IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 202 of 2009()
1. P.M. THANKAMANI,
... Petitioner
Vs
1. SASIDHARAN.T.K,
... Respondent
2. T.E. RAVINDRAN,
3. T.K. SOMINI SUKUMARAN,
For Petitioner :SRI.R.MURALEEDHARAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :25/05/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.202 of 2009
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Dated this the 25th day of May, 2009.
ORDER
Order dated 28.10.2008 passed by the Sub Divisional Magistrate, Fort
Kochi is under challenge in this revision at the instance of petitioner No.1 before
the Sub Divisional Magistrate.
2. Petitioner and two others preferred a complaint to the Sub
Divisional Magistrate alleging that a poopparuthi tree standing in the property of
respondent No.1 is causing serious danger and nuisance to the petitioner and
others, the tree obstructed vehicle movement through the adjoining pathway,
may fall over electric line and result in danger to the life and property of
petitioner and others. Sub Divisional Magistrate called for a report of the Village
Officer. In the meantime petitioner filed W.P.(C) No.19838 of 2008 for
expeditious disposal of the petition. Learned Single Judge of this Court as per
judgment dated 9.7.2008 directed the Sub Divisional Magistrate to dispose of
the petition within two weeks. Sub Divisional Magistrate after considering the
report of the Village Officer passed the impugned order making the conditional
order absolute and directed respondent No.1 to cut the branches of the tree
within ten days. Petitioner is not satisfied in that, there was no direction for
removal of the tree as such and challenges that order in this revision. Learned
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counsel submits that as the tree is in dangerous condition likely to fall down at
any time, Sub Divisional Magistrate ought to have directed cutting and removal
of the tree as such rather than its branches.
3. I am not going into the correctness of the order passed by the Sub
Divisional Magistrate as to whether the conditional order could have been made
absolute on the materials on record. Presently I am concerned only with the
question whether the Sub Divisional Magistrate should