IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 Crl.Rev.Pet.No. 2495 of 2008() ------------------------------ MC.185/2005 of SUB DIVISIONAL MAGISTRATE, THRISSUR) .................... REVN. PETITIONER(S): COUNTER PETITIONER --------------------------------------- KUNJUMON @ MATHAI, S/O.POKKANVEETIL VARKEY, THONYPPARA DESAM, KAINOOR VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S): PETITIONER ------------------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. RAJAN, S/O.POLUVALAPPIL GOVINDAN, EZHUTHACHAN, THONIPPARA DESAM, KAINOOR VILLAGE, THRISSUR DISTRICT. ADV. SRI.V.BINOY RAM FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/10/2008, ALONG WITH CRL.R.P.3052/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NOs. 2495 & 3052 OF 2008 ............................................ DATED THIS THE 29th DAY OF OCTOBER, 2008 ORDER Revision petitioner in Crl.R.P.2495 of 2008 is the counter petitioner in M.C.185 of 2005 on the file of Sub Divisional Magistrate, Thrissur. Second respondent is the petitioner therein. In Crl.R.P.3052 of 2008, petitioner is a third party and second respondent is the second respondent in Crl.R.P.2495 of 2008. In both the revisions, the same order passed by Sub Divisional Magistrate, Thrissur dated 18.7.2008 under Section 138 of Code of Criminal Procedure is challenged. 2. On a petition filed by second respondent, Sub Divisional Magistrate called for a report from Additional Tahsildar, Thrissur and based on the report passed, a conditional order on 9.6.2005 under Section 133 of Code of Criminal Procedure, to stop functioning of the quarrying operations or to show cause why the order shall not be made absolute. The allegation of second respondent was that revision petitioner in Crl.R.P.2495 of 2008 is conducting quarrying operations without obtaining valid license and the quarrying operation causes a public nuisance as pieces of stones falls on the tiled house of second respondent CRRP 2495 & 3052 OF 2008 2 and it is causing danger to the family members and the public at large. Revision petitioner in Crl.R.P.2495 of 2008 appeared and showed cause to the conditional order contending that the quarrying is not conducted by him but by revision petitioner in Crl.R.P.3052 of 2008 as per an agreement executed by him. It was contended that second respondent had instituted a suit before Munsiff Court and no public nuisance is caused and therefore the conditional order passed is not sustainable. Sub Divisional Magistrate did not implead the revision petitioner in Crl.R.P.3052 of 2008, though records show that there was material before Sub Divisional Magistrate to show that the said revision petitioner obtained license and is conducting the quarrying operations. After recording the evidence of first respondent and the witnesses and the revision petitioner in Crl.R.P.2495 of 2008. Sub Divisional Magistrate passed an order under Section 138 of Code of Criminal Procedure, directing revision petitioner in Crl.R.P.2495 of 2008 to stop functioning of the quarry in Survey No.74/115 of Kainoor Village owned by him finding that there is no license to conduct the quarry and public nuisance is being caused by conducting the quarry. The counter petitioner filed Crl.R.P.2495 of 2008 challenging that order. CRRP 2495 & 3052 OF 2008 3 Revision petitioner in Crl.R.P.3052 of 2008 is challenging the order, contending that though he is conducting the quarry and is having the license, he was not issued any notice by the Sub Divisional Magistrate and therefore the order passed is not binding on him and when he is conducting the quarry, no direction could be issued to revision petitioner in Crl.R.P.2495 of 2008 to stop the quarry. 3. Learned counsel appearing for revision petitioners and second respondent were heard and records of Sub Divisional Magistrate was perused. 4. In view of the order to be passed in this petition, it is not necessary to consider the question whether the running of the quarry is causing any public nuisance or not in the revision petition. Sub Divisional Magistrate issued a conditional order and directed revision petitioner in Crl.R.P.2495 of 2008 to close the quarry or to appear and show cause why the conditional order shall not be made absolute. Even though revision petitioner, in answer to the notice, appeared and contended that it is not he, but revision petitioner in Crl.R.P.3052 of 2008, who is conducting the quarry, Sub Divisional Magistrate did not issue any notice to the revision petitioner in Crl.R.P.3052 of 2008 and CRRP 2495 & 3052 OF 2008 4 passed a final order under Section 138 of Code of Criminal Procedure against the revision petitioner in Crl.R.P.2495 of 2008. As rightly pointed out by learned counsel appearing for revision petitioners, when it is brought to the notice of Sub Divisional Magistrate that it is not the counter petitioner in M.C.185 of 2005, who is conducting the quarry, which is allegedly causing public nuisance, but by the revision petitioner in Crl.R.P.3052 of 2008, a notice should have been issued to him and an order should have been passed only in the presence of revision petitioner. Without granting opportunity to the revision petitioner in Crl.R.P.3052 of 2008 to show whether he is having any license to conduct the quarry, learned Magistrate should not have found that there is no license. It is seen from the records of the Sub Divisional Magistrate that Village Officer had filed a report on 26.2.2008, after inspection and verification, to the effect that the quarry is being conducted by the revision petitioner in Crl.R.P.3052 of 2008 and was having license. As against the finding in the impugned order, the report of Village Officer shows that there was license for the revision petitioner in Crl.R.P.3052 of 2008. Copy of the license is also seen appended to the report. In such circumstances, Sub Divisional Magistrate, CRRP 2495 & 3052 OF 2008 5 before passing the order under Section 138 of Code of Criminal Procedure, should have issued notice to revision petitioner in Crl.R.P.3052 of 2008 and decided the question whether operating the quarry causes public nuisance or not in his presence and should have passed the order only after hearing him. As it is not done, the impugned order dated 18.7.2008 is set aside. M.C.185 of 2008 is remanded to Sub Divisional Magistrate, Thrissur for fresh disposal in accordance with law. Sub Divisional Magistrate to implead revision petitioner in Crl.R.P.3052 of 2008 as additional counter petitioner and shall grant opportunity to cross examine the witnesses already examined shall also permit him to adduce evidence and pass appropriate order in accordance with law only thereafter. Send back the records to Sub Divisional Magistrate. M.SASIDHARAN NAMBIAR, JUDGE lgk/-