by his personal experience, the road connecting the busy Bakery Junction to Vanrose Junction, is obstructed for hours . According to the District Magistrate, the main cause of the traffic problem is due to uncontrolled parking in front of Mother's Veg Plaza Restaurant. According to the District Magistrate, adequate slot or any arrangement for parking has not been made by the restaurant ever since and hence traffic in the road is dense day-by-day which is against the guidance issued by the district administration. It is also stated that, a staff posted in front of the shop is seen controlling traffic by violating traffic rules, only to make way for their customers, by obstructing the vehicles of the public. In such circumstances, the District Magistrate felt that, there are sufficient ground for proceeding under S.133(1)(a) of the Cr.P.C. Accordingly, the District Magistrate, with a view to ensure smooth traffic and to maintain smooth ingress and egress of the common people, ordered and directed the petitioner to stop functioning of the work of the hotel with immediate effect until further orders and show cause, why order should not be made absolute.
Crl.MC.No.3229 OF 2015 5
3. Heard the learned counsel of the petitioner and the Public Prosecutor.
4. The learned counsel for the petitioner submitted that the District Magistrate has no power to issue Annexure-VII order. There are sufficient parking space in the hotel as evidenced by Annexure-II & III photographs. Therefore, it is contended that, the averments in Annexure-VII order of the District Magistrate are factually in correct.
5. The short point to be decided in the case is whether the District Magistrate can invoke Section S.133(1)(a)&(i) Cr.P.C for the reasons mentioned in Annexure-VII order. For deciding this issue, it is better to extract Section 133 (1)(a) & (b) of the Code of Criminal Procedure, 1973. Section 133(1)(a) & (b) of the Cr.P.C is extracted here under.
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 a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel, which is or may be lawfully used by the public or
(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, 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 merchandise should be removed or the keeping Crl.MC.No.3229 OF 2015 6 thereof regulated; or
(c)xxx
(d)xxx
(e)xxx
(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-
(i)remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
(iii)xxx
(iv)xxx
(v)xxx
(vi)xxx or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Crl.MC.No.3229 OF 2015 7 Court.
Explanation-A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.
6. Section 133 is included in Chapter X of the Cr.P.C which deals about maintenance of public order and tranquility. Sections 129 to 132 are included with a heading "unlawful assemblies". Section 133 to 143 are included with the heading "public nuisance". Section 133 clause (a) says that, any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public . Section 133 clause (b) says that, whenever a District Magistrate or other authorities specially empowered in this behalf by the State Government, on receiving a report of a police officer or other information and on taking such evidence, (if any) as he thinks fit, considers that the conduct of any trade or occupation or the keeping of any goods or merchandise is injurious to health or physical comfort for 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, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation or keeping any such goods or merchandise or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation or owning or possessing such animal or tree, within a Crl.MC.No.3229 OF 2015 8 time to be fixed in the order, direct to remove such obstruction or to desist from carrying on the same or to prevent or stop the construction of such building etc.
7. In the present case, the District Magistrate on his personal experience during the flood and disaster relief work at Trivandrum City, understood that, there is traffic problem in the road connecting the busy Bakery Junction to the Vanros Junction. According to the District Magistrate the traffic problem is because of the uncontrolled parking in front of the petitioner's restaurant. The question is whether the District Magistrate has got power to pass a conditional order u/s.133(1)(a)Cr.P.C or even under Section 133 (1)(b) of Cr.P.C in such situation. According to me, if an area is affected by traffic problem due to uncontrolled parking in a building premises, Sect.133(1)(a) or 133 (1)(b) Cr.P.C cannot be invoked by the District Magistrate. Section 133 (1)(a) is applicable only if the obstruction or nuisance in a public place. Under the guise of removing the obstruction or nuisance in a public road, the District Magistrate cannot invoke Section 133(1)(a) Cr.P.C to shut down a business. Section 133(1)
(b) Cr.P.C can be invoked by the District Magistrate, only if the conduct of any trade or occupation or the keeping of any goods or merchandise is injurious to health or physical comfort of the community . At any stretch of imagination, it cannot be said that, the uncontrolled parking which affect the traffic of a road is "injurious to health or physical discomfort of the Crl.MC.No.3229 OF 2015 9 community". If a building is not having sufficient parking space, there are statutory authorities to look into the same. It is the duty of the local authorities to check, whether there is sufficient parking space allotted as per the building permit. If there is a traffic problem in a particular road, it is the duty of the traffic police authorities to do the needful in accordance with law. In such situation, an order under Section 133(1)(a) cannot be issued by the District Magistrate. I am aware of the fact that Annexure-VII is a conditional order. But when the District Magistrate has no authority to issue such a conditional order, the conditional order itself can be interfered by this court invoking the powers under Section 482 Cr.P.C. In the light of the facts narrated above, Annexure-VII order is unsustainable and is passed by the District Magistrate without authority.
Hence, this Crl.M.C is allowed and all further proceedings in case No. CC No.65/Camp/2015 on the file of District Magistrate, Thiruvananthapuram is quashed. But I make it clear that, this order will not stand in the way of the local authorities taking appropriate steps against the petitioner, if there is any building rules violation and the traffic authorities taking appropriate steps for avoiding traffic problems in front of the petitioner's restaurant.
P.V.KUNHIKRISHNAN, JUDGE cms Crl.MC.No.3229 OF 2015 10 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE P1 ANNEXURE I: TRUE COPY OF THE LICENSE DT.31- 7-2012 UNDER FOOD SAFETY AND STANDARDS ACT, 2006.
ANNEXURE P2 ANNEXURE I1: TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRAKING LOT OF RESTAURANT.
ANNEXURE P3 ANNEXURE III: TRUE COPY OF THE PHOTOGRAPH SHOWING THE BYROAD INFORNT OF RESTAURANT.
ANNEXURE P4 ANNEXURE IV: TRUE COPY OF THE PHOTOGRAPH OF THE DINING AREA OF RESTARURANT.
ANNEXURE P5 ANNEXURE V: TRUE COPY OF THE PHOTOGRAPH OF KITCHEN OF RESTAURANT.
ANNEXURE P6 ANNEXURE VA: TRUE COPY OF THE PHOTOGRAPH OF KITCHEN OF RESTAURANT.
ANNEXURE P7 ANNEXURE VI: TRUE COPY OF THE NEWS PUBLISHED IN 3 PAGES OF MALAYALA MANORAMA DAILY ON 29-5-2015 AS TO THE MARCH TAKEN OUT IN CONNECTION WITH NADAR SANGAMAM.
ANNEXURE P8 ANNEXURE VII: TRUE COPY OF THE CONDITIONAL ORDER DT.28-5-2015 BY R1.
RESPONDENTS EXTS NIL cms /TRUE COPY/ P.S.TO JUDGE