IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 WP(C).No. 5536 of 2010(Q) ------------------------------------- (M.C. NO. 32/09 OF THE SUB DIVISIONAL MAGISTRATE, MANANTHAVADY, WAYANAD DISTRICT) ......... PETITIONER: ------------------- BISER.C,S/O.MAMMADEESA HAJI,AGED 38 YEARS, RESIDING AT CHUKKAN HOUSE,PANAMARAM VILLAGE, P.O.PANAMARAM,MANATHAVADY TALUK, WAYANAD DISTRICT. BY ADV. MR.P.K.RAMKUMAR. RESPONDENTS: ------------------------ 1. THE SUB DIVISIONAL MAGISTRATE, MANANTHAVADY,WAYANAD DISTRICT. 2. THE VILLAGE OFFICER,PANAMARAM VILLAGE, MANANTHAVADY,WAYANAD DISTRICT. 3. THE SPECIAL GRADE SECRETARY, PANAMARAM GRAMA PANCHAYATH,P.O.PANAMARAM. 4. THE KERALA STATE POLLUTION CONTROL BOARD, REP.BY ASSISTANT ENVIRONMENT ENGINEER,DISTRICT OFFICE,KERALA STATE POLLUTION CONTROL BOARD, KALPETTA,WAYANAD DISTRICT. R1 & R2 BY GOVT. PLEADER MR. S.U. NAZAR, R3 BY ADVS. MR.MANOJ RAMASWAMY, SMT.MERIL MUTHU P.JOHN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.5536 OF 2010 ------------------------------------------ Dated 17th March 2010 JUDGMENT Petition is filed under Article 226 of Constitution of India for a writ of certiorari and to quash Exts.P1 and P2 orders passed by Secretary (Special Grade), Panamaram Gramapanchayat and first respondent, Sub Divisional Magistrate. Ext.P1 is an order issued by third respondent, pursuant to Ext.P2 order of Sub Divisional Magistrate. Ext.P2 is an order purported to be passed under Section 138 of Code of Criminal Procedure. The order shows that on information received regarding the functioning of illegal slaughter house at Panamaram, an enquiry was conducted through the Village Officer and it is Wpc 5536/10 2 revealed that illegal slaughter house and leather godown is functioning at Panamaram in R.S.No.65, B1.55 which is in the possession of the petitioner and he is operating the leather godown and slaughter house is run by Isuddin @ Ichu, Chedukkil House, Changadakadavu Cherukattoor and both the firms have neither a license obtained from the Gramapanchayat nor consent from the Pollution Control Board and firms are causing nuisance to the public, as they are not having waste disposal facilities and such wastes finally reaches the nearby river and consequently entire area around the firm is spreaded with the bad odor causing several hygienic problem to the public. It shows that conditional order was passed on 4/11/2009 directing third respondent to issue prohibitory orders against the functioning Wpc 5536/10 3 of slaughter house and leather godown and to appear before the court. Evidently Ext.P1 order was passed pursuant to said direction in Ext.P2. In compliance with the direction third respondent appeared and admitted the nuisance caused by the firms and that he has issued prohibitory orders against the offenders. Recording this fact Sub Divisional Magistrate made absolute the conditional order. It is challenged in this petition. Learned counsel appearing for petitioner, respondents 3 and 4 and learned Government Pleader were heard. Though learned counsel appearing for respondents 3 and 4 sought time to file statements, I do not find that on the facts of this case filing of any statement is necessary. 2. Ext.P1 order was passed by third respondent, because of the directions given Wpc 5536/10 4 in the conditional order. Ext.P2 order passed by Sub Divisional Magistrate shows that on receipt of information, he made enquiry through Village Officer and based on the report getting satisfied that proceedings is to be initiated under Section 133 of Code of Criminal Procedure, show cause was issued on 4/11/2009 as provided under Section 133 of Code of Criminal Procedure. But unfortunately, Sub Divisional Magistrate did not issue notice to the persons who are allegedly causing nuisance. Instead show cause notice was issued to third respondent and that too directing third respondent to issue prohibitory orders. It is pursuant to that direction third respondent issued Ext.P1 order and on the basis, posted the case for the appearance of third respondent. He appeared and submitted that Wpc 5536/10 5 there is nuisance. Based on that submission and the fact that Ext.P1 order was issued, Sub Divisional Magistrate made the conditional order absolute under Section 138 of Code of Criminal Procedure. 3. Entire proceedings is illegal. Sub Divisional Magistrate though is competent to pass conditional order under Section 133 of Code of Criminal Procedure, the order is to be issued against the person who is allegedly causing nuisance. He should get a notice, directing him to show cause why conditional order shall not be made absolute. It is for that person, who is allegedly causing nuisance, to appear and show cause why the conditional order shall not be made absolute. In this case, strangely no conditional order was passed against the petitioner or Isuddin Wpc 5536/10 6 who are allegedly causing nuisance warranting initiating proceedings under Section 133 of Code of Criminal Procedure. Sub Divisional Magistrate cannot legally issue a conditional order to the third respondent, with a direction to issue a prohibitory order against the persons who are allegedly causing nuisance. So also on the admission of third respondent, Sub Divisional Magistrate cannot illegally make the conditional order absolute, which would be operative not against third respondent. It must be issued to the petitioner herein as well as Isuddin. In such circumstances, Ext.P2 order is quashed. First respondent Sub Divisional Magistrate is directed to issue fresh show cause notice, as provided under Sub Section 1 Wpc 5536/10 7 of Section 133 to the petitioner and Isuddin. On their appearance or failure to appear Magistrate can pass appropriate order either under Section 137 or 138, in accordance with the provisions of Code of Criminal Procedure, after strictly complying with the procedure. As Ext.P1 order is passed for the reason of illegal conditional order as Sub Divisional Magistrate directed third respondent to pass that order, Ext.P1 order is also quashed. It is made clear that third respondent is entitled to pass appropriate order in accordance with law, if it is warranted. M.SASIDHARAN NAMBIAR, JUDGE. uj.