Madras High Court
Dr.Muthu vs The Executive Magistrate/Tahsildhar on 6 March, 2025
W.P.(MD)No.4046 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.03.2025
CORAM
THE HON'BLE MR.JUSTICE P.DHANABAL
W.P.(MD)No.4046 of 2025
and
W.M.P(MD)No.2906 of 2025
Dr.Muthu ... Petitioner
Vs.
1. The Executive Magistrate/Tahsildhar
Manalmelkudi
Manalmelkudi(Taluk)
Pudukottai District
2. Sahayamary
3. Anbu Arasu
4. Selvarani
(Respondents 2 to 4 impleaded vide Court
dated 21.02.2025 ub WMP(MD) No.3279 of 25) ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, seeking a Writ of Certiorarified Mandamus, calling for the records
pertaining to the Impugned Order issued by the Respondent vide R.C.No.
5076/2024/A9 on 07.02.2025 and quash the same as illegal and
consequently directing the respondent to permit the petitioner to run the
prawn farm situated in Survey No. 349/3, 349/7, 349/9, 349/10 and
349/13 situated at Raja Thoppu Village, Manalmelkudi Taluk,
Pudukkottai District.
1/9
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W.P.(MD)No.4046 of 2025
For Petitioner : Mr.M.Anandakumar
for Mr.V.Selvakumar
For Respondents : Mr.N.Senthil Ayyanar
No.1 Government Advocate
Nos. 2 to 4 : Mr.M.Suresh
for Mr.L.Prabakaran
ORDER
This Writ Petition has been filed to quash the impugned Order
passed by the respondent vide R.C.No. 5076/2024/A9 on 07.02.2025 and
quash the same as illegal and consequently direct the respondent to
permit the petitioner to run the prawn farm situated in Survey No. 349/3,
349/7, 349/9, 349/10 and 349/13 situated at Raja Thoppu Village,
Manalmelkudi Taluk, Pudukkottai District.
2. The learned counsel appearing for the petitioner would submit
that the petitioner is running a prawn farm in Survey Nos.
349/3,349/7,349/9,349/10 and 349/13 situated at Raja Thoppu Streetm
Manalmedi Taluk, Pudukottai District. Every year the petitioner is
renewing the required permission without fail. The District Collector,
Pudukottai issued a public notice instructing all prawn farms in
Manalmelkudi and Avudaiyarkovil Taluks to register or renew their
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registration immediately immediately the petitioner submitted an
application on 30.12.2024 along with necessary documents and the
registration renewal process is in progress. Due to some previous enmity
against the petitioner complaint was lodged to the respondents alleging
that the prawn farm is causing sanitation issues in Raja Thoppu Village.
Based on the false complaint the respondent issued notice on 28.01.2025
under Section 152(1) of BNSS and notice under Sections 326(C), and
Section 270(Public Nuisance) and Section 279(Fouling Water of Public
Spring or Reservoir) of BNSS Act. Thereafter the petitioner also gave an
explanation and thereafter without following procedure under Section
157 of BNSS and without recording evidence the authority has straight
away passed the impugned order, therefore there is a procedural violation
and no any opportunity was given to the petitioner and without
following the natural justice order has been passed. Therefore the order
passed by the first respondent is liable to be quashed.
3. The learned Government Advocate appearing for the first
respondent would submit that the petitioner without having licence is
running prawn farm and without following rules causing water pollution
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and thereby complaint was lodged and the District Collector issued
public notice. Based on the complaint they issued notice under Section
152(1) of BNSS. Thereafter the petitioner appeared and submitted his
explanation and only after hearing the petitioner they had passed the
order. However no evidence has been taken in this regard. The petitioner
without exhausting remedy before the Revenue Divisional Officer
straight away filed this petition, therefore the present petition is liable to
be dismissed.
4. The learned counsel appearing for the respondents 2 to 4 would
submit that this petitioner without license and without following
procedures under pollution laws was running prawn farm and they are
causing nuisance to the public and thereby lodged complaint and the
respondents also have taken appropriate steps
5. Heard both sides and perused the materials available on record.
6. The main contention of the petitioner is that no opportunity was
given to the petitioner after issuing notice to the petitioner under Section
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152(1) of BNSS. Opportunity was not given to the petitioner and
evidence was also not taken before passing final orders, hence the order
passed by the first respondent is liable to be set aside. In support of his
contention he relied on the judgment of this Court in the case of Ind
Bharah Powergencom Ltd .vs. The Revenue Divisional Officer-cum ,
wherein this Court in has observed as follows:
52. A conspectus of the materials available in this
proceeding in the light of the illuminating judicial pronouncements,
would pave way to emerge with following points which indicate
that the impugned order suffers from certain legal infirmities:
.............
e) The Executive Magistrate shall take evidence as in a
summons case in terms of Section 138, after the persons appear to
show cause against the order passed under Section 133 Cr.PC and
on considering the materials available, the Executive Magistrate
shall make the conditional order absolute. In the present case,
there is no such recording of evidence of the parties concerned and
even at the inception, a final order has been passed without taking
evidence and without any enquiry.
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7. On careful perusal of the above said judgment it is clear that the
Executive Magistrate shall take evidence as in a summons case in terms
of Section 138, after the persons appear to show cause against the order
passed under Section 133 of Cr.P.C now Section 153 of BNS and on
considering the materials available the Executive Magistrate shall make
the conditional order absolute. In the case on hand also the first
respondent has passed order without taking evidence. Therefore the said
case law is squarely applicable to the present facts of the case.
8. The learned Government Advocate appearing for the first
respondent also relied on the judgment of this Court in A.Arul .vs. The
District level committee, Coastal Aquaculture Authority, Rep. by its
Chairman, The District Collector, First Floor, Collectorate, Tiruvallur in
W.P.Nos.15353 and 15390 of 2020, wherein this Court after referring to
the judgment of the Hon'ble Apex Court has stated that since the
petitioner has not obtained any permission under the Act dismissed the
petition.
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9. So far as the judgment relied on by the learned Governance
Advocate is concerned there is no discussion about the provision under
Section 157 of BNSS . In the present case the dispute is in respect of non
taking of evidence under Section 157 of BNSS, therefore the case law
relied by the learned counsel appearing for the petitioner is squarely
applicable to this case and the case law relied on by the learned
Government Advocate is not applicable to the present facts of the case.
In view of the above discussions, this Court is of the opinion that the
order passed by the first respondent is liable to be set aside.
10. Further it is represented by the learned Government Advocate
there there is revisional remedy available to the petitioner to approach
the Revenue Divisional Officer but the petitioner without exhausting the
revisional remedy straight away approached this Court. Therefore the
petitioner is at liberty to approach the revisional authorities in
accordance with law since the first respondent has not passed order after
recording evidence.
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11. In the result, the Writ Petition stands allowed and the order
passed by the first respondent is set aside and the mater is remanded back
ot the first respondent for passing fresh order after taking evidence. The
first respondent is directed to complete the proceedings within a period
of three months from the date of receipt of a copy of this order. No costs.
Consequently connected miscellaneous petition stands closed.
06.03.2025
NCC : Yes / No
Index : Yes / No
aav
To
The Executive Magistrate/Tahsildhar
Manalmelkudi
Manalmelkudi(Taluk)
Pudukottai District
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P.DHANABAL, J.
aav
06.03.2025
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