IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 Crl.Rev.Pet.No. 2104 of 2011() ------------------------------ MC.518/2011 OF SUB DIVISIONAL MAGISTRATE, FORT KOCHI. .................... REVN. PETITIONER/COUNTER PETITIONER --------------------------------------------------------------- K.K. VALSAN, S/O.KUMARAN, AGED 64 YEARS, NJALIYATH HOUSE, MOOTHAKUNNAM. BY ADV. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE, SMT.ACHU SUBHA ABRAHAM. RESPONDENTS/STATE AND PETITIONER ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STALIN, S/O.KANNUPILLA, POOMALIN, MOOTHAKUNNAM, PARAVUR TALUK - 683 516. R1 BY PUBLIC PROSECUTOR SMT.SEENA R. R2 BY ADV. SRI.V.P.PRASAD. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl. R.P No.2104 OF 2011 ----------------------------------------- Dated this the 18th day of November 2011 ORDER Challenge in the revision is against an order passed in a proceeding under Chapter XB of the Code of Criminal Procedure, for short, 'the Code' by the Sub Divisional Magistrate, Fort Kochi. The second respondent in the revision approached the Sub Divisional Magistrate setting forth a grievance that a coconut tree standing in the property of the revision petitioner is slanting towards his residential building and it is a perennial threat and perpetual nuisance and it has to be cut and removed. After collecting information from the revenue officials on the complaint raised and being satisfied that the tree standing in the property of the revision petitioner is causing threat to the complainant and the occupants of his house and, thus, amounting to a public nuisance, the Sub Divisional Magistrate passed a preliminary order directing the revision petitioner to cut and remove the tree or show cause why that order should not be made absolute. In response to the notice, the revision petitioner appeared before the magistrate and filed objections in which among other contentions he stated that he had already cut and removed one damaged coconut tree from his Crl.R.P No.2104 OF 2011 2 property and also taken steps to tie the tree covered by the proceedings with strong wire to obviate any threat to the complainant and the members of his family. The magistrate during the course of inquiry over the proceedings questioned both the complainant and also the opposite party (revision petitioner). Complainant agreed to bear all the expenses for cutting and removing the coconut tree, which, according to him, was causing threat to his life and property. He also stated that even if the tree is tied with a strong wire the threat thereof cannot be obviated. The opposite party (revision petitioner) reiterating his objections against the cutting of the tree, contended that he has already tied the tree with wire ropes. He, however, agreed to abide by the orders of the magistrate. The Sub Divisional Magistrate thereafter conducted a further inquiry over the threat alleged from the tree, situate in the property of the revision petitioner, through the Village Officer. Report was filed by the Village Officer after conducting a local inspection that it is appropriate to cut and remove that tree as threat from it to the occupants of the house of the complainant cannot be ruled out. Based on the materials covered by the proceedings, including the aforesaid report, the Sub Divisional Magistrate passed a final order affirming the preliminary order, and, Crl.R.P No.2104 OF 2011 3 directed the revision petitioner to comply with the order of cutting and removing of the coconut tree, within the time limit fixed. That order is challenged in this revision as improper, illegal and unsustainable. 2. Challenge canvassed by the counsel is that the procedural requirements in passing an order as covered by Chapter XB of the Code have not been complied with by the Sub Divisional Magistrate when he made the preliminary order absolute under the order impugned in the revision. In fact, the order was one with no evidence, is the submission of the counsel to contend that the Sub Divisional Magistrate has exceeded his jurisdiction in making the preliminary order absolute. Per contra, the learned counsel for the respondent/complainant urged that no interference with the order passed by the Sub Divisional Magistrate is called for in the case as the tree continues to be a perpetual nuisance and any delay in cutting and removing of the tree will cause serious threat to the life and property of the petitioner and the occupants in the residential building situate close to that tree. 3. Supervisory jurisdiction with the court in exercise of revision, to examine the propriety, correctness and legality of the order passed by an inferior court is primarily intended to correct any Crl.R.P No.2104 OF 2011 4 mistake or error in the order of the subordinate court for the advancement of justice, more so, to avoid miscarriage of justice. A threat caused by a tree which amount to public nuisance is covered by Section 133(1)(d) of the Code of Criminal Procedure. As in the case of a proceeding commenced over an obstruction to a pathway, channel, river etc. in which if there is a denial of public right, an inquiry over such denial is necessary, no such inquiry is required when a public nuisance is imputed in respect of a tree causing danger even if be to an individual only. Even if threat of inquiry in such a case is only to an individual, it is deemed as a public nuisance and a preventive jurisdiction is conferred on the executive magistrate to take appropriate steps to abate that nuisance. What should be the nature of inquiry in such a case where one party asserts and other party denies the threat of danger from the tree, can never be laid down in strait jacket formula. The magistrate has to take note of the fact situation presented and appropriate orders as are found necessary have to be passed, which otherwise would result in casualties more than damages to an individual or his property. Here, in the facts of the case, it is seen, the revision petitioner has agreed before the Sub Divisional Magistrate that he will abide by whatever order passed by him in respect of the tree Crl.R.P No.2104 OF 2011 5 situate in his property. On the materials placed where the Sub Divisional Magistrate was satisfied that the tree has to be cut and removed and an order passed accordingly he has filed this revision retracting from his previous stand contending that the tree tied with ropes does not cause any threat to the life and property of the complainant. I do not find any merit in the challenges raised to assail the order of the Sub Divisional Magistrate where the materials on record would indicate that satisfaction arrived at over the threat from the tree, directing its cutting down, does not suffer from any impropriety. Revision lacks merit, and it is dismissed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge