IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 Crl.MC.No. 3610 of 2011(A) ------------------------------------- REF.A.6838/2011 ON THE FILE OF THE SUB DIVISIONAL MAGISTRATE , KOZHIKODE. ........................................... PETITIONER(S) : ----------------------- YESODHA,NADUKANICHALUPARAMBIL HOUSE, MOILOTHARA.P.O,MARUTHONKARA,VADAKARA, KOZHIKODE. BY ADV. SRI. T.G.RAJENDRAN RESPONDENT(S) : ------------------------ 1. K.K.GOPALAN,CHUNDAKUNNUMMAL HOUSE, WARD NO.4, MOILOTHARA.P.O, 673 021 MARUTHONGARA, VADAKARA TALUK, KOZHIKODE. 2.THE SECRETARY,MARUTHOMKARA GRAMA PANCHAYATH,VADAKARA, KOZHIKODE, 673 001. 3. SUB DIVISIONAL MAGISTRATE, KOZHIKODE, 673 001. 4. EXECUTIVE MAGISTRATE, VADAKARA , 673 001. 5. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, KOCHI-682031. R1 BY ADVS. SRI. A.MOHAMED MUSTAQUE SRI. U.P. BALAKRISHNAN R2 BY ADVS. SRI. B. KRISHNAN SRI. R. PARTHASARATHY R3 TO R5 BY PUBLIC PROSECUTOR SMT. JASMINE. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: NS Crl.MC.No. 3610/ 2011 APPENDIX PETITIONER(S) ANNEXURES ; ANNEXURE I : COPY OF THE LICENCE DATED 18.5.2010 ISSUED BY THE 2ND RESPONDENT. ANNEXURE II ; COPY OF THE ORDER IN W.P.C.25402/11 OF THIS HON'BLE COURT. ANNEXURE III ; COPY OF THE ORDER DATED 1.9.2011 ISSUED BYTHE 3RD RESPONDENT. RESPONDENT(S) ANNEXURES : NIL / TRUE COPY / P.A. TO JUDGE NS N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.3610 of 2011 ---------------------------------------------------- Dated this the 21st day of December, 2011 Order The petitioner was conducting a piggery in her property. The learned counsel for the petitioner submits that it was being run from 2008 onwards. The neighbouring owners objected the running of the same on the ground that it is causing nuisance as it was stated to be posing great health hazards. It is also stated that the Panchayat had issued a stop memo against the running of the piggery by the petitioner. That was challenged before this court. The question is not whether it is run as per the licence issued by the Panchayat or not, but whether the running of the piggery causes public nuisance. 2. The SDM initiated action based on the complaint given by the first respondent who is one of the neighbouring owners, an affected party. The learned counsel for the first respondent submits that an inspection was conducted by the Village Officer and a report was filed. Pursuant to the complaint given by the first respondent, Annexure III order was passed by the SDM Crl.M.C.3610/2011 2 where it was stated that the piggery mentioned above run by the petitioner herein creates pollution and thereby public nuisance. The SDM directed the petitioner herein to stop the piggery or to appear before the Tahsildar and Executive Magistrate, Vatakara on 2.11.2011 at 2 PM and to show cause why the aforesaid order should not be enforced. 3. The learned counsel for the petitioner submits that the SDM has no jurisdiction to direct the Tahsildar and Executive Magistrate to conduct enquiry or to receive the objections, if any. That submission has been countered by the learned counsel for the petitioner pointing out that Section 133(1) itself makes it clear that the SDM can direct the counter petitioner in the M.C. to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order and to show cause why the order should not be made absolute. Therefore, a reading of Section 133(1) itself is clear on the point that the SDM can direct a party to appear before the Executive Magistrate. Therefore, the petitioner is bound to appear before the Tahsildar/Executive Magistrate, Vatakara. 4. The petitioner will appear before the Tahsildar/Executive Crl.M.C.3610/2011 3 Magistrate within two weeks from today and show cause why the order should not be made absolute. If the petitioner files objection/explanation to the show cause notice, the Tahsildar/Executive Magistrate will forward the same to the SDM, Kozhikode who will conduct enquiry as provided under Section 133 to 137 and other provisions of the Cr.P.C. The Crl.M.C. is disposed of as above. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.3610/2011 4