SALLITHO ORES LTD Vs. BHIMAPPA CHANDRAPPA DADUGOL

JUDGEMENT

(1.) This application is directed against the order of the Sub-Divisional Magistrate, dated May 27, 1977, passed under S. 133 Cr. P. C. and directing the petitioner company to stop the excavation in the mining area, so as to prevent any danger to the lives of the inmates. The order reads as under:-

(2.) The order is assailed on various grounds which I shall examine in detail. The records of the Sub-Divisional Magistrate regarding these proceedings are before me. A copy of the Police Report which according to the petitioner forms the basis of the order has been placed on file of this case by the petitioners. There is no other report either from the Police or from any other authority which would cause the Magistrate to form an opinion. The learned Magistrate does not state that it appeared to him that there was a reason for the issuance of the order. What he states at the beginning of the order is that, it has been made to appear to him and in the absence of any other documents on the file it can safely be concluded, as alleged by Shri Kakodkar on behalf of the petitioner, that it was the Police Report that made him pass the impugned order. The report is in the form of a complaint signed by someone and countersigned by the P.S.I. Bicholim, who forwarded it to the Sub-Divisional Magistrate (S.D.M.), the respondent No. 20, with a request that action under S. 133 Cr. P. C. be taken. The said information was throughout treated as a report. It is evident from the report that there was a dispute between the petitioner and 162 labourers including the first 19 respondents regarding leave, wages and bonus for the period they worked, and so on; that the claims of 25 labourers were rejected and of the remaining were granted; that the successful labourers and some of the unsuccessful ones left but the first 19 respondents continued to occupy the hutments in question; that the petitioner then constructed some quarters at some other place for these respondents but they refused to move to the new quarters. It was stated that the hutments in question had to be demolished before the rainy season, to avoid danger to the lives of the first 19 respondents; that the case of the respondents is one regarding leave, wages and not the right to live in company quarters. It was prayed by the complainant in the report that the respondents be ordered to vacate the hutments.It is on the basis of such information or report forwarded by the Police that action under S. 133 was taken, not for demolishing the hutments which were in danger, but to stop the mining operations. The impugned order commands the petitioner to stop the operation within 5 days. The order is dated 26-5-77, and is stated to have been served on the petitioner on 4-6-77, 9 days after the order. It is pointed out to me by Shri Kakodkar that the provisions of Art. 133 require that the court should fix a time within which the order is to be complied with and that this requirement was not satisfied by the order. It is argued that the requirement must be strictly complied with. Reliance is placed on a passage of the Commentaries AIR(on) the Cr. P. C., 1973 (2 of 1974) Vol. 1, by Chitaley and Rao, at page 834. The commentary is based on a decision reported in (1872) 1 Bom PJ 283.

(3.) Next it is argued by Shri Kakodkar that an order under S. 133 must specify clearly the grounds on which it is based and which are mentioned in cls. (a) to (f) of sub-section (1) of S. 133 Cr. P. C. The failure to specify the clause, Shri Kakodkar states, does pet se show non-application of mind on the part of respondent No. 20. Raimohan Karmokar V/s. Emperor,1917 AIR(Cal) 207 is cited in support of this contention. Indeed it is so. If the order could be fitted into any of the clauses, the irregularity might be considered as cured. On examination of the clauses, I find that the facts of this case cannot fit in any clause. Cl. (a) speaks of an unlawful obstruction. Cl. (b) of the conduct of trade or occupation, injurious to physical comfort. Cl. (c) refers to construction of any building. Cl. (d) to any building, tent, structure or tree, Cl. (e) to fencing of any tank, well or excavation adjacent to a public place and Cl. (f) to dangerous animals, Cls. (a), (c), (d), (e) and (f) are irrelevant for the case in hand. The only clause that has to be examined in detail is the cl. (b) which states that if the Magistrate considers that the conduct of any trade or occupation is injurious to physical comfort of the community and that in consequence such trade or occupation should be prohibited, the Magistrate may make a conditional order requiring the person to desist from carrying on such trade or occupation. In Murlidhar Bhila Patil V/s. Onkar Vyankat Patil, 1961 AIR(Bom) 263 the words "is injurious to physical comfort" have been held to require that the injury should be in praesenti and not contingent or possible. My attention is drawn to the words 'may collapse' occurring in the first para of the order. I agree that the order in the present case does not express any urgency enabling the respondent No. 20 to assume jurisdiction. In the order stated that the operation of a flour mill created vibrations and that those vibrations were likely to cause danger to the people residing nearby. It was held that immediate danger was not found. What was found is only a possibility of danger.