IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 11TH DAY OF MARCH 2010/20TH PHALGUNA 1931 Crl.MC.No. 175 of 2007 ( ) -------------------------- CASE M7.388/07 OF DISTRICT MAGISTRATE COURT, ERNAKULAM PETITIONER/COUNTER PETITIONER: -------------------------------- THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, 29/1298- A MANGALYA VAIDYA MADOM, VYTILLA. BY ADVS.SRI.THOMAS ANTONY SRI.TITUS MANI SRI.S.SURAJ (PALATHANATHU) COMPLAINANTS/PETITIONER & STATE: ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. THE MARADU GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MARADU, ERNAKULAM. ADDL.R3 IMPLEADED R3.SACHU.T.RUSSAK, PROPRIETOR, M/S.SIGNPOST MEDIA, KALAMASSERY. [IMPLEADED AS ADDL.R3 AS PER ORDER DTD.16.6.2008 IN CRL.M.A.3092/2008 IN CRL.M.C.NO.175/2007] BY ADV. SRI.ELVIN PETER P.J. BY ADV. SRI.ASP.KURUP BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-03-2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------- Crl.M.C.No. 175 of 2007 ------------------------------------------- Dated this the 11th day of March, 2010 ORDER This petition is filed to quash Annexure-I, III and IV. 2. Annexure-I is an order passed under Section 133 of the Code of Criminal Procedure ('the Code' for short) against petitioner who is the Project Director, National Highway Authority, directing him to accord sanction to the installation of street light posts from Madavana to Kannadikkad within 24 hours or to appear before the District Magistrate and show cause why the order shall not be enforced. It is seen from the order, Annexure-I that the sanction ought to be given to the Maradu Grama Panchayat, as per the letter of the Secretary of Maradu Grama Panchayat. 3. It is alleged that National Highway Authority caused an obstruction to the installation of street light posts from Madavana to Kannadikkad by denying sanction to the same. Annexure-III is an order passed under Section 142 (1) of the Code by the District Magistrate stating that the nuisance mentioned in the order Annexure-I dated 5.1.2007 is attended with such imminent Crl.M.C.No. 175 of 2007 2 danger or injury of a serious kind to the public as to render necessary immediate measures to prevent such danger or injury. The petitioner is directed to forthwith accord sanction to the Secretary, Maradu Grama Panchayat for installation of street light posts, within 24 hours, pending result of the enquiry from Madavana to Kannadikkad. 4. Annexure-IV is a letter addressed by the Secretary to the District Collector stating that the National Highway Authority has not accorded sanction for installation of street light posts from Madavana till Kannadikkad and requesting the District Collector to take necessary action to make available sanction or to accord sanction. 5. Learned counsel for petitioner argued that permission can be obtained from the National Highway Authority only by submitting an application with the plans and other requirements under Rule 6 of the Highways Administration Rules, 2004. The permission can be granted only after verifying the proposal by the competent authority of National Highway Head Quarters at New Delhi. Therefore, Annexure-I order and proceedings initiated by District Collector are illegal and without jurisdiction. Crl.M.C.No. 175 of 2007 3 It is also submitted that petitioner has no authority to accord sanction to respondents for installation of street light posts as directed in Annexure-III order. 6.Petitioner had pointed out in Annexure-II statement filed by District Collector that respondent-Panchayat has no legal right to enter National Highway or to do any work without the prior permission of National Highway Authority of India. Under Section 27 of the National Highway Authority of India Act,1988 ('the Act' for short), all employees of the Authority are public servants. So by virtue of Section 28 of the Act, no proceedings shall lie against petitioner, who is an employee of the Authority, it is submitted. The respondent-Panchayat has not filed any application as per law before the National Highway Authority of India and hence they cannot put up street lights, it is pointed out. Therefore, the entire proceedings initiated against petitioner are illegal and unsustainable, it is argued. 7. Though this case was posted on two occasions for hearing the respondent-Panchayat there was no representation. The petitioner was heard and the case was posted to this day for hearing the respondent-Panchayat. There is no representation for Crl.M.C.No. 175 of 2007 4 respondent today also. Annexure-I and III are orders passed by District Magistrate under Sections 133, 142(1) of the Code. Section 133 of the Code shows that whenever a District Magistrate etc. on receiving the report of a police officer or other information (in this case the information is as per Annexure-IV letter). The Magistrate may make a conditional order requiring the person causing such obstruction or nuisance within a time to be fixed in the order to remove such obstruction or nuisance. 8. But, such an order shall be passed on taking evidence (if any) and the District Magistrate considers that any lawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public. The order which could be passed by the District Magistrate under Section 133(1)(a) of the Code is to remove the obstruction or nuisance from the public place or from any way etc. which is or may be lawfully used by the public. 9. In this case as per Annexure-IV, the information given by the Panchayat to the District Magistrate, nothing is stated that there is any unlawful obstruction or nuisance caused by any person as stated in Section 133(1)(a) of the Code. Therefore, Crl.M.C.No. 175 of 2007 5 the District Magistrate cannot pass any order under Section 133 (1)(a) of the Code. It is also to be noted that the District Magistrate has passed an order according sanction to install electric post in the National Highway. Such a direction cannot be issued under the provision contained in Section 133 of the Code. 10. On a reading of sub clause (a) to (i) of Section 133 of the Code, the District Magistrate can pass an order under Section 133 only if from the information the District Magistrate is satisfied that any act is committed as would attract sub clause (a) to (f) in Section 133 (1). The orders which could be passed by the District Magistrate are as stated in Section 133 (1)(i) to (vi). On the basis of Annexure-IV no order can be passed under Section 133 of the Code and the order passed in Annexure-1 is illegal and without any jurisdiction. 11. From a reading of Section 142(1) it is clear that an injunction order can be passed against a person against whom an order is passed under Section 133 of the Code. But, such an order can be passed only to prevent imminent danger or injury of a serious kind to the public. Since the order under Section 133 itself is illegal and without jurisdiction, order under Section 142 Crl.M.C.No. 175 of 2007 6 (1) also will not be sustainable. Hence, Annexure-III order is also liable to be set aside. The next prayer is to quash Annexure- IV. It is only a letter which cannot be set aside. 12. In the result, the following order is passed. Annexure-I and III are set aside. This petition is allowed. K.HEMA, JUDGE cms