Only magistrates authorised by govt can issue the order
Srinagar: The High Court of Jammu and Kashmir and Ladakh on Friday ruled out that under section 144 CrPc, Divisional Commissioner has no powers to issue orders in urgent cases, apprehending nuisance or danger to public life.
“It is the magistrate specially empowered by the state government to exercise the powers u/s 144 CrPC,” the court noted.
The court of Sanjeev Kumar passed the ruling after hearing a plea of a plastic scrap dealer of Kulgam. The petitioner had challenged the order of Deputy Director (E&S) with Divisional Commissioner Kashmir in which a plastic scrap unit at Kulgam’s Qaimoh was declared a public nuisance in the area and cause of pollution.
The court while quashing the order of Divisional Commissioner passed a slew of directions on the issue.
“That notwithstanding quashing of the impugned order supra, 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, that is collection, storing and segregation of plastic waste on his proprietary land amounts to public nuisance or otherwise falls within the ambit of section 144 CrPC,” Justice Kumar recorded.
However, Justice Kumar directed that the District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate can decide to proceed against the petitioner under section 144 CrPC. But, not only the petitioner should be given the opportunity of being heard but the entire procedure laid down in section 144 CrPC would be strictly adhered to in that case.
The court also left it to the State Pollution Control Board or any other competent authority to look into the grievance of the respondent. It asked the body to take a decision as to whether the activity falls within the ambit of the Prevention of Water Pollution Act 1974, Air Pollution Act 1981 or the rules framed or any other applicable provision of Anti-Pollution Law and requires permission to establish or operate a unit.
“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, “Justice Kumar said.