Kerala High Court
Thomas vs Nil on 5 June, 2020
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY, THE 05TH DAY OF JUNE 2020 / 15TH JYAISHTA, 1942
Crl.MC.No.5128 OF 2016
AGAINST THE ORDER DATED 01-08-2016 IN MC NO.8/2016 OF SUB
DIVISIONAL MAGISTRATE,KOLLAM
PETITIONERS/RESPONDENTS IN M.C. NO.8/16:
1 THOMAS,
AGED 63 YEARS, S/O.GEEVARGHESE, RESIDING AT EARATHU
PEACE COTTAGE MARUTHAMANPALLI MURI, POOYAPALLY
VILLAGE KOTTARAKARA TALUK, KOLLAM DISTRICT.
2 SHIBU
AGED 33, S/O.CHANDRABABU VINAYAKA AUTO MOBILES AND
BODY WORKSHOP MARUTHAMANPALLI, POOYAPALLY VILLAGE
KOTTARAKARA TALUK, KOLLAM DISTRICT.
BY ADVS.SRI.PRAVEEN K. JOY
SRI.T.A.JOY
RESPONDENTS/ STATE/ PETITIONER IN M.C. NO.8/16
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
2 K.BHADRAN,
AGED ABOUT 50 YEARS, KARTHIKA BHAVAN, VENKODU,
MARUTHAMANPALLI MURI, POOYAPALLY VILLAGE,
KOTTARAKARA TALUK, KOLLAM DISTRICT.
3 N.GEETHA,
AGED ABOUT 45 YEARS, W/O.BHADRAN, KARTHIKA BHAVAN,
KARTHIKA BHAVAN, VENKODU, MARUTHAMANPALLI MURI,
POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM
DISTRICT.
R1-2 BY ADV. SMT.M.S.KIRAN
OTHER PRESENT:
UDAYAKUMAR. K.B. P.P.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-06-
2020, THE COURT ON 05-06-2020 PASSED THE FOLLOWING:
Crl.M.C.No.5128/2016
-: 2 :-
Dated this the 5th day of June,2020
O R D E R
Annexure-15 order dated 01.08.2016 passed by the learned Sub Divisional Magistrate, Kollam in M.C.No.8/2016 is challenged by the original respondents(the petitioners herein) in the proceeding invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, 1973( for short, 'the CrPC'). The impugned order was passed under Section 138(2) of the CrPC directing to close down and remove the automobile workshop conducted by them in the property which caused nuisance to the life of the original complainant.
2. Annexure-1 complaint in M.C. No.8/2016 was filed by the second respondent herein who is the original complainant, complaining that first petitioner who owns reclaimed paddy land, has permitted the second petitioner to run an Crl.M.C.No.5128/2016 -: 3 :- automobile workshop unauthorisedly in the property. The second respondent is living with his family a few meters opposite to the workshop and it is alleged that due to the constant functioning of this workshop, peaceful life of his family is disturbed by sound pollution and other discomforts. He alleges that he was taking treatment in his house after a motor accident and further his mentally retarded child is also under some treatment. On the allegation that the working of automobile workshop as a whole has caused health issues to him and family and that the persons in the neighbourhood are also deprived of their peaceful life, complaint was initiated before the Sub Divisional Magistrate, Kollam for initiation of appropriate action under Section 133 of the CrPC.
3. After being satisfied that there was ground for proceeding against the petitioners, a conditional order calling upon them to demolish and remove the workshop within a stipulated period was Crl.M.C.No.5128/2016 -: 4 :- issued.
4. The petitioners appeared and filed Annexure-10 objection which shows that they requested the learned Sub Divisional Magistrate to stop the proceedings before him since the matter in issue is seized of in O.S. No.13/2016 before Munsiff Court, Kottarakkara filed by them seeking a decree of injunction against the second respondent, the Sub Divisional Magistrate and other revenue officials. It was also contended that the order issued by Grama Panchayat, Pooyapally stopping the functioning of workshop was also challenged in a revision filed before the Tribunal for local bodies and an order of stay of the proceedings is in force. They also claimed that they have every right to conduct the workshop in accordance with the licence and permit already obtained from the concerned authorities.
5. The impugned Annexure-15 shows that the learned Sub Divisional Magistrate proceeded to hold Crl.M.C.No.5128/2016 -: 5 :- enquiry and after hearing the parties and perusing the documents before him came to a conclusion that the conduct of workshop affected the peaceful life of the second respondent and therefore it was liable to be stopped. Consequently, the order for demolition and removal of the workshop was issued.
6. I heard the learned counsel for the petitioners, the learned counsel for the second respondent and the learned Public Prosecutor.
7. It is contended by the learned counsel for the petitioners that the impugned order was passed without being based on any evidence and therefore, itself it is illegal, arbitrary and liable to be set aside. It was argued that the proceeding before the Sub Divisional Magistrate should have been enquired into by following procedure prescribed for trial of a summons case as provided by Section 138(1) of the CrPC. It is also contended that the learned Sub Divisional Magistrate failed to consider whether the alleged nuisance affected the Crl.M.C.No.5128/2016 -: 6 :- health and physical comfort of the community as a necessary condition for exercise of power under Section 138 of the CrPC. In short, the submission is that if at all there is evidence for nuisance also, unless it is shown to have affected the public at large, the remedy under Section 133 of the CrPC before the learned Sub Divisional Magistrate can only be said to be misplaced. The learned counsel for the second respondent sought to sustain the order contending that the finding of the learned Sub Divisional Magistrate holding that working of automobile workshop in the property causes nuisance to second respondent and his family is absolutely correct.
