Satish Das And Ors vs State Of Tripura And Ors

Heard Mr. S Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. R Datta, learned PP appearing for the respondents.

By means of this revision petition, filed under Section 397 read with Section 401 of the Cr.P.C., the petitioners have challenged the order dated 20.11.2019 passed in the proceeding being case No.01/2018/KLN under Section 133 of the Cr.P.C. by the Sub-Divisional Magistrate, Teliamura, Khowai.

The said order dated 20.11.2019 has been claimed to have served on the petitioners on 07.02.2020. By the said order, it has been observed inter alia that a few members of the public, whose names are disclosed in the order, filed the complaint and on the basis of the said complaint, the due notice was issued on the complainants for appearance on 10.01.2019. Having received the notice, the complainants appeared in person and they have narrated to the Sub Divisional Magistrate, Teliamura, Khowai, Tripura the serious problems faced by them due to the bad smell emitting out of the godown of dry fish maintained by the petitioners. They had also stated that they filed the representation to the Tripura State Pollution Control Board.

It appears from the records that the petitioners had as well appeared before the Sub-Divisional Magistrate and submitted a written reply.

As a matter of abundant caution, the Sub-Divisional Magistrate, Teliamura had requested the State Pollution Control Board for submitted a report on the allegation made by the complainants. The report was received from the Tripura State Pollution Control Board. The Sub-Divisional Magistrate has recorded in the said order as follows:-

"On 05.03.2019 received another report from Tripura State Pollution Control Board, Agartala, Tripura regarding the dry fish go down as mentioned that the matter was discussed in the meeting of Consent Appraisal Committee and it was observed that the said concerned matter is a case of public nuisance and action can be taken against it under Section 268 of the Indian Penel Code 1860 and take necessary action against the said dry fish go down.

Subsequently issued notice against both the parties to appear before the Court on 20.11.2019 at 3.30 p.m. for hearing the matter. Accordingly the complainants of this case present. The opposite party member namely Sri Sudhir Barman, Sri Satish Das and Sri Krishnapada Das present and submitted a petition as mentioned tht the pollution Control Board reported that the bad smell in the locality increases during night time, they also requested that the Pollution Control Board submit a report based on night inspection of said dry fish. The request of the O.P not accepted by the undersigned."

Having considered all these aspects, relevant in context, the petitioners were directed to remove such nuisance within 15 days from the day of receipt of that order. Otherwise, as cautioned, the action will be taken against them as per law. It has been clearly stated that after expiry of the said period, further verification will be conducted by the DCM, Teliamura. The reference was made to the Revenue section to take up the case under Section 187 of the TLR & LR Act. It has been further observed that as follows:

"Order is hereby given that DCM, Teliamura, will take necessary action to remove such nuisance made by the O.P. if it not done by the O.P. themselves within the stipulated period."

Mr. Bhattacharjee, learned counsel appearing for the petitioner has submitted that for passing a conditional order of removing the nuisance, the petitioner is entitled to a show cause even before passing of the conditional order of removal but such notice was not given to him. Mr. Bhattacharjee, learned counsel has further submitted that unless such opportunities are given, no action can be taken on the basis of any report against the persons, alleged of creating the public nuisance and removal of which is considered essential.

In this regard, Mr. Bhattacharjee, learned counsel has made extensive reference to Section 133 of the Cr.P.C dealing with conditional order of removal of nuisance and Section 138 which provides the procedure for issuing the show cause.

This court has considered the impugned order keenly and also the provisions made out in Section 133 of the Cr.P.C. It appears from the impugned order itself that the petitioners have participated in the proceeding and they have submitted their reply in respect of the contemplated action. What the petitioners had asked to the Sub-Divisional Magistrate is to ask the Tripura State Pollution Control Board to measure the standard of such pollution at the night time. But that was not considered by the Sub-Divisional Magistrate.

There is no averment in the entire revision petition that the petitioners ever asked for a copy of the complaint from the Sub-Divisional Magistrate. But in this petition the petitioner has taken the objection that the copy of the complaint was not furnished to the petitioner and that is the reason why they could not enclose a copy of the said complaint. But the petitioners have not stated anything how they had filed their reply.

However, in para 6 the petitioners have averred that in response to the notice dated 27.12.2018 the petitioner submitted a reply on 16.01.2019 (Annexure-04 to the revision petition). The petitioners themselves have submitted a copy of the notice dated 07.11.2019 (Annexure-05 to this revision petition). From the notice dated 07.11.2019 (Annexure-05 of this revision petition), it is apparent that the petitioners were informed about the date of the hearing of the matter. Only thereafter, the said impugned order dated 20.11.2019 has been passed.

In the context of what has been observed before, this court does not find any infirmity in the said order. The petitioners are not supposed to raise any objection regarding non-receipt of a copy of the complaint before the revisional court when they did participate in the proceeding without demur. Even the claim of non-receipt turns not believable.They were supposed to raise that objection when they had received the notice from the SDM.

Be that as it may, it appears that the petitioners were given a full chance of getting knowledge of the allegation. As the allegation is consolidated and simple and not a bundle of complicated facts, that from the store of dry fish, managed by the petitioners, bad smell was emitting out, the plea of the petitioners are unsustainable on that court.

So far the question of giving opportunity of explanation by the petitioners, that has been given adequately by the Sub-Divisional Magistrate. Even, thereafter, Mr. Bhattacharjee, learned counsel has asserted that a conditional order of removal is always subject to verification of the fact whether the nuisance has been removed or not. In this regard, there cannot be any second opinion.

Section 138 of the Cr.P.C. provides that if the person against whom an order under Section 133 is made, appears and shows cause against the order, the Magistrate, shall take evidence of the matter as in a summons case. If the Magistrate is satisfied the order either and only shall be made subject to such modification as he considers necessary and reasonable or proper, or the order shall be made absolute without modification or, as the case may be, with such modification. But if the Magistrate is not so satisfied, no further proceeding shall be taken in the case.

Mr. Bhattacharjee, learned counsel has quite succinctly submitted that the petitioners had received the impugned order on 07.02.2020 and the petitioners have been asked to remove the nuisance within 15 days from the date of receipt, meaning within 22.02.2020, the petitioners are supposed to remove the nuisance as identified in the impugned order dated 20.11.2019.

Within 22.02.2020, the petitioners may make further representation showing reasons coupled with the relevant fact based on which the impugned order dated 20.11.2019 has been passed. The Sub-Divisional Magistrate shall consider the matter in terms of Section 138 of the Cr.P.C. If any modification or vacation is required it is only the Sub-Divisional Magistrate who can make such order in this state. The impugned order is an interlocutory order and, as such, no revision can be entertained. The petitioners are therefore given indulgence to make their representation or any objection in respect of the conditional order within 22.02.2020. Thereafter, the Sub-Divisional Magistrate shall pass the appropriate order on such representation/objection as may be filed by the petitioners.

Accordingly, this petition stands dismissed. No order as to costs.

It is made clear that since 22.02.2020 falls within 15 days as provided by Section 138 of the Cr.P.C. submission of the copy of this order is optional to the petitioner.