-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 15 OF 2010 1. Mr. Rohan Vaman Savaiker, 29 years of age, r/o. Karapur Tisk, Sanquelim, Goa. 2. Mr. Gurudatta Krishna Pal, 34 years of age, r/o. H. No. 72, Bordem, Bicholim-Goa. 3. Mr. Sanjay Ratnakar Khandeparkar, 28 years of age, r/o. H. No. 751, Shantaram Nagar, Bordem, Bicholim, Goa. …... Petitioners V e r s u s 1. STATE Rep. By Shri Terence Vaz, PSI Bicholim Police Station, Bicholim, Goa. 2. Villagers of Bicholim Taluka, (As mentioned in the cause title of the Orders impuged) 3. Transporters (Mine Transporters) (As mentioned in the cause title of the Orders impugned) 4. Deputy Collector and Sub Divisional Magistrate of Bicholim Taluka, Bicholim, Goa. (Above are the registered addresses of the Parties.) .….. Respondent Mr. A. D. Bhobe, Advocate for the Petitioner. Mr. C. A. Ferreira, Public Prosecutor for the State/Respondent no.1. -2- CORAM: R. M. SAVANT, J. DATE : 10 th February, 2010. ORAL JUDGMENT Rule, with the consent of the parties made returnable forthwith and heard. 2. This Petition takes exception to the Corrigendum issued to the Order dated 28.01.2010 by the Sub Divisional Officer, Bicholim, which Order he has issued under Section 133 of the Criminal Procedure Code. By the Order dated 28.01.2010, the S.D.O. has directed the concerned mine transporters to stop transportation of the ore on the Kalne/Raddi road. This Order has been passed on the basis of the complaint received from the Villagers of Bicholim Taluka, especially the Villagers of Latembarcem, Mulgaon and Bicholim. The representation of the Villagers is to the effect that due to the said transportation of the ore which, inter alia, includes overloading of the trucks, a nuisance has been created which includes air pollution and there is also danger to the life of the Villagers due to rash and negligent driving of the said trucks. 3. The relevant clause of the said Order dated 28.01.2010 reads as follows : “AND WHEREAS prima facie based upon the Police Report as aforesaid, you are hereby directed to stop -3- mining transportation of trucks especially Kalne/Raddi be stopped immediately on receipt of this order or to appear before this Court on 08/02/2010 at 3.00 p.m. to show cause why the said conditional order should not be made absolute.” By Corrigendum issued on 03.02.2010, the word “or” was sought to be substituted by the S.D.O. by the word “and”. The said clause on the substitution of the said word would, therefore, read as follows : “AND WHEREAS prima facie based upon the Police Report as aforesaid, you are hereby directed to stop mining transportation of trucks especially Kalne/Raddi be stopped immediately on receipt of this order and to appear before this Court on 08/02/2010 at 3.00 p.m. to show cause why the said conditional order should not be made absolute.” 4. The above Petition has been filed on behalf of the transporters who are transporting the ore in question. The principal contention advanced on behalf of the Petitioners by Shri Bhobe, the learned Counsel, is that the Corrigendum, issued by the Respondent no.4-S.D.O., is beyond the scope and ambit of Section 133 of the Cr.P.C. The learned Counsel submitted that the said Section postulates either compliance of the conditional Order by the defaulting party in question or the party seeks a hearing before the authority to show cause. However, in the instant case, on account of substitution of the word “or” by the word “and” in the said clause, the mandate of the said -4- Section is violated and the Order becomes a final Order thereby the option of the defaulting party going for a hearing stands negated. No other contention is urged by the learned Counsel for the Petitioner. 5. In the context of the submission made by the learned Counsel for the Petitioner, it would be relevant to see the scheme as envisaged in Section 133 of the Cr.P.C. The said Section as mentioned herein above, postulates the passing of a conditional Order by the S.D.O. or any Executive Magistrate on receiving report as regards a nuisance from a Police Officer or on the basis of other information and/or on taking such evidence as he deems appropriate. The types of nuisances and the eventualities are mentioned in clauses (a) to (f) of the said Section in respect of which a conditional Order can be passed asking the defaulting party within a time fixed to take corrective steps as mentioned in clauses (i) to (vi) of the said Section. If the defaulting party has any objection to carry out the directions as contained in the conditional Order, then it can appear before the S.D.O. or some other Executive Magistrate and show cause in the manner provided as to why the Order should not be made absolute. It would also be relevant to refer to Section 135 of the Cr.P.C., which mandates that the person against whom a conditional Order is passed, as envisaged in Section 133, within the time and in the manner specified, would perform the act directed thereby or appear in accordance with such Order and show cause against the same. 6. Therefore, what flows from a reading of Section 133 and 135 of -5- the Cr.P.C. is that the S.D.O., is empowered to pass a conditional Order in the eventualities mentioned in the said Section and direct the taking of corrective steps by the defaulting party. The defaulting party in the said eventuality has two options either to perform meaning thereby comply with the conditional Order or appear before the S.D.O. or other Executive Magistrate and show cause against the same. 7. In the instant case, in view of the substitution of the word “or” by the word “and”, the very essence of the scheme under Section 133, has been tinkered with. The S.D.O. in issuing the said Corrigendum, has therefore, passed an Order which militates against the scheme as postulated in the said provision. 8. In my view, in the light of the scheme contained in the said provision, the issuance of the Corrigendum dated 03.02.2010 also goes counter to the said provision. The learned Public Prosecutor Shri Ferreira fairly conceded that looking to the scheme of Section 133, the word “or” could not have been replaced by the word “and” by the impugned Corrigendum. 9. In my view, therefore, the said Corrigendum would have to be set aside and is accordingly set aside. Consequently, the conditional Order would operate as per its original text when issued, with the word “or”. The learned Counsel for the Petitioner stated that the hearing before the S.D.O. is fixed for 16.03.2010. However, the learned Public Prosecutor is agreeable to -6- preponing of the hearing and early disposal of the proceedings. Accordingly, the hearing before the S.D.O is fixed for 18.02.2010 at 3.30 p.m. and the same to be disposed latest within three months of date. 10. Rule is accordingly made absolute in the aforesaid terms. R. M. SAVANT, J. arp/*