IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 Crl.Rev.Pet.No. 8 of 2010() --------------------------- A2.4212/2007 of SUB DIVISIONAL MAGISTRATE, PALA .................... REVN.PETITIONER/IST RESPONDENT --------------------- SURESH,S/O.PARAMESHWARAN NAIR, 39 YRS.OF AGE,MANATHOTTATHIL HOUSE, CHEMBULAVU KARA,KIDANGOOR VILLAGE,KOTTAYAM. BY ADV. SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE SRI.K.C.THOMAS (PALA) RESPONDENT/COMPLAINANT & 2ND RESPONDENT ------------------------------------------- 1. ADV.RADHIKA KRISHNAN, BLOCK MEMBER,UZHAVOOR BLOCK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 3. PREMA VIJYAN,W/O.VIJYAN, CHERUSHERRIYIL,CHEMBULAVU KARA, KIDANGOOR VILLAGE,KOTTAYAM. R2 BY PUBLIC PROSECUTOR SRI. P.R. JAYAKRISHNAN R1 BY ADV. SRI.RAJESH THOMAS THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rkc V.K. MOHANAN, J. --------------------------------------- Crl. R.P. No. 8 of 2010 --------------------------------------- Dated this the 30th day of January, 2010 O R D E R The challenge in this Criminal Revision Petition is against the order No. A2- 4212/2007 dated 22-04-2008 issued by the Sub Divisional Magistrate Pala who is not a party in this Criminal Revision Petition. As per the said order the petitioner was restrained from making of bricks and operating other similar works in his property. 2. According to the revision petitioner he has got valid license for the operation and conducting bricks kilns, issued by Kidangur Grama Panchayath and had valid mining permit obtained from the Mining and Geology Department. His further case is that he has not given any opportunity, either at the time of final hearing or even at the time of the preliminary order passed by said officer. CRRP No. 8/2010 2 3. This court, on admission of the above revision petition called for the records from the R.D.O. Pala, connected with the impugned proceeding. From the records it appears that the proceedings were initiated on the basis of mass complaint mooted by the first respondent who is the member of Uzhavur Block Panchayath and the said petition filed for and on behalf of the people residing in Ward Nos. 6 and 8 of the Kidangoor Grama Panchayath. It is seen that in the said petition, the name of the petitioner is not shown. As per Section 133 of CrPC, if a nuisance in public brought to the notice of District Magistrate or any other Executive Magistrate such officer can pass a conditional order for the removal of nuisance on his satisfaction of the allegations and grounds raised before him. In the present case according to the revision petitioner, he was not served with conditional order as contemplated by Section 133 of CrPC. On verification of the records especially on perusal CRRP No. 8/2010 3 of Exhibit R1 (A) it appears that there is an endorsement on the back page of Exhibit R1 (A) to the effect that the notice is received on the date shown therein which read as 15-12-2007. It is true that in Exhibit R1 (A), the address of the revision petitioner is incorporated but according to the learned counsel and the revision petitioner, the signature shown on the reverse of Exhibit R1(A) is not of the revision petitioner. I have verified the signature from the available records in this case which are admittedly that of the revision petitioner. On such comparison and verification it appears to me that the signature that shown on Exhibit R1 (A) is not tallying with the signature that seen in the memorandum of revision petition and the affidavit filed by revision petitioner. But from proceedings of the Sub Divisional Magistrate Pala and especially the documents dated 26- 03-2008 and 16-04-2008 that the revision petitioner was present on those days. But Annexture R1 (A) stop memo CRRP No. 8/2010 4 is dated 15-12-2007 and there is nothing to show that the petitioner had appeared consequent to the service of preliminary order if any. Under the above factual situation this court cannot discard the contentions of the petitioner that the impugned order was passed behind his back 4. More over the impugned order appears to be not in accordance with any legal provisions and procedure. On a perusal of final order, it is not clear under what provision the said order was passed. There is nothing to infer that the petitioner was heard and he was given opportunity to substantiate his objection and grievance if any. It is also clear from the order that the officer concerned miserably failed to refer to the objection of the revision petitioner. In the absence of proper discussion, especially the probable objection of the revision petitioner, it cannot be said the impugned order is a speaking order. For the above reason also the impugned CRRP No. 8/2010 5 order is liable to be set aside. This fact itself is sufficient to hold that the petitioner was not given an effective opportunity to substantiate his care and thus order is vitiated as the same is issued in violation of the principles of natural justice 5. In this juncture it is relevant to note that there is no finding by the statutory authority after considering grievance raised in the petition as well as the objection of the revision petitioner. Therefore this court is not in a position to enter into a finding regarding the merits or demerits of the order impugned. Therefore it is just and proper to set aside the impugned order and to remand the matter for fresh disposal after giving amble opportunity to the revision petitioner to substantiate his case and also the aggrieved parties before the Sub Divisional Magistrate. 6. In the result the Order dated 22-04-2008 of the CRRP No. 8/2010 6 Sub Divisional Magistrate, Pala is set aside. The matter is remanded back to the Sub Divisional Magistrate for fresh consideration after giving sufficient opportunity to the revision petitioner as well as the petitioner before the R.D.O. on the basis of which the proceedings was initiated. It is made clear that the proceedings shall be continued from the stage of a preliminary order passed by the Sub Divisional Magistrate under Section 133(1) of Cr. PC. There will be direction to the Sub Divisional Magistrate, Pala to dispose of the matter as expeditiously as possible, at any rate within 3 months from the date of receipt of a copy of this order. The petitioner is directed to produce a copy this order, within one month from today. V.K. MOHANAN, JUDGE rkc