1. An order dated 19-1-1985 of the District Magistrate, Dakshina Kannada, exercising his powers under Section 133 of the Criminal Procedure Code is called in question in this Petition filed under Section 482 of the Criminal Procedure Code (the Code).
2. By that order the learned District Magistrate has directed this petitioner to stop immediately the stone quarrying operation which was being done by him in Sl. No. 129/1B and perhaps in the adjoining lands in the village of Kallamundakar of Karkala Taluk and has called upon him to show cause within 10 days from the date of the order as to why that order should not be made absolute.
3. It is mentioned in the order that that direction is given by him under Section 133(l)(b) & (c) of the Code.
3(a). Granite/rock is a mineral and to quarry the same on a commercial scale licence from the State Government is required. Under a licence obtained from the Director of Mines the petitioner has been carrying on quarryingoperations in the area aforesaid. This operation consists of blasting of the rock by dynamiting and cutting of stones, dressing the same etc.
The contention by the learned Addl. State Public Prosecutor, on behalf of the District Magistrate (1st respondent) is that the District Magistrate had received number ofcomplaints from neighboring residents that the quarrying operation by the petitioner was causing great danger to their lives and properties and therefore it should be stopped. The Public Prosecutor says that the blasting of the rock and dressing etc., of the same on such a scale was resulting in stone chips, of all sizes flying over a vast low lying areas wherein houses and fields are situate and that many a time thesechips some bigger ones - had fallen on houses, cattle sheds etc., and had caused a lot of damage to the people.
4. While attacking the validity of the order, the Learned Counsel for the petitioner relies mainly on 3 grounds. He contends that the facts and circumstances of the case do not at all attract either clause (b) or clause (c) of Sub-section (1) of Section 133 of the Code and therefore, the District Magistrate could not have passed the impugned orderpurporting to exercise his powers under the aforesaid provisions. His second ground of attack is that assuming that he had powers to pass an order of this nature under Section 133 of the Code, the order having been issued without complying with the mandatory requirements of that provision (Section 133 of the Code) was bad in law. And his 3rd submission is that in the initiation of this proceeding the District Magistrate has not properly used his judicial discretion, has not applied his mind and that on the other hand has been influenced by outside pressures.
5. Respondents 2 and 3 were impleaded in this proceeding at their instance in view of their plea that they were interested in getting this order sustained. Their Learned Counsel, while denying the contentions made by the Learned Counsel for the petitioner and supporting the order of the District Magistrate submitted that the order has been properly made, that even otherwise since the District Magistrate could have made a similar order under Section 144 of the Code, the same could be sustained, that he had made that order not merely on the representations of the public but also on beingsatisfied that such an order was called for; and that there was no basis or foundation for the submission of the Learned Counsel for the petitioner that the District Magistrate had been influenced by outside pressures in the matter of the initiation of the proceeding against the petitioner.
6. Let me first take up for consideration the last ground urged by the Learned Counsel for the petitioner that the District Magistrate in this matter has been influenced by a prominent person of the area and has not applied his mind or used his discretion properly. In this connection the Counsel drew my attention to some correspondence (available in the file) between the District Magistrate and one of the Members of the Parliament representing this District, who also holds a high executive post in the Central Government. This has reference to a phone talk the Member of Parliament had with the District Magistrate on 7-1-1985 drawing his attention to the representations and complaints he, the Member of Parliament, had received about the working of this quarry and the danger that was said to be causing to theneighboring houses and fields and requesting the District Magistrate to do the needful in the matter. With reference to this talk the District Magistrate has sent a communication to the Member of Parliament dated 16/17-1-1985 (actuallydispatched on 19-1-85) stating that in this connection he had instructed the Sub-DivisionalMagistrate, Kundapur to make a Magisterial enquiry and pass suitable orders and that he had also requested the Director of Mines by a telex and a D.O. letter to cancel the quarrying lease issued in favour of the petitioner so as to avert public nuisance. The office copy of the letter kept in the file shows that it had actually been approved by the District Magistrate on 16-1-1985 itself. In the circumstances of the case and having regard to other facts available, it cannot be said that the District Magistrate had been influenced in the making of this order by the talk the Member of the Parliament had with him. Long prior