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2025 Supreme(Online)(Ker) 31829
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V. G. Arun, J
K.M.YOUSEPH – Appellant
Versus
JOHN DEVASSY – Respondent
CRL.MC NO. 4810 OF 2025|MC NO.98 OF 2025
For the Appellants/Petitioners:C.S.MANU, S.K.PREMRAJ, V.SARITHA, DILU JOSEPH, C.A.ANUPAMAN, T.B.SIVAPRASAD, NEETHU.K.SHAJI, C.Y.VIJAY KUMAR, MANJU E.R, ALINT JOSEPH, PAUL JOSE, DAINY DAVIS, MAHESH KUMAR| For the Respondents: P.SHAIJAN JOSEPH, FRANKLIN JOSEPH, AJITH MURALI
Conditional orders under public nuisance law can be issued immediately without mandatory police reports to avert imminent danger.
Headnote:(A) BNSS - Sections 152, 154, and 157 - Challenge against a conditional order issued by Sub Divisional Magistrate for abating public nuisance - Court holds that Sub Divisional Magistrate was within its rights to issue the order without waiting for police reports, as the aim was to avert imminent danger to residents. Key procedures for compliance and opportunity to show cause are defined through the relevant sections. (Paras 2, 6, 7)
(B) Public Nuisance - The conduct of operations leading to significant public disturbance was addressed, affirming the necessity for timely intervention against such nuisances. (Paras 3, 4)
Facts of the case:
Petitioners challenged the Sub Divisional Magistrate's order directing them to cease actions leading to public nuisance from their godown, claiming procedures were not duly followed as established by law.
Findings of Court:
The court directed that future proceedings must adhere strictly to the outlined legal framework, despite the prior inability to file timely reports.
Issues: The core issue is whether the Sub Divisional Magistrate could issue a conditional order without first mandating the submission of police reports.
Ratio Decidendi: The court reasoned that the immediate threat posed by public nuisance justified the issuance of a conditional order, and failure to comply with procedures in such cases would undermine the law’s intent for timely relief.
Result: Crl. M.C disposed of with directions.
| Table of Content |
|---|
| 1. challenge against sub divisional magistrate's order. (Para 1) |
| 2. complaint of public nuisance by residents (Para 2 , 3) |
ORDER
Dated this the 20th day of June, 2025 The challenge in this Crl.M.C. is against Annexure A4 order passed by the Sub Divisional Magistrate, Ernakulam on a complaint filed by respondents 1 to 3 and 49 other local residents of Ward No. 15 and 16 in Kadungalloor Panchayat. By the impugned order, the Sub Divisional Magistrate directed the petitioners to stop the illegal actions pointed out in the complaint forthwith.
2. Learned Counsel for the petitioners contended that Section 152 of the BNSS makes it mandatory for the Sub Divisional Magistrate to either call for a report from the police or take evidence before passing a conditional order. Moreover, the order require the petitioner to close down his godown immediately, which is contrary to the scheme of the provisions dealing with public nuisances contained in Chapter XI of the BNSS . To buttress the argument reference is made to Sections 154 and 157 of the BNSS . It is hence contended that, any proceedings for abetting public nuisance can only be in accordance with the aforementioned provisions.
3. Learned Counsel for respondents 1 to 3 submitted that conduct of a huge godown by the petitioner has made life miserable for the residents due to the parking of huge trailers, movement of the vehicles day-in and day-out and the dust generated. As repeated request to curb the nuisance had fallen on deaf ears, respondents 1 to 3 and others approached all statutory authorities, including the Sub Divisional Magistrate. On receipt of the complaint, the Sub Divisional Magistrate called for reports from the police, the Secretary, Kadungalloor Grama Panchayat, the Regional Transport Officer, Aluva and the Station House Officer, Binanipuram. For reasons best known, none of the authorities submitted the reports on time, leaving the Sub Divisional Magistrate with no alternative than to pass a conditional order.
4. It is contended that, since the power under Section
152 is exercised to avert imminent danger and nuisance, it cannot be contended that the conditional order can be passed only after obtaining a report from the police or giving opportunity to adduce evidence to the person against whom the order is proposed to be passed.
5. Heard the learned Public Prosecutor also.
6. The contention that, a conditional order under Section 152 can be passed only after receiving the report of the police and taking evidence cannot be countenanced, since the purpose of issuing a conditional order, viz; to avert imminent danger, nuisance, will be defeated if such procedure is held to be mandatory. In the case at hand, the information was available with the Sub Divisional Magistrate in the form of complaint filed by respondents 1 to 3 and even though a report was called from the police, the same was not filed within time. The other contention is that the order could not have been passed without any evidence regarding nuisance. Here, it is to be noted that the words ‘and on taking evidence’ is qualified by the words, ‘if any’ in brackets.
7. Having held so, I find merit in the argument that a conditional order can be imposed only by following the procedure prescribed. In Section 154 extracted below;
“154. Person to whom order is addressed to obey or show cause.— The person against whom such order is made shall— (a) perform, within the time and in the manner specified in the order, the act directed thereby; or (b) appear in accordance with such order and show cause against the same; and such appearance or hearing may be permitted through audio-video conferencing.”
Thus, the person against whom the order is passed can either comply the direction or show cause against the same. If that person opts to show cause, the procedure under Section 157 should be followed.
