Kerala High Court
P.P.Gangadaran vs Nil on 5 September, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
MONDAY, THE 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934
Crl.MC.No. 3519 of 2007 ( )
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CRA.132/2004 of ADDL. DIST. COURT (ADHOC) III, PALAKKAD
PETITIONER(S)/PETITIONER:
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P.P.GANGADARAN,
S/O.PAZHANAN, AGED 53 YEARS, POKKATHVEEDU
KALAPPETTY,KUZHALMANNAM, ALATHUR TALUK
PALAKKAD DISTRICT.
BY ADVS.SRI.JACOB SEBASTIAN
SRI.P.B.ABOOBACKER
COMPLAINANT(S)/RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
2. RAMANKUTTY, RESIDING AT POTHENKKAD
KALAPPETTY, KUZHALMANNAM, ALATHUR TALUK
PALAKKAD DISTRICT.
BY ADV. PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 3519 of 2007 ( )
APPENDIX
PETITIONERS ANNEXURES:
ANNEXURE 1: TRUE COPY OF THE CERTIFICATE DATED 05.09.2003 OF THE
CHAIRMAN, STANDING COMMITTEE FOR WELFARE, KUZHALMANNAM
GRAMAPANCHAYATH
ANNEXURE 2: TRUE COPY OF THE ORDER DATED 20.12.2003 OF THE FIRST
RESPONDENT
ANNEXURE 3: TRUE COPY OF THE JUDGMENT DATED 15.12.2006 IN CRIMINAL
APPEAL NO:132/2004 OF THE COURT OF THE ADDITIONAL SESSIONS
JUDGE, FAST TRACK COURT NO:3, PALAKKAD.
ANNEXURE 4: TRUE COPY OF THE NOTICE DATED 05.11.2007 OF THE THIRD
RESPONDENT.
RESPONDENTS ANNEXURES: NIL
//TRUE COPY//
P.A.TO JUDGE
JJJ
N.K. BALAKRISHNAN, J.
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Crl. M.C. No: 3519 of 2007
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Dated this the 10th day of September, 2012
O R D E R
The petitioner challenges Annexure 2 order dated 20.12.2003 passed by the Revenue Divisional Officer. It is stated that one Ramankutty had submitted a complaint to the effect that the petitioner had constructed a septic tank very close to the well from which the complainant used to take drinking water and that the well water was getting polluted.
2. The impugned order shows that the R.D.O. had obtained report from the Village Officer, Kuzhalmannam and also from the Tahsildar and subsequently the R.D.O. himself conducted inspection and the impugned order was passed. It is stated that the well of the complainant was situated Crl.M.C. No: 3519/2007 -2- only about 7 metres away from the septic tank and so the water in the well was likely to be polluted. Hence, the impugned order was passed directing the petitioner herein to demolish the present one and to re-construct the septic tank at a distance of 15 metres from the well of the complainant.
3. The learned counsel for the petitioner submits that the order was not passed by the Sub Divisional Magistrate under section 133 of Cr.P.C. No conditional order was also passed. Even the nomenclature shows that it was passed by the R.D.O. Nowhere it is stated that the order was passed under section 133 of the Code of Criminal Procedure. The very fact that no conditional order was passed also would make it clear that it is not an order passed under section 133 of Cr.P.C.
Crl.M.C. No: 3519/2007 -3-
4. The learned counsel would also submit that a perusal of the order would show that the petitioner had violated the provisions of the Kerala Building Rules and if that be so, action can be taken only by the Panchayath under the provisions of the Kerala Building Rules. It is also argued that to invoke the power under section 133 of Cr.P.C., nuisance should be to the public or to a community at large. A private nuisance or grievance of a private individual cannot be the subject matter for adjudication under section 133 of Cr.P.C., it is further argued. Even going by the order it can only be seen that the nuisance complained of was by the complainant, a single individual. If so his remedy was to approach the civil court, further argues the counsel. Because of the various reasons mentioned above, the impugned order cannot be sustained. Crl.M.C. No: 3519/2007 -4- In the result, this petition is allowed. Annexure 2 Order is set aside.
It is made clear that if the act of the petitioner involves any public nuisance, it is open to the Sub Divisional Officer to take appropriate action but only in accordance with law following the procedure prescribed under sections 133 to 138 of Cr.P.C.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj