IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 WP(C).No. 6280 of 2009(Q) ------------------------------------- CRRP.34/2007 of ADDL. SESSIONS COURT,KOTTAYAM .................... PETITIONER(S): ---------------------- OMANA ABRAHAM, W/O. ABRAHAM, RESIDING AT CHERUVALLIKUNNEL HOUSE, C.M.S. COLLEGE ROAD, KOTTAYAM. BY ADV. MR.BECHU KURIAN THOMAS RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MANI JACOB, S/O. LATE MANI JACOB, KANIYAMKULAM HOUSE, C.M.S. COLLEGE ROAD, KOTTAYAM. R1 BY GOVERNMENT PLEADER MR.K.S. SIVAKUMAR. R2 BY ADV. MR.JAMES KURIAN, MR.SANTHOSH MODAYIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 6280/2009-Q APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMPLAINT DATED 22/07/2004 FILED BY THE 2ND RESPONDENT UNDER SECTION 133 CR.P.C. EXT.P2: COPY OF THE ORDER DATED 08/10/2004 ISSUED BY THE SUB DIVISIONAL MAGISTRATE, KOTTAYAM. EXT.P2(a): COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 17/08/2004. EXT.P3: COPY OF THE JUDGMENT DATED 08/02/2005 IN CRL.R.P.48/2004 ON THE FILES OF THE SESSIONS COURT, KOTTAYAM. EXT.P4: COPY OF THE ORDER DATED 28/09/2007 ISSUED BY THE SUB DIVISIONAL MAGISTRATE, KOTTAYAM. EXT.P5: COPY OF THE JUDGMENT DATED 19/11/2008 IN CRL.R.P.34/2007 ON THE FILES OF THE SESSIONS COURT, KOTTAYAM. EXT.P6: COPY OF THE PLAINT IN O.S.438/2007 ON THE FILES OF THE MUNSIFF COURT, KOTTAYAM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C)No. 6280 OF 2009 =========================== Dated this the 2nd day of December,2009 JUDGMENT Second respondent filed a complaint before Sub Divisional Magistrate, Kottayam alleging that an old garcinia tree is slanding dangerously towards the property of the second respondent and due to the damage to the tree, it is likely to fall down over the building, the firewood shed and cause damage to the life and property of the second respondent. Sub Divisional Magistrate issued a conditional order under section 133 of the Code of Criminal Procedure. After following the procedure provided under section 138 of Code of Criminal Procedure Ext.P4 order was passed making the conditional order absolute directing petitioner to cut and remove the tree within ten days. Petitioner challenged that order before Sessions Court, Kottayam in Crl.R.P.34/2007. By Ext.P5 order learned Sessions Judge dismissed the revision, finding that Sub Divisional Magistrate has complied with all the procedural formalities and rightly made the order absolute under section 138 of Code of Criminal W.P.(C) 6280/2009 2 Procedure. This petition is filed under Article 227 of Constitution of India for a writ of certiorari or any other order quashing Exts.P4 and P5 orders. 2. Learned counsel appearing for the petitioner and the second respondent were heard. 3. As the learned counsel appearing for the petitioner argued that the tree was not standing in such a dangerous position so as to cause danger to a person, Public Prosecutor was directed to make available the records from the Sub Divisional Magistrate Court. Sub Divisional Magistrate made available the records through the Public Prosecutor. On perusing the records, it is seen that Sub Divisional Magistrate has conducted a local inspection in the presence of petitioner and second respondent on 6.9.2007 at 10-30 a.m and recorded that due to the damages caused to the branches at the place where the tree deviated into two branches, it is likely to fall and in that case it will cause damage to the person as well as the property. Learned counsel appearing for the petitioner then submitted that subsequently the slanding branch was cut and removed by the second respondent and in such circumstance, there is no danger from the remaining parts of the tree and hence the order is to be quashed. 4. Learned counsel appearing for the second respondent W.P.(C) 6280/2009 3 submitted that second respondent did not cut and remove the branches and because of the damages one branch had fallen and damage was caused to the building of the second respondent and the remaining branch is also likely to fall and therefore the order is to be sustained. 5. On going through Exts.P4 and P5 orders, I find no reason to quash the order as sought for. When the tree is slanding towards the property of the second respondent and due to the damages caused to the tree, it is likely to fall in the property of the second respondent and in that event it is likely to cause damage to human beings, Sub Divisional Magistrate was justified in directing the petitioner to cut and remove the tree. But in view of the submission made by the petitioner that the branch which was found to be likely to fall has already been either fallen or cut and removed, and there is no danger from the remaining branch of the tree, it is made clear that the Sub Divisional Magistrate has to conduct a local inspection and see whether the remaining part of the tree is standing in a dangerous position and is likely to fall causing danger to the members of the family of the second respondent and if so, whether the said tree as such is to be cut or not. Petition is disposed directing the Sub Divisional Magistrate to conduct a local inspection with notice to the W.P.(C) 6280/2009 4 second respondent and the petitioner and find whether now existing branch of the tree is likely to fall and thereby cause danger to the person or property and if so whether the tree is to be cut or not. If Sub Divisional Magistrate finds that the entire tree is to be cut, petitioner is bound to comply with that order. On the other hand, if Sub Divisional Magistrate finds that there is no likelihood of the remaining parts of the tree falling in the property of the second respondent, he shall pass an order clarifying that the tree is not to be cut and removed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006