to 7-1-1985 and in the months of October and November, 1984 the District Magistrate had received communications from the local police (P.S.I., C.I., and others) drawing the attention of the District Magistrate about the danger that the operation of the stone quarry by the petitioner was causing to the neighbouring residents of the village. In one of such communications sent on 16-10-1984 (the original in the file) by the C.I. he has stated that the working of this quarry was causing a great havoc in the neighbourhood and that that work involved blasting of stones by explosives and the broken stone pieces fly away and fall over the neighbouring houses causing damages to the houses, bath sheds etc. He also apprehended breach of peace and had requested the District Magistrate to take appropriate preventive measures in the matter. And some time thereafter, the District Magistrate had addressed letters to the officials of the Geology department to cancel the lease. These facts clearly show that it was not the telephonic conversation by the Member of the Parliament that had prompted the District Magistrate to make this order. And apart from this a Member of Parliament though holding a high executive post in the Central Government will still have to be in touch with the people of his constituency and if the citizens of the constituency bring to his notice their needs and difficulties, he has to attend to the same and take appropriate steps within the bounds of law and without crossing the zone of propriety Some times this consists of his drawing the attention of the concerned local official asking him to do the needful and to take such action as thecircumstances deem fit. In the instant case the member of the Parliament had done only that much and nothing else. That cannot be made much of or complained about. In this case, as already stated, after the Member of the Parliament spoke to the District Magistrate, it appears, the District-Magistrate had directed the Sub Divisional Magistrate, an authority sub-ordinate to him, to enquire into this matter and to takeappropriate action. And thereafter he had sent a communication to the Member of the Parliament drawing his attention to the earlier telephonic conversation informing him as to what was being done. And what he had thought at that stage was only this much, and that was, to direct another Magistratesubordinate to him to probe into this complaint and to take appropriate action. However, immediately thereafter, having come to know that the Sub-Divisional Magistrate, Kundapur was on leave and having regard to the urgency of the matter he (the District Magistrate) himself initiated action and issued an order on 19-1-1985. From the facts of the case it is clear that the communication sent by way of a reply to the Member of Parliament was earlier to his (the District Magistrate)initiating this proceeding. It cannot also, in the circumstances, be said that even after himself deciding to proceed in the matter and having initiated this proceeding and functioning as a judicial authority he had entered into any communication with persons not concerned with this proceeding or parties to this proceeding about the matter involved therein. I am certain that the District Magistrate has not committed any impropriety in this connection. It cannot also be said that having not applied his mind to the facts and circumstances of the case he had initiated this action against the petitioner.
At this stage itself another submission made by the Learned Counsel for the petitioner in this connection may have to be noted. Drawing my attention to an office copy of the letter the District Magistrate had addressed to the Geologist to cancel the lease, the Learned Counsel submitted that it only shows that the District Magistrate had determined to stop the quarrying work and therefore having been personally interested in the case, he should not have himself initiated this action and that this alone would suffice to quash this proceeding.
It is true in a case like this the District-Magistrate has to function as an authority exercising Magisterial (Judicial) powers. But at the same time we should know that unlike in other adversary proceedings, the Magistrates dealing with these cases which involve public nuisance or public health etc., shall have to bear in mind the interests of the public in general and may at times have to act swiftly to avert imminent danger or other hazards. An action under Section 133 of the Code can be taken either by the District Magistrate or by the Sub-Divisional Magistrate either on receiving a report of a Police Officer or on other information available to him. As had been done in the case of Gobind Singh- v. - Shanti Sarup such action can also be taken by the concerned Magistrate on personal knowledge. A conditional order made by the Sub-Divisional Magistrate on personal knowledge in that case under Section 133 of the Code has been upheld by the Supreme Court. Therefore, even if the District Magistrate1. : 1979CriLJ59 it a certain stage being of opinion that it was dangerous to public to operate this quarry had requested the Licensing Authority to cancel the licence that cannot be made a ground to attack the conditional order made by him. (may also see the observations of Krishna Iyer.J. in Municipal Council Ratlam- v. - Vardhichand and others).
