IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                             THE HONOURABLE MR.JUSTICE K.HARILAL

                 FRIDAY,THE 11TH DAY OF OCTOBER 2013/19TH ASWINA, 1935

                                        Crl.Rev.Pet.No. 1937 of 2013 ()
                                             --------------------------------
                            AGAINST THE ORDER NO. C3 - 19731/2011 OF
                      THE EXECUTIVE MAGISTRATE/TAHSILDAR, VADAKARA
                                                   ---------------------

REVISION PETITIONER/RESPONDENT :
---------------------------------------------------------

            SATHEESAN V.V.,
            S/O.BHASKARAN, AGED 36 YEARS, VLIYAVEETTIL HOUSE
            PROPRIETOR, ANASWARA WOOD INDUSTRIES, CHELAKKAD
            VADAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673506.

            BY ADV. SRI.V.N.SASIDHARAN

RESPONDENTS/STATE AND PETITIONER :
---------------------------------------------------------------

        1. STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR
            HIGH COURT OF KERALA, ERNAKULAM.

        2. DILEEP KUMAR
            ANAREMPATH, KUTTIPURAM, NADAPURAM VILLAGE
            VADAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673506.


            R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN
            R2 BY ADV. SRI.P.V.KUNHIKRISHNAN


            THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
            ON 11-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:


Mn


                                                                                 ...2/-

Crl.Rev.Pet.No. 1937 of 2013 ()


                                   APPENDIX



PETITIONER'S ANNEXURES :


ANNEXURE A1      : COPY OF THE PERMANENT CERTIFICATE OF REGISTRATION
                   UNDER THE SSI SCHEME ISSUED BY THE MANAGER, DISTRICT
                   INDUSTRIES CENTRE, KOZHIKODE TO THE PETITIONER DTD.
                   30.9.2006.


ANNEXURE A2        COPY OF THE LICENSE NO. 164/06-07 ISSUED BY THE
                   SECRETARY, NADAPURAM GRAMA PANCHAYAT DT. 7.7.2006.


ANNEXURE A3        COPY OF THE NO OBJECTION CERTIFICATE NO. T-1317/2004
                   ISSUED BY THE DFO, KOZHIKODE DTD. 5/5/2004.


ANNEXURE A4        COPY OF THE RECEIPT OF PAYMENT OF PROFESSIONAL AND
                   BUILDING TAX NO. 77958 BY THE PETITIONER DTD. 12/4/2007.


ANNEXURE A5        COPY OF COMPROMISE PETITION FILED IN OS NO. 18/12 OF
                   MUNSIFF'S COURT, NADAPURAM DTD. 5/3/2013.


ANNEXURE A6        CERTIFIED COPY OF THE ORDER NO. C 19731/2011 ISSUED BY
                   THE EXECUTIVE MAGISTRATE DTD. NIL.


ANNEXURE A7        COPY OF THE RECEIPT NO. FC3 1881/09 ISSUED BY THE CHIEF
                   FOREST CONSERVATOR, THIRUVANANTHAPURAM DTD.
                   13/10/2009.


ANNEXURE A8        COPY OF THE INTERIM ORDER IN WP(C) NO. 18971/12 OF THE
                   HON'BLE HIGH COURT DTD. 10/12/2012.


ANNEXURE A9        COPY OF LETTER TO THE DISTRICT ENVIRONMENTAL
                   ENGINEER, KERALA STATE POLLUTION CONTROL BOARD,
                   KOZHIKODE SENT BY THE PETITIONER DTD. 25/2/2013.


ANNEXURE A10       COPY OF THE LETTER SENT TO THE EXECUTIVE MAGISTRATE
                   BY THE PETITIONER DTD. 6.9.2013.




                                                                      (Contd...)

Crl.Rev.Pet.No. 1937 of 2013 ()




ANNEXURE A11       COPY OF THE ACKNOWLEDGEMENT LETTER FOR THE
                   CERTIFICATE OF CONSENT, SENT TO THE PETITIONER BY THE
                   ENVIRONMENTAL ENGINEER, KOZHIKODE, KSPC BOARD DTD.
                   14/6/2013.


ANNEXURE A12       COPY OF THE LICENSE NO. WB1/KKD/KTY/CAT.02/GI-5001/12
                   ISSUED BY DIVISIONAL FOREST OFFICER, KOZHIKODE TO THE
                   PETITIONER DTD. 24.09.2013.




