30/12/2021
Hon'ble Justice Sanjeev Kumar, of J&K and Ladakh High Court, held that the Divisional Commissioner, Kashmir, or the Deputy Director (E&S), is not a District Magistrate or any other Executive Magistrate specially empowered by the State Government to exercise the powers under Section 144 CrPC.
Aggrieved by the order of Deputy Director (E&S), with Divisional Commissioner, whereby the Unit of the petitioner, dealing with plastic scrap had been declared public nuisance in the area and cause of pollution, the petitioner had assailed the impugned order. The petitioner contended that the Divisional Commission had no competence or authority to pass such order and even if it was assumed that it had such authority or competence, the impugned order still could not be sustained having been passed in violation of principles of natural justice.
The petitioner was engaged in the business of collecting, storing and segregation of plastic waste. He claimed that the respondent 6, who was having a property dispute with the petitioner, lodged a false and frivolous complaint with the Divisional Commissioner, who took cognizance of the same without providing an opportunity of being heard to the petitioner and passed the impugned order, declaring the activity of the petitioner as public nuisance and a cause of pollution under Plastic Waste Management (Amendment Rules) 2018.
The Bench observed that neither the Divisional Commissioner, Kashmir, nor the Deputy Director (E&S), working in his office, was a District Magistrate, a Sub Divisional Magistrate or any other Executive Magistrate, specially empowered by the State Government to exercise the powers u/s 144 CrPC. Further, section 144 Cr.PC lays down an elaborate procedure to be followed and any order made u/s 144 Cr.PC is to remain in force only for a period of two months and if it is to be extended beyond that period, the competence lies only with the Government, that too, when it deems it necessary so to do for preventing danger to human life, health or safety or preventing a fight or any affray and this can be done by the Government only by issuance of notification.
Even under the Prevention of Water Pollution Act 1974 and Air Pollution Act 1981, the Divisional Commissioner or any other officer working with him, has not been given the jurisdiction to seal any Unit, which as per his or her information, may be a source of pollution as the Pollution Control Board is established for that purpose.
1) That the impugned order was without jurisdiction and was, accordingly, quashed.
2) That notwithstanding quashing of the impugned order, it would be competent for the District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf by the Government, to proceed u/s 144 CrPC, provided the activity, the petitioner is engaged in amounts to public nuisance or otherwise falls within the ambit of section 144 CrPC.
3) In case the authority specially empowered by the Government, decide to proceed against the petitioner, in that eventuality, not only the petitioner shall be given opportunity of being heard but the entire procedure, laid down in section 144 CrPC, shall be strictly adhered to.
4) It was left to the State Pollution Control Board or any other competent authority to look into the grievance of the private respondents and take a decision as to whether the activity, the petitioner is engaged in, falls within the ambit of the Prevention of Water Pollution Act 1974, Air Pollution Act 1981 or the Rules framed thereunder or any other applicable provision of Anti Pollution Law and, therefore, requires permission to establish/operate a Unit.
5) That the request of the petitioner for permission made earlier, having been rejected once by the Pollution Control Board, on the ground that the activity does not fall within its purview, shall not come in the way of the respondents, who may reconsider and take appropriate action under rules only if the activity of the petitioner falls under the ambit of such rules.
Abdul Salam Guroo v. UT of J&K, WP (C) 1684 of 2021.
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