State of Goa vs Shri Mustak Ahamad

N.A. Britto, J.—This Writ Petition is directed against the Order dated 10.2.2009 of the Learned Additional Sessions Judge, Panaji. Respondent herein runs a scrap yard in Survey no. 41/1 of Village Ponda and presumably from the year 1987 or thereabout. On the basis of a report from Ponda Police Station dated 16.9.2008, a conditional order dated 17.9.09 was presumably passed in terms of clause (b) of Sub-section 1 of Section 133 of the Code of Criminal Procedure, 1973, against the respondent directing him to remove the scrap yard within eight days or to appear on 26.9.2006 at 3.00 p.m. and to show cause why the order should not be made absolute.

Accordingly, the respondent appeared before the Learned S.D.M. and filed his reply and contended that the scrap material stored was not causing any unlawful obstruction or nuisance in any public place and that the place belonged to him. He also stated that the business carried out by him of the said scrap yard was not injurious to the health of the community and since 1987 there was no complaint of any injury to the health or physical comfort of the community.

On the same day, the Learned Sub-Divisional Magistrate appears to have passed an injunction order in terms of Section 142 of the said Code which was challenged by the respondent before the Learned Additional Sessions Judge in Criminal Revision Application No. 166 of 2008 and it appears that it is wrongly mentioned that the challenge was to the order dated 16.10.2008 and in fact it was to the order dated 26.9.2008 passed u/s 142 of the said Code.

Ms. Coutinho, the learned Public Prosecutor submits that the Learned Additional Sessions Judge had held that the trade activity is being carried out in a private property of the respondent and as such Section 133 of the Code was not attracted to challenge the said finding that the present Writ Petition has been filed.

However, it is seen from the impugned order that the Learned Additional Sessions Judge has directed the Learned S.D.M. to proceed with the inquiry u/s 133 of the Code. Whether the trade or occupation or keeping of any goods or merchandise by the respondent in his private property would be injurious to the health or physical comfort of the community and in consequence thereto the said activity should be prohibited or regulated is a matter which is to be decided by the Learned Sub-Divisional Magistrate in the course of the said inquiry. If at all, the Learned Additional Sessions Judge has interfered with the impugned order dated 26.9.2008 passed u/s 142 of the Code passed by the Learned S.D.M., it is because no notice before passing the said order was given to the respondent and also because there was no urgency in the matter since the activity was going on from the year 1987 or thereabout.

The Learned Additional Sessions Judge, referring to the case of Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, , has observed that before issuing an injunction u/s 142(1) of the Code, notice should ordinarily be issued to a party concerned except in very extreme cases where there could be delay which would result in dangerous consequences by way of injury to the public. The Learned Sessions Judge has observed that justice and fairness had demanded that an order of injunction should ordinarily be issued only after giving an opportunity to the opposite party to be heard in the matter and in the case at hand, there was no material to indicate any dangerous consequences for not issuing the notice. The Learned Additional Sessions Judge had also noted that the impugned order is not reflected in the proceeding sheet and therefore has doubted as to the date as to when it came to be passed.

As already stated, the order dated 26.9.08 of the Learned S.D.M. was interfered with because there was no urgency and for want of notice. Considering the facts and circumstances of the case, therefore, in my view, this is not a fit case to interfere in extra ordinary jurisdiction. Nevertheless, considering the nature of proceedings, the Learned S.D.M. is hereby directed to complete the inquiry as expeditiously as possible and in any event within a period of six months from the date of communication of this order to him.