JIBU SIMON Vs. MEENAKSHI AMMA

JUDGEMENT

(1.) FIRST respondent is the owner in possession of 77. 60 ares of land in Survey No. 307/16 Anikkadu Village. There is a residential house in the plot. Part of the land is cultivated. The adjoining land on the south and west comprising of survey Nos. 307/13, 307/14 and 307/15 belonging to the other branches of her family. She filed a complaint petition before the Sub divisional Magistrate, Thiruvalla stating that the counter petitioners therein were conducting quarrying operations in that property and blasting rocks using high explosives like jelatin sticks and jack hammer and it was causing unbearable nuisance. According to the complaint it affected animal life also. Her residential building was developing cracks due to the use of the explosions. On receipt of the complaint, the Sub Divisional Magistrate initiated action under S. 133 Cr. P. C. and issued a conditional order and notice to the counter petitioners in the complaint. Petitioner herein was the first counter petitioner. He was quarrying rocks on the basis of some arrangements with the other counter petitioners. He filed his objections. After hearing the parties, the Sub Divisional Magistrate passed an order making the conditional order absolute. This revision is filed challenging the order.

(2.) 1 have heard learned counsel for the petitioner and the first respondent. I have also heard learned Public Prosecutor and perused the records in M. C. No. 36/99 on the file of the Sub Divisional Magistrate. The Sub divisional Magistrate has made the conditional order absolute mainly on the ground that the re vision petitioner did not have a valid licence for quarrying operations or for using explosives. According to the revision petitioner, he had the necessary licence and permits and they were produced before the Sub divisional Magistrate. However, the Sub Divisional Magistrate has noted that the Form 22 licence produced by the petitioner was for operations in a village in Kottayam District. The No Objection Certificate was also for a quarry in kottayam District. So, according to the Sub Divisional Magistrate, those documents were irrelevant. It appears that the documents produced were permits or licences for storing the explosives. The question whether the blasting operations are conducted with proper licence will be a matter for consideration. But that cannot be the criterion for deciding an action under s. 133 Cr. P. C. The jurisdiction to invoke S. 133 Cr. P. C. arises when the conduct or any trade or occupation amounts to a public nuisance or is injurious to health or physical comfort of the community. So, the Magistrate should have given a finding as to whether the conduct of the revision petitioner or other counter petitioners amounted to a public nuisance justifying action under S. 133 cr. P. C. The existence of a lease or licence under the Mining Rules or a permit under the Explosives Act alone cannot be the criterion though it may be one of the relevant factors. The Sub Divisional Magistrate has not considered whether the conduct of the quarry or the operations amounted to a public nuisance within S. 133 Cr. P. C. justifying an action. So, the order passed by the Sub divisional Magistrate has necessarily to be set aside directing fresh consideration to examine whether the conditions in S. 133 Cr. P. C. exists. It is submitted that a civil suit, O. S. No. 711/98 instituted by the first respondent is pending in the Munsiff's Court, Thiruvalla. But no orders have been passed therein. The pendency of the suit is no bar for exercise of jurisdiction under s. 133 Cr. P. C. , but any considered order passed by the civil court will be binding on the parties and must be adhered to. For the reasons stated above, this revision petition is allowed. The order passed by the Sub Divisional Magistrate on 2. 6. 1999 under s. 138 Cr. P. C. is set aside and the matter is remanded for fresh consideration in accordance with law. In the meantime, there will be an interim direction to the revision petitioner and other counter petitioners not to use any high explosives for quarrying purposes. . .