IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 WP(C).No. 16876 of 2008(H) -------------------------------------- PETITIONER(S): ---------------------- SANJEEV KUMAR.A., MOONDANPARAMBIL HOUSE, CHANDRATHIL ROAD, EDAPPALLY. BY ADV. MR.P.SANJAY MR.A.PARVATHI MENON MR.BIJU MEENATTOOR MR.M.MUHAMMED SHAFI MR.JINU JOSEPH MR.J.ABHILASH RESPONDENT(S): ------------------------ 1. REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM. 2. T. BALACHANDRAN, NANDANAM, B.T. RANADIVE ROAD, CHANDRATHIL ROAD, EDAPPALLY. 3. DISTRICT COLLECTOR, ERNAKULAM. R1 & R3 BY GOVERNMENT PLEADER SMT.M.R. SREELATHA R2 BY ADV. MR.M.L.GEORGE SMT.GOVINDU P.RENUKADEVI(ADV.COMMISSIONER) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 16876/2008-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE TAX RECEIPT AND SALE DEED IN THE NAME OF KRISHNAPRIYA. EXT.P2: COPY OF THE NOTICE ISSUED BY COCHIN CORPORATION DATED 28/06/2005. EXT.P3: COPY OF THE NOTICE NO.D5168/17/1/07 ISSUED BY 1ST RESPONDENT. EXT.P4: COPY OF THE REPRESENTATION DATED 12/10/2007 FILED BY THE PETITIONER. EXT.P5: COPY OF THE OBJECTION FILED BY PETITIONER. EXT.P6: COPY OF THE NOTICE DATED 31/12/2007 ISSUED BY 1ST RESPONDENT. EXT.P7: COPY OF THE POSTAL RECEIPT DATED 17/01/2008. EXT.P8: COPY OF THE ORDER DATED 19/05/2008 ISSUED BY 1ST RESPONDENT. EXT.P9: COPY OF THE REPRESENTATION DATED 31/05/2008 FILED BEFORE THE DISTRICT COLLECTOR. RESPONDENT'S EXHIBITS: EXT.R2(1): COPY OF THE REPORT NO.9072/07-A4 DATED 13/08/2007. EXT.R2(2): COPY OF THE ORDER DATED 17/09/2007. //TRUE COPY// P.A. TO JUDGE Rs/ V.GIRI, J ....................... W.P.(C).16876/2008 ....................... Dated this the 4th day of June, 2009 JUDGMENT Petitioner and the 2nd respondent are neighbouring property owners. 2nd respondent complained of a threat and danger to his property and the life of the inmates in his house from two coconut trees. According to the respondents, they are poised dangerously over the 2nd respondent's house. A complaint was filed before the RDO, the 1st respondent, who initially issued Ext.P3 notice. Petitioner there upon approached the District Collector as per Ext.P4 and then submitted Ext.P5 detailed reply to Ext.P3. The 1st respondent conducted a hearing as evidenced by Ext.P6. 1st respondent then proceeded to pass Ext.P8 which reads as follows:- “Whereas it has been made appear to me that two coconut trees standing in your property are leaning above the house W.P.(C).16876/2008 2 of petitioner is likely to causing serious danger to the lift and property of the petitioner and that such danger and nuisance still exists, I do hereby direct and order you to cut and remove the coconut trees within 10 days or to appear before the Sub Divisional Magistrate, Fort Cochin on 30.5.08 at 11.A.M. and show cause why this order should not be enforced. 2. It is at this juncture that the petitioner has approached this Court. The complaint filed by the 2nd respondent is cognizable by the Sub Divisional Magistrate under Section 133 of the Cr.P.C. But if he invokes his power under Section 133, then he is to pass a conditional order in terms of Section 133. If the order is objected to by the contesting respondents, then he shall proceed to conduct an enquiry under Section 138 of the Cr.P.C. Ext.P3 does not satisfy the requirements of a conditional order. Since Ext.P5 detailed objections were filed, final order should be passed by the Sub Divisional W.P.(C).16876/2008 3 Magistrate. Ext.P8 is not an ample substitute for the same. 3. Petitioner objects to the proceedings initiated by the Sub Divisional Magistrate on various grounds. He has also taken up a contention that he is not the owner of the property and therefore, notice should be issued to the actual owner of the property. This is also one of the aspects to be considered by the 1st respondent, the Sub Divisional Magistrate. 4. This Court had appointed an Advocate Commissioner to conduct local inspection of the property of the 2nd respondent. The Commissioner has filed a report which indicates that there is no danger caused by the two coconut trees standing in the property of the petitioner. Learned counsel for the 2nd respondent refers to Ext.R2(1) dated 13.8.07, a report sent by the Tahasildar to the RDO. Commissioner's report and the report of the W.P.(C).16876/2008 4 Tahasildar are materials which should engage the attention of the Sub Divisional Magistrate. 5. In the result, writ petition is disposed of directing the 1st respondent to conduct an enquiry into the objections filed by the petitioner as Ext.P4, in terms of the provisions of the Cr.P.C. Evidence may be adduced by the petitioner and the 2nd respondent and on the basis of such evidence, a final order shall be passed by the 1st respondent within three months from the date of receipt of a copy of this judgment. In circumstances where the parties have already joined issue, petitioner shall consider Ext.P3 as a conditional order. Final order shall be passed within three months from the date of receipt of a copy of this judgment. V.GIRI, Judge mrcs