Excelsior Correspondent
Srinagar, Dec 25: High Court has quashed the orders of Divisional Commissioner Kashmir and Deputy Commissioner Kulgam declaring a plastic unit as a public nuisance and recorded that these officials have no power to pass such orders.
Abdul Salam Guroo approached the court against the order of Deputy Director (E&S), with Divisional Commissioner, Kashmir whereby his unit dealing with plastic scrap, situated at Qaimoh, Kulgam, has been declared public nuisance in the area and cause of pollution and subsequently the Deputy Commissioner (DC), Kulgam, has been called upon to seal the unit immediately and initiate appropriate action under rules against the petitioner.
The impugned order has been challenged by him primarily on the ground that the Divisional Commissioner, Kashmir, or the Deputy Director (E&S), working in his office, has no competence or authority to pass such order and even if it is assumed that it has such authority or competence, the impugned order still cannot be sustained having been passed in violation of principles of natural justice.
Justice Sanjeev Kumar opined that neither the Divisional Commissioner, Kashmir, nor the Deputy Director (E&S), working in his office, is 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 Cr.PC.
Underscoring the relevance of Section 144 of CrPC, court said, indisputably, a District Magistrate or Sub Divisional Magistrate or any other Executive Magistrate, specially empowered by the State Government, may exercise power to issue orders in urgent cases, apprehending nuisance or danger to public life, by acting u/s 144 Cr.PC.
“Needless to say that Section 144 Cr.PC lays down an elaborate procedure to be followed. 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 a notification”, Court added.
Court on the order of Divisional Commissioner Kashmir said it is neither issued by a competent authority nor does it strictly fall within the purview of Section 144 Cr.PC, as such it is difficult to accept the argument of the counsel for the respondent side that the impugned order does not suffer for want of jurisdiction or competence.
Cour said 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.
“We have a Pollution Control Board (PCB) in position, which, under the twin Acts, is competent to initiate appropriate action provided the activity of an offender falls within the purview of the said Acts”, Justice Kumar observed.
Court quashed the impugned order bearing No. Div com/Dev/05/2021- 1825-28 dated 12-08-2021 by holding the same as without jurisdiction however, notwithstanding quashing of the impugned order, court left it open 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 Cr.PC, provided the activity, the petitioner is engaged in it amounts to public nuisance or otherwise falls within the ambit of section 144 Cr.PC.
Court has also left it to the State Pollution Control Board or any other competent authority to look into the grievance of the respondents-side 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.
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