Puthanpura Shifa Private Limited & Nafeesa Unneen v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943** **CRL.MC NO. 2636 OF 2021** **AGAINST THE ORDER/JUDGMENT IN MP 15/2019 OF SUB DIVISIONAL** **MAGISTRATE, OTTAPPALAM, PALAKKAD** ## **PETITIONER/S:** 1 PUTHANPURA SHIFA PRIVATE LIMITED 388, KOTTAKUNNU, CHERPULASSERY P.O., PALAKKAD DISTRICT, KERALA, PIN - 679 503 REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, DR.ABDULLA KHALEEL. 2 NAFEESA UNNEEN PUTHANPURA HOUSE, POOVATHANI, TALEKKOD POST, MALAPPURAM DISTRICT, PIN - 679 322. BY ADVS. LAL K.JOSEPH P.MURALEEDHARAN (THURAVOOR) T.A.LUXY SURESH SUKUMAR ANZIL SALIM CHACKO MATHEWS K. ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, KOCHI - 682 031. 2 THE SUB DIVISIONAL MAGISTRATE COURT OTTAPALAM, PALAKKAD DISTRICT, PIN - 679 101. 3 THE DISTRICT DISASTER MANAGEMENT KENATHU PARAMBU, KUNATHURMEDU, PALAKKAD, PIN - 678 013. 4 THE MUNICIPAL SECRETARY CHERPULASSERY MUNICIPALITY, CHERPULASSERY, PALAKKAD, PIN - 679 503. 5 THE STATION HOUSE OFFICER CHERPULASSERY POLICE STATION, PERINTHALMANNA ROAD, PERINTHALMANNA ROAD, PALAKKAD, CHERPULASSERY, PALAKKAD, KERALA - 679 503. **CRL.MC NO. 2636 OF 2021** **-2-** 6 THE VILLAGE OFFICER CHERPULASSERY VILLAGE OFFICE, PERINTHALMANNA ROAD, CHERPULASSERY, KERALA - 679 503. 7 THE GEOLOGIST DISTRICT OFFICER OF THE DEPARTMENT, MINING AND GEOLOGY, PALAKKADU, PIN - 678 014. **OTHER PRESENT:** SMT.M.K.PUSHPALATHA, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CRL.MC NO. 2636 OF 2021** **-3-** ## O R D E R [Dated this the 7[th] day of July, 2021] The petitioner has approached this Court seeking to quash the impugned order of the Sub Divisional Magistrate, Ottappalam made as per Annexure-A7. There are grounds that it is not proper and not in compliance with the provisions of law and that the order was passed solely based on the report of the Geologist and that there is no evidence as contemplated under Section 138 Cr.PC has been recorded before passing a final order. The learned counsel for the petitioner also relies on the decision of the Kerala High Court in Annakody v. State of Kerala and Others [2015(4) KLT 757] in support of his contention that an order under Section 138 requires to be made after taking evidence as in a summons case. A reading of Annexure-A7 would indicate that there was no evidence recorded by the learned Magistrate. **CRL.MC NO. 2636 OF 2021** **-4-** Therefore, he seeks to quash the proceedings. It is also submitted that the petitioner has in accordance with the directions given in Annexure-A7 complied with all the directions and he has filed Annexure-A8 report before the SDM. But, no subsequent action has been taken and therefore, the petitioner submits that the non-use of JCB and other machinery to maintain his agricultural and plantation would cause irreparable loss to him, and that in case of a fire, it may not be possible for him to extinguish that fire by means of machinery. Moreover, because of non-use of machinery, he has to deploy manual labourers to clear the undergrowth and that the wild undergrowth resulted in a fire accident destroying his entire crops. The petitioner therefore wants reconsideration of the order imposing restrictions on him on use of machinery. ## **CRL.MC NO. 2636 OF 2021** **-5-** 2. After having heard the learned counsel for the petitioner and the learned Public Prosecutor, I find that the petitioner has already complied with the directions given in Annexure-A7 as is explicit from Annexure-A8 and in Annexure- A8 he has undertaken that he will not use JCB and other machinery except with the requisite permission of the authorities concerned. 3. In view of the fact that the petitioner has already complied with the orders at Annexure-A7 and he is willing to comply with further instructions also, it is appropriate that he approaches the SDM with another application seeking a relaxation in the order produced at Annexure-A7, for use of appropriate machinery in case of emergency as may be specified. The SDM shall, under such circumstances, go through Annexure-A8 and **CRL.MC NO. 2636 OF 2021** **-6-** get a report as to whether the orders and directions as per Annexure-A7 has been sufficiently complied with and whether any redressal can be given to the petitioner in the matter of use of machinery for the purpose of cultivation under certain exceptional circumstances and pass appropriate orders as is required in the petition that may be filed. All aggrieved parties shall be impleaded in such petition that may be filed by the petitioner before the SDM. The petition so filed by the petitioner shall be disposed of as expeditiously as possible by the SDM, at any rate, within a period of three months of filing of such petition. The Crl.MC is disposed of as above. Sd/- ASHOK MENON JUDGE jg **CRL.MC NO. 2636 OF 2021** **-7-** ## **APPENDIX OF CRL.MC 2636/2021** ## PETITIONER ANNEXURE Appendix A1 TRUE COPY OF THE SALE DEED NO.3551/17 OF S.R.O.CHERUPPULASSERY. Appendix A1(A) TRUE COPY OF THE SALE DEED NO.3552/17 OF S.R.O.CHERUPULASSERY. Appendix A1(B) TRUE COPY F THE SALE DEED NO.2114/16 OF S.R.O.CHERUPPULASSERY. Appendix A1(C) TRUE COPY OF THE SALE DEED NO.2115/18 OF S.R.O.CHERUPPULASSERY. Appendix A2 TRUE COPY OF THE PROCEEDINGS DATED 21/4/2018 OF THE 3RD RESPONDENT. Appendix A3 TRUE COPY OF THE STOP MEMO DATED 30/11/2018 BY THE 4TH RESPONDENT. Appendix A4 TRUE COPY OF THE DETAILED OBJECTION DATED 2/2/2019 TO THE 3RD RESPONDENT, DISTRICT DISASTER MANAGEMENT, AUTHORITY, PALAKKAD. Appendix A5 TRUE COPY OF THE CONDITIONAL ORDER DATED 20/08/2019 ISSUED BY THE 2ND RESPONDENT IN M.P.15/2019. Appendix A6 TRUE COPY OF THE REPORT DATED NIL FILED BY THE 7TH RESPONDENT GEOLOGIST. Appendix A7 TRUE COPY OF THE ORDER DATED 30/9/2019 IN M.P.15/2019. Appendix A8 TRUE COPY OF THE STATEMENT DATED 18/10/2019 SUBMITTED BEFORE THE 2ND RESPONDENT. Appendix A9 TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE COMPLIANCE OF THE ANNEXURE A7 ORDER. **CRL.MC NO. 2636 OF 2021** **-8-** Appendix A10 TRUE COPY OF THE PHOTOGRAPHS EVIDENCING THE FIRE. Appendix A11 TRUE COPY OF THE SCREEN SHOT OF THE POST TAKEN BY THE PETITIONER. Appendix A11(A) TRUE COPY OF THE SCREEN SHOT OF THE PHOTOGRAPH OF THE NEWS TAKEN BY THE PETITIONER. Appendix A12 TRUE COPY OF THE G.O.(RT) NO.520/2019/DMD DATED 19/8/2019. Appendix A12(A) TRUE COPY OF THE FORMS ISSUED BY THE 3RD RESPONDENT.