8. After hearing both sides, I am satisfied that the enquiry purportedly conducted by the learned officer was not in accordance with the procedure contemplated by the CrPC. There is nothing to indicate that the parties were permitted to adduce oral evidence or they did not chose to Crl.M.C.No.5128/2016 -: 7 :- adduce oral evidence. The issue as to nuisance, in my opinion, was not considered in its right perspective of law or on satisfactory materials. The order seems to have been passed solely on the basis of the report of the Village Officer that the functioning of the workshop affected the peaceful life of the second respondent and his family. This is quite insufficient.
9. The nature of nuisance which the second respondent has presented is that there is emission of disturbing sound due to the constant working of workshop and this has badly affected the health of the family members especially because some are taking medical treatment in the house.
10. The learned Sub Divisional Magistrate should have pointedly examined the question whether there was sound pollution on account of the working of the automobile workshop in such a manner as to affect the health of family members of the complainant. Even this by itself is not sufficient Crl.M.C.No.5128/2016 -: 8 :- since under Section 133(1)(b) of the CrPC, the learned Sub Divisional Magistrate has to satisfy himself that the alleged act of nuisance affected the public living in the neighbourhood also. Going by Section 133(1)(b) the conduct of the trade must be shown to be injurious to the health or physical comfort of the community. This indicates that nuisance must be of such a nature as affecting the public at large, despite all the affected members of the public may not have been made parties to the proceedings.
11. The learned Sub Divisional Magistrate has to render a definite finding as to whether the nuisance in question is of public nature and the conduct of trade should be stopped or removed for that reason. I do not for a moment assume that proceeding under Section 133 could be resorted to by a party for vindicating his right to abate private nuisance. No enquiry in that line seems to have been held nor the Authority was satisfied that Crl.M.C.No.5128/2016 -: 9 :- there existed public nuisance warranting its interference in the matter. Therefore, the impugned order is bad under law and is therefore liable to be set aside and remitted back for fresh consideration. Unfortunately, this is the second time when the order of the learned Sub Divisional Magistrate is set aside for non-observance of procedural law and I hope that this will not happen again here after.
In the result, Crl.M.C. is allowed setting aside the impugned Annexure-15 order dated 01.08.2016 directing the learned Sub Divisional Magistrate to dispose of the matter finally after reconsidering the issues both factual and legal, involved in the proceeding in the light of the observations made above. The parties, if they so choose, shall be given opportunity for producing oral evidence also. A definite finding shall be entered into as to whether public nuisance affecting the health and physical comfort of the Crl.M.C.No.5128/2016 -: 10 :- community is in existence, so as to empower an order being passed in the proceeding in exercise of power under Chapter X-B of the CrPC. The learned Sub Divisional Magistrate is directed to restore M.C. No.8/2016 to file and dispose of the matter finally, within a period of six months from the date of receipt of a copy of this order.
Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy/
P.A.To Judge
Crl.M.C.No.5128/2016
-: 11 :-
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE 1 TRUE COPY OF THE TAX RECEIPT DT.7-2-13
OF POOYAPALLY GRAMA PANCHAYATH.
ANNEXURE 2 TRUE COPY OF THE TAX RECEIPT IN FAVOUR
OF DEVAKI ISSUED BY VILLAGE OFFICE, POOYAPPILY DT.20-12-15.
ANNEXURE 3 TRUE COPY OF THE REPORT OF ADVOCATE COMMISSIONER IN IA 38/16 IN OS 13/16 BEFORE MUNSIFF'S COURT, KOTTARAKARA. ANNEXURE 4 TRUE COPY OF THE RECEIPT IN PP 8/188 DT.31-12-15 OF POOYAPALLY GRAMA PANCHAYATH.
ANNEXURE 5 TRUE COPY OF THE RECEIPT IN PP 8/189 DT.31-12-15 OF POOYAPALLY GRAMA PANCHAYATH.
ANNEXURE 6 TRUE COPY OF THE TAX RECEIPT DT.26-11- 99 OF POOYAPALLY GRAMA PANCHAYATH. ANNEXURE 7 TRUE COPY OF THE COMPLAINT OF THE PARTY RESPONDENTS BEFORE THE SUB DIVISIONAL OFFICER, KOLLAM.
ANNEXURE 8 TRUE COPY OF THE ORDER DT.11-1-16 IN MC 8/16 OF THE SUB DIVISIONAL MAGISTRATE. ANNEXURE 9 TRUE COPY OF THE JUDGMENT IN CRMC 419/16 OF THIS HONOURABLE COURT.
Crl.M.C.No.5128/2016-: 12 :- ANNEXURE 10 TRUE COPY OF THE DETAILED OBJECTION ON 22-7-2016 BEFORE THE SUB DIVISIONAL MAGISTRATE.
ANNEXURE 11 TRUE COPY OF THE LETTER DT.22-7-2016 OF POOYAPPILLY GRAMA PANCHAYATH.
ANNEXURE 12 TRUE COPY OF THE ELECTRICITY BILL DT.18-11-2015 OF KERALA STATE ELECTRICITYL BOARD.
ANNEXURE 13 TRUE COPY OF THE ELECTRICITY BILL DT.24-11-2015 OF KERALA STATE ELECTRICITY BOARD.
ANNEXURE 14 TRUE COPY OF THE STAY ORDER IN IA 1121/16 IN RP 62/16 OF TRIBUNAL FOR LOCAL SELF GOVERNMENT.
ANNEXURE 15 TRUE COPY OF THE ORDER DT.1-8-16 IN MC 8/16 OF SUB DIVISIONAL MAGISTRATE, KOLLAM.
RESPONDENTS EXHIBITS: NIL