7. There is no substance in the first ground urged by the Learned Counsel for the petitioner that the facts of the case do not attract any action either under Clause (b) or (c) of Sub-section (1) of Section 133. Section 133(l)(b) & (c) reads as follows :
'133(1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate speciallyempowered in this behalf by the State Government, on receiving thereport of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers......
a)xxx xxx xxx xxxb) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulatedor such goods or merchandise should be removed or the keeping thereof regulated; or
c) that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or
d) xxx xxx xxx xxxe) xxx xxx xxx xxxf)xxx xxx xxx xxxsuch Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, orkeeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing suck animal or tree, within a time to be fixed in the order...2. : 1980CriLJ1075
i) to remove suck obstruction or nuisance; or
ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove much goods or merchandise, or to regulate the keepingthereof in such manner as may be directed; or
iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or
iv) to remove, repair or support such building, tent or structure, or to remove or support such trees, or
v) to fence such tank, well or excavation; or
vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;
or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.'
8. According to the Learned Counsel for the petitioner quarrying stones is neither a trade nor an occupation ascontemplated under Clause (b) and therefore neither (b) is attracted nor (c). It is true that (c) may not be attracted, but in my opinion (b) is 'Occupation' as defined in the OXFORD English Dictionary means also 'any calling or pursuit' And the word 'trade' as defined in LONGMAN Dictionary of Contemporary English also means 'carrying on a particular business or industry'. In commonparlance any organised work involving machinery etc. does amount to industry. And therefore operating a mine or stone quarry is also described as carrying on a mining or quarrying industry. A mining operation or quarrying stones may either amount to a trade or an occupation within the meaning of clause (b). And therefore, it cannot be said that exercising his powers under these provisions the District Magistrate could not have initiated this proceeding at all.
9. While urging that the order issued even otherwise not being in compliance with the mandatory procedural requirements of the provision was bad in law, it was argued by the Learned Counsel for the petitioners that taking of some evidence before issuing an order was a must and that no such evidence has at all been taken by the District Magistrate in the instant case. And his further submission in this connection is that while directing his client to stop the work he should have fixed some time in the order and by his direction to stop the work forthwith, he had violated the mandatory requirements of the provision. I am unable to agree with him. As the opening words of sub-section (1) of Section 133 shows taking of any evidence before making a conditional order is not obligatory and that is made clear by these words 'if any as he thinks fit' immediately following the words 'on taking such evidence'. Further in my view, the words 'within a time to be fixed in the order' found in sub-section (1) of Section 133 of the Code includes within its scope an order in terms to stop the work forthwith. And forthwith means immediately on receiving the order the quarrying work should be stopped. In this case the direction as to time is specific and that is forthwith, without any delay. And the. words 'within a time to be fixed' do not mean that the authority issuing the order shall have toprovide for a time gap and ask the person concerned to stop the work at a future time, etc. The time factor is three dimensional-past, present and future. Taking effect presently also falls within the scope of the term. These are orders issued to prevent urgent cases of nuisance or other dangers to public life or safety. The law cannot be said tocontemplate in all cases, by any loose construction of the provision, the granting of some time. The impugned order is not open to attack on that ground.
10. As the very order shows, it being one under Section 133 of the Code, it cannot but be only a conditional one. As to how subsequently the concerned authority shall have to proceed in the matter, having regard to the stand taken by the person to whom the notice, will have been issued or direction given is laid down in the following provisions of the Code - Sections 134 to 144. And under whatcircumstances he can make that order absolute is also provided for therein. It is not in this proceeding necessary to deal with those provisions.
11. I have also gone through the impugned conditional order and the facts narrated in the preamble to the order show that the District Magistrate had applied his mind while making this order. However, as already stated, this is only a conditional order and it is open to the petitioner to enter his appearance and raise any objections, he may have to the same. In that case the Learned District Magistrate will objectively assess the material placed by the concerned before him and after holding a proper enquiry and, if need be, obtaining the opinion of an Expert or Specialist in the field will pass appropriate orders in the case. In the course of the enquiry it would also be open to the enquiringauthority to visit the spot in order to ascertain the factual position and to appreciate in a better fashion the facts and evidence placed before it. It need not be emphasised that a case like this shall have to be expeditiously disposed of.
11 (a). I would also like to draw the attention of the enquiring authority that Section 133(1)(b) r/w. Sec. 133(1) clause (ii) does not in terms only enable the stopping of work but also contemplates the regulation of the same.
12. For reasons stated above, at this stage I am not inclined to interfere with the impugned order.
13. The petition, therefore, is dismissed.