LAWS(SC)-1995-3-158

C A AVARACHAN Vs. C V SREENIVASAN

Decided On March 23, 1995
C A Avarachan Appellant
V/S
C V Sreenivasan Respondents

JUDGEMENT

(1.) Leave granted

(2.) Respondent 1 along with another person filed a petition under Section 133 of the Code of Criminal Procedure against the appellant alleging that he wasblasting the rocks in an area on a large scale thereby causing nuisance to the respondents and others. The petition was filed on 21/1/1986. The Sub-Divisional magistrate summoned the appellant to appear before him by an order dated 27/2/198686. Since the Sub-Divisional Magistrate proceeded with the enquiry without drawing up a preliminary order, the appellant approached the High court challenging the proceedings initiated by the learned SDM without drawing up a preliminary order. It was directed by the High court that the objection raised by the appellant be considered and disposed of by the Sub-Divisional Magistrate

(3.) It, however, appears that in spite of the observations of the High court, the Sub-Divisional Magistrate did not draw up the preliminary order and proceeded with the enquiry in the case. During the pendency of the proceedings, a Commissioner came to be appointed, by the consent of the parties, to submit a fact-finding report. On 11/11/1987 when the matter came up before the Sub- divisional Magistrate neither counsel for the appellant nor counsel for the respondents were present. Even the objections to the report had not been filed. We do not know the reason for the absence of the counsel for the parties on that date as the record is silent. However, we find that the Sub-Divisional Magistrate after perusing the report of the Commissioner held that the appellant was causing nuisance from the quarry industry and directed that the quarrying and blasting operations should stop permanently. A direction was issued to permanently close the quarry operations. The matter was taken to the High court by the appellant which noticed that the preliminary order had not been drawn up and even the final order had not been drawn up in the prescribed form, but held that those defects were mere irregularities and did not affect the validity of the proceedings. The order of the Sub-Divisional Magistrate was upheld