IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 Crl.Rev.Pet.No. 3756 of 2009() ------------------------------ REF.A.1052/2009 of SUB DIVISIONAL MAGISTRATE, KOZHIKODE .................... REVN. PETITIONER:PETITIONER/COMPLAINANT:- ------------------------------------------------------ KIZHAKKAYIL VINODHAN, S/O. KANARAN, KIZHAKKAYIL HOUSE, VILLIAPPALLI.P.O. VATAKARA,KOZHIKODE. BY ADV. MR. PULIKKOOL ABUBACKER MR. SUBAIR PULIKKOOL RESPONDENTS/ RESPONDENTS:- ------------------------------------- 1. PEETAKANDIYIL SANKARAN, KOTTIAM VELLIKUNNUMMAL VILLIAPPALLI.P.O., VATAKARA, KOZHIKODE. 2. M.P.BALAN, ARCHANA HOUSE, PUTHIYARA.P.O. KOZHIKODE. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. MR. V.V.SURENDRAN FOR R1 & R2 MR. P.A.HARISH FOR R1 & R2 MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 3756/2009 : 2 : ORDER ON CRL. M.A. NO. 11905/2009 IN CRL.R.P. NO. 3756/2009 DISMISSED 11.03.2010 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. -------------------------------------------------- Crl.R.P. No. 3756 of 2009 ---------------------------------------------------- Dated this the 11th day of March, 2010. ORDER Heard both sides. The revision petitioner moved the Sub Divisional Magistrate, Kozhikode under Section 133 Cr.P.C alleging that respondents 1 and 2 herein are blasting rocks unauthorisedly in the property comprised in Resurvey No. 14/1 of Villiappally village, Thirumana Desom causing nuisance and injuries to the petitioner. The Sub Divisional Magistrate as per order dated 20.02.2009 passed a conditional order under Section 133 Cr.P.C. The said order reads as follows:- “Whereas it has been made to appear to me that you are carrying on blasting of rocks unauthorisedly in Re- Survey No.14/1 of Villiappally village, Thirumana Desom causing much nuisance and injuries to the petitioner and such nuisance still exists. I, P.S. Mohammed Sagir, the Sub Divisional Magistrate, Kozhikode do hereby require and direct and respondents to stop the blasting of rocks in Resurvey No. 14/1 of Villiappally Village, Thirumana Desom forthwith or to appear before this court at 11.00 a.m. on 19-08-09 and show cause why this order should not be enforced.” 2. Respondents 1 and 2 were called upon either to stop Crl. R.P. No. 3756/2009 : 2 : the blasting of rocks or to appear and show cause as to why the conditional order should not be made absolute. Respondents 1 and 2 are alleged to have showed cause against the conditional order. Thereupon, by virtue of Section 138 Cr.P.C., it was for the revision petitioner to adduce evidence in support of his allegation. The learned Magistrate however as per the impugned order dated 29.10.2009 dropped the proceedings without conducting any enquiry. The said order reads as follows:- “This petition coming before me on 29.10.09. Parties appeared. It is ordered that quarrying can be done with proper licence from concerned authorities. The matter dropped accordingly.” 3. The order is ex facia unsustainable. After the passing of the conditional order, respondents 1 and 2 were bound to either stop the blasting operations or to show cause why the conditional order should not be made absolute. They having shown cause, it was for the revision petitioner to adduce evidence in support of his case and it was only after such enquiry could the Magistrate either make absolute the conditional order or drop the proceedings if he was not satisfied that the revision Crl. R.P. No. 3756/2009 : 3 : petitioner had substantiated his contention by adducing reliable evidence in support of the same. The impugned order is accordingly set aside and the Magistrate is directed to proceed from the stage of the conditional order. Respondents 1 and 2 will be entitled to run the quarry and do the blasting operations in case they are holding a valid licence to do so and the necessary clearance from the Pollution Control Board and other statutory authorities has been obtained. It is made clear that in case the blasting operations are stopped on the strength of the order passed by the Sub Divisional Magistrate at the instance of the revision petitioner and if ultimately it turns out that respondents 1 and 2 were having all the requisite licence and authority to conduct the blasting operations, the petitioner will be liable to compensate the respondents for the entire loss, if any, sustained by them due to the stoppage of blasting operations. This revision is disposed of as above. Dated this the 11th day of March, 2010. V. RAMKUMAR, JUDGE. Crl. R.P. No. 3756/2009 : 4 : rv