IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 25525 of 2006(L)
1. J.PUSHPANGATHAN, PROPRIETOR,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
2. KADINJANKULAM GRAMA PANCHAYAT,
3. THE DIRECTOR OF INDIGENOUS,
4. O.GEETHA, GEETHANJALI MADAM,
For Petitioner :SMT.V.P.SEEMANDINI
For Respondent :SRI.P.B.SURESH KUMAR
The Hon'ble MR. Justice R.BASANT
Dated :05/12/2006
O R D E R
R.BASANT, J
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W.P.C.No.25525 of 2006
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Dated this the 5th day of December 2006
O R D E R
The petitioner has come to this court, aggrieved by Ext.P3 order
dated 30/08/2006, which on the face of it states that it is an order
under Chapter 10B of Section 133 Cr.P.C. The petitioner has come to
this court alleging that the order is grossly illegal and does not comply
with the terms of Chapter 10B. The petitioner came to know after the
writ petition was filed that the District Collector has subsequently
withdrawn Ext.P3 order but have chosen to issue a fresh conditional
order under Section 133 Cr.P.C. A copy of that order dated
25/09/2006 is produced as Ext.R4(a) by the respondent and as Ext.P7
by the petitioner. The respondent, District Collector proceeded
simultaneously to pass a further order under Section 142 Cr.P.C (a
copy of which is produced as Ext.R4(b)).
2. The dispute is about the conduct of a workshop by the
petitioner. A neighbour, respondent No.4 is running an Ayurvedic
Hospital adjacent to the said workshop. She complained of nuisance
and approached the District Collector. It is thereupon that Ext.P3 as
well as Exts.R4(a) and R4(b) orders have been passed by the District
Collector.
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3. The learned counsel for the petitioner submits that the
petitioner is willing to appear before the District Collector, in
accordance with the provisions of Chapter 10B. He only prays that
the order of injunction under Section 142 Cr.P.C (copy of which is
produced as Ext.R4(b) may be suspended and the District Collector
may be directed to pass a fresh order under Section 142 Cr.P.C, after
hearing both parties.
4. The learned counsel for the petitioner submits that Ext.R4
(b) order and the application filed by the petitioner before the District
Collector are vitiated in as much as they do not make any mention of
Ext.P2 order passed by the Ombudsman for Local Self Government
Institutions. That clearly shows that the Ombudsman had called for a
report of the Pollution Control Board and the report was placed before
the Ombudsman who did not pass any orders restraining the
petitioner from continuing with the running of his workshop. That
order is seen passed on 17/05/2006. But when the petitioner moved,
the District Collector with Ext.P8 petition on 01/08/2006, significantly
and surprisingly, no mention whatsoever was made of the earlier
proceedings which culminated in Ext.P2 order in which proceedings
the report of the Pollution Control Board had been obtained. I find
merit in the submission of the learned counsel for the petitioner that
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bonafides is not an attribute that one can discover or invent in the
hands of the petitioner. In having suppressed information about
Ext.P2 order in the subsequent application filed by the fourth
respondent before the District Collector, it is eloquent that the fourth
respondent wanted to steal an order from the District Collector
without revealing the crucial and vital facts.
5. Be that as it may, I do not intend to express any final
opinion on any other disputed question. I am satisfied that there is
merit in the submission of the learned counsel for the petitioner that
Ext.R4(b) order dated 25/09/2006 under Section 142 Cr.P.C deserves
to be set aside now. The District Collector, that is respondent No.1,
needless to say, shall be entitled to proceed further with the
proceedings initiated under Section 133 Cr.P.C. If it be necessary, he
shall of course be entitled to pass appropriate further orders under
Section 142 Cr.P.C also. But such order can be passed now only after
hearing the petitioner and giving him an opportunity to raise all his
contentions.
6. In the result, this writ petition is allowed. Ext.R4(b) order
dated 25/09/2006 passed by the first respondent under Section 142
Cr.P.C is hereby set aside. If circumstances warranting such course
exist, the District Collector (first respondent) shall be at liberty to
W.P.C.No.25525/06 4
pass appropriate further orders under Section 142 Cr.P.C but only
after hearing the petitioner and considering his contentions. The
parties shall appear before the District Collector on 15/12/2006 to
continue the proceedings.
7. The learned counsel for the fourth respondent submits
that there is no specific request to quash Annexure R4(b). That
technicality cannot certainly restrain this court from passing the
above order invoking the constitutional jurisdiction under Article
226/227 Cr.P.C in as much as the writ petition when it was filed was
filed assailing an identical order under Section 142 Cr.P.C passed by
the District Collector. The respondent shall also be entitled to raise
all his contentions before the first respondent including the contention
that the order of the Ombudsman has not been complied with fully by
the petitioner.
(R.BASANT, JUDGE)
jsr
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R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006