RESPONDENT'S EXHIBITS :         NIL



                                                              //TRUE COPY//




                                                              P.A. TO JUDGE

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                     K.HARILAL, J.
                     -----------------
              CRL.R.P.NO.1937 OF 2013
              -------------------------------
       Dated this the 11th day of October, 2013

                         ORDER

The Revision Petitioner is the respondent in a proceedings under Section 138 of the Cr.P.C. before the Executive Magistrate, Vatakara in the proceedings No.C3-19731/2011. The above proceedings were initiated on a complaint filed by the 2nd respondent herein. The case of the 2nd respondent herein is that the Revision Petitioner is running a saw-mill and a manufacturing unit of furniture. The 2nd respondent has been affected by dust and sound pollution due to the functioning of the above said manufacturing unit situated nearby the residence of the 2nd respondent. Consequent on the complaint, a conditional order was passed under Section 133 of the Cr.P.C. by the Executive Magistrate on 26/09/2012. But, the Revision Petitioner appeared before the court through counsel on 15/10/2012 and the case was adjourned, for filing counter affidavit, to  CRL.R.P.NO.1937 OF 2013 2 26/11/2012. According to the Revision Petitioner, the conditional order was made absolute without hearing the revision petitioner and passed the impugned order under challenge in this Revision Petition.

2. The learned counsel for the Revision Petitioner, in support of the grounds raised in the memorandum of Revision Petition and Annexures A1 to A12 produced along with this Revision Petition, submits that the Revision Petitioner has already obtained all statutory licences and no objection certificates from the concerned authorities and he has the right to conduct the said manufacturing unit. But, the Revision Petitioner was not being heard in the matter nor has he been given an opportunity to adduce evidence before passing the impugned order. It is also stated that no notice was served on the petitioner either on 26/11/2011 or any subsequent date regarding the posting of the case by the Executive Magistrate and impugned order is passed ex- parte. He was deligent in prosecuting his case before the Executive Magistrate.

CRL.R.P.NO.1937 OF 2013 3

3. Per contra, the learned counsel for the 2nd respondent submits that the Revision Petitioner had been given sufficient time to adduce evidence. According to the 2nd respondent even now the Revision Petitioner has not obtained the consent of the Pollution Control Board to run the manufacturing unit and instead of it the pollution control board has already issued notice dated 7/02/13 directing the Revision Petitioner to close down the manufacturing unit and the above direction was issued under Section 31 of AIR (Prevention & control Pollution ) Act 1981. In short, the Revision Petitioner was not deligent in the proceedings. Even in this writ petition also though the Revision petitioner has produced some other licences and no objection certificates , the Revision petitioner has not produced the copy of the consent letter said to have been issued by the Pollution Control Board.

4. Going by the impugned order it could be seen that the revision petitioner entered appearance in the proceedings on receipt of the notice dated 26/09/2012 calling upon him to appear before the Executive  CRL.R.P.NO.1937 OF 2013 4 Magistrate and to show cause why the proceedings under Section 133 of the Cr.P.C. shall not be initiated against him. On receipt of the notice on 15/10/2012 the Revision Petitioner entered appearance through his counsel and prayed for adjourning the case; but, on 5/1/2012 he sought for time for filing a counter statement, and the case was posted to 26/11/2012. On 26/11/2012, it was again adjourned to 3/1/2013 and thereafter to 6/2/13, 13/3/13, 17/4/13 and 27/4/13 respectively. But the Revision Petitioner did not appear before the court on these posting dates, nor did he file a counter statement. There upon, again another notice was issued calling upon him to appear on 19/06/2013 and on that day also he didn't appear before the Executive Magistrate. But, the 2nd respondent appeared before the Executive Magistrate and produced copy of a letter issued by the Secretary of Nadapuram Grama Panchayath stating that no licence has been issued to the Revision Petitioner to run a manufacturing unit. Thereafter on the basis of the available evidence on record, the Executive Magistrate  CRL.R.P.NO.1937 OF 2013 5 passed the impugned order and made the conditional order absolute.

5. Going by the proceedings, narrated in the impugned order I cannot find any fault with the Executive Magistrate in passing the impugned order under challenge. On the other hand I find that the Revision Petitioner was too much negligent and he has not interested to prosecute the matter before the competent authority under law. The learned counsel for the Revision Petitioner prayed for an opportunity to contest the matter again on the merits before the statutory authority. Though, I cannot find any fault with the proceedings under which the impugned order has been passed, for the interest of substantive justice to both parties, I am inclined to grant one more opportunity to the Revision Petitioner to prosecute the matter before the competent authority on conditions. The impugned order will stand set aside on compliance of the following conditions.

i. The Revision Petitioner shall pay a cost of Rs.10,000/- to the 2nd respondent within a period of two  CRL.R.P.NO.1937 OF 2013 6 weeks from the date of receipt of copy of this order and produce receipt thereof before the Executive Magistrate.

ii. The Revision Petitioner shall not operate his manufacturing unit till the termination of the proceedings after re-opening of the same.

6. If the Revision Petitioner satisfies the above conditions within the specified period, the Executive Magistrate shall re-open the proceedings again on the files and proceed in accordance with law, and pass final order afresh, after affording sufficient opportunities of being heard to both parties, at any rate within a period of two months from today.

This Revision Petition is disposed of accordingly.

Sd/-K.HARILAL JUDGE OKB/MJL