IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 Crl.MC.No. 2422 of 2011() ------------------------- NO.B2-656/09 DT. 8.2.11 PASSED UNDER SECTION 138 CR.PC BY SUB DIVISIONAL MAGISTRATE, THIRUVALLA. ---------- PETITIONER: ----------------- A.A.THOMAS, AGED 79 YEARS, ERUTHIKAL HOUSE, ANGADI, RANNI, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX RESPONDENT(S): ------------------------ 1. SUB DIVISIONAL MAGISTRATE, REVENUE DIVISIONAL OFFICE, THIRUVALLA, PATHANAMTHITTA DISTRICT. 689672 2. VILLAGE OFFICER, VILLAGE OFFICE, ANGADI, RANNI, PATHANAMTHITTA DISTRICT. 689672 3. P.T.ABRAHAM, PALANIKUNNATHIL, ETTICHUVADU P.O., 689675, ANGADY, RANNY, PATHANAMTHITTA DISTRICT. R1 & 2 BY PUBLIC PROSECUTOR SMT.R.REMA R3 BY ADVS. SRI.P.B.ASOKAN SRI.P.B.AJOY SRI.S.SREEKUMAR (ADUKKATH) THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/10/2011, ALONG WITH CRRP NO. 2372 OF 2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK Crl.MC.No. 2422 of 2011() ----------------------------------- APPENDIX --------------- PETITIONER'S ANNEXURES ---------------------------------------- ANNEXURE A1. COPY OF THE COMPLAINT DATED 28.07.2009 ANNEXURE A2. COPY OF THE REPORT BEARING NO.287/09 DT. 7.11.2009 ANNEXURE A3. COPY OF THE REPORT DATED 2.7.2010 SUBMITTED BY THE SENIOR SUPERINTENDENT, RDO OFFICE, THIRUVALLA, BEFORE THE 1ST RESPONDENT. ANNEXURE A4. COPY OF THE PRELIMINARY ORDER PASSED UNDER SECTION 133 CR.PC. BEARING NO.B2-656/09 DATED 19.11.2010 ANNEXURE A5. COPY OF THE FINAL ORDER ISSUED BY THE 1ST RESPONDENT UNDER SECTION 138 CR.P.C. BEARING NO.B2-656/09 DATED 08.02.2011 ANNEXURE.A6. THE 2ND RESPONDENT SUBMITTED ANOTHER REPORT BEARING NO.54/11 DATED 4.5.2011. ANNEXURE A7. ORDER BEARING NO.B2-656/09/L.DIS. DATED 21.5.2011 ANNEXURE A8. COPY OF THE COMPLAINT DATED 21.6.2011 RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE CPY / P.A. TO JUDGE VK N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.2422 of 2011 and Crl.R.P.No.2372 of 2011 ---------------------------------------------------- Dated this the 24th day of October, 2011 Order Crl.M.C.No.2422 of 2011 has been filed by the petitioner complaining of non-implementation of Annexure A5 order passed by the Sub Divisional Magistrate. The learned counsel for the petitioner submits that two rubber trees, one Anjili tree and one vashana tree situated in the property of the third respondent are dangerously slanting over his residential house. They may at any time fall on his house. The petitioner has filed Annexure A1 complaint before the Sub Divisional Magistrate to that effect. Convinced of that fact, the learned Sub Divisional Magistrate passed Annexure A4 preliminary order directing the third respondent to show cause why order should not be passed to cut and remove those trees. The 3rd respondent raised objection against Annexure A4. After considering the objections raised by the third respondent, Annexure A5 final order has been passed by the learned Sub Divisional Magistrate directing the third Crl.M.C.2422/11 & Crl.R.P.2372/11 2 respondent either to cut and remove the trees dangerously slanting over the petitioner's house or to avoid its danger by tying it with strong steel stay wire within seven days of the receipt of the order. Though it was stated that the trees were tied with a metal stay wire, that does not actually serve the purpose. The report filed by the Village Officer(Annexure A6) with regard to the same has been pointed out by the learned counsel to fortify his submission that Annexure A5 order has not been so far complied with. 2. The learned counsel for the third respondent who is the revision petitioner in Crl.R.P.No.2372 of 2011 submits that before passing the order dated 16.9.2011, the learned Sub Divisional Magistrate has to follow the procedure prescribed under the Cr.P.C. But that was not done in this case. It is also submitted that, so far, the two rubber trees have not fallen and there was no urgency at all. I find no merit in these contentions. The learned Sub Divisional Magistrate or the persons residing in the house cannot wait till the trees fall on the house. It is taking note of imminent danger that is likely to be caused to the inmates of the house, those trees were ordered to be tied by using strong Crl.M.C.2422/11 & Crl.R.P.2372/11 3 steel stay wires. The learned counsel for the petitioner in Crl.M.C.No.2422 of 2011 now makes only a limited prayer that those two rubber trees dangerously slanting on the house of the petitioner's be pulled back and tied up to strong other trees. The petitioner in Crl.R.P.No.2372 of 2011 can have no legitimate grievance against the order passed by the Sub Divisional Magistrate. Hence, I am not inclined to interfere with the order passed by the Sub Divisional Magistrate whose order is actually intended to prevent the imminent danger that is likely to be caused to the petitioner in Crl.M.C.No.2422 of 2011 as otherwise the trees are likely to fall on his house. Therefore, Crl.R.P.No.2372 of 2011 is dismissed. The Crl.M.C.No.2422 of 2011 is allowed directing the Sub Divisional Magistrate to implement the order by causing those two rubber trees tied with by using strong steel stay wires and should be pulled back and tied up to strong other trees. This shall be done within two weeks from the date of receipt of a copy of this order. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.2422/11 & Crl.R.P.2372/11 4 Crl.M.C.2422/11 & Crl.R.P.2372/11 5