IN THE HIGH COURT OF JUDICATURE AT PATNA
                           Cr.Misc. No.34373 of 2009

1. Vodafone Essar Specetel Limited, a Public Limited company, C-48, Okhla
Industrial Area, Phase II, New Delhi and its Branch Office at 4th Maharaja
Kameshwar Complex, Fraser Road, Patna through Sri Ranjan Kumar, son of Sri
V.N.Singh, 171-A/2, Patliputra Colony, G.D.Mishra Path, PS Patliputra, district
Patna.
2. Sri Ranjan Kumar, son of Sri V.N. Singh, 171-A/2, New Patliputra Colony,
G.D. Mishra Path, PS Patliputra, district Patna - petitioners.
                                      Vs.
   1. The State of Bihar,
   2. Saket Chandra Sameyar, Advocate,Mohalla Naya Tola, Madhopur, PS Kotwali,
      Dist. Munger.
   3. Smt. Sunita Sinha, wife of Sri Ajay Kumar Sinha, Mohalla Naya Tola,
      Madhopur, PS Kotwali, District Munger - opp. parties.



2     7.1.2010

Heard learned counsel for the petitioners and the counsel appearing on behalf of the State.

This application has been filed for quashing the order, dated 14.2.2009 passed by the Subdivisional Magistrate, Sadar, Munger in Case No. 23(M)/2009 by which the Magistrate has stayed the construction of tower of Vodafone Essar Specetel Limited, a public limited company.

The grounds for passing the order is a complaint petition contained in Annexure 3 was filed in which there is grievance by the residents of the locality that the installation of the tower involves use of a diesel generator which emits foul fuels and is also very noisy which disturbs the residents of the locality. The petitioner company has been asked to file a show cause on 24.2.2009.

Learned counsel for the petitioner submits that the Company is a licensee by the Central Government in the Ministry of Communication & Information Technology, Department of Tele- communication, Wireless Planning and Co-ordination Wing. 2 Annexure 1 is a certificate by the Bihar State Pollution Control Board under the Water Prevention & Control Of Pollution Act, 1981. It is submitted that the petitioners utilize a silent generator and it has wrongly been stated that the generator used by the petitioners emits foul smell and emits fuel.

The main contention on behalf of the petitioners is that section 133 of the Code envisages that the District Magistrate or the Subdivisional Magistrate or any other Executive Magistrate empowered by the State Government should receive a report from the police or other information and on taking evidence if he things fit, should pass orders as envisaged under section 133 of the Code.

In this case it is submitted that before passing the prohibitory order the Subdivisional Magistrate ought to have held an enquiry and ascertained the facts.

It is stated that the petitioners have already filed a show cause before the Subdivisional Magistrate. However, the matter is pending and no steps have been taken to hear the matter, which is rather unfortunate.

Considering the nature of the case in hand, I direct the Subdivisional Magistrate, Sadar, Munger to hold an enquiry in the matter in presence of the petitioners and pass an order in this case the Court should take evidence if necessary, and also look into the documents produced on behalf of the petitioners within a period of two months from the date of receipt / production of a copy of this order.

This application is disposed of with the aforesaid observations.

It is made clear that if the Subdivisional Magistrate, Sadar, Munger does not pass an order in the case within the aforesaid two months, the order impugned dated 14.2.2009 shall remain stayed.

haque                                       (Sheema Ali Khan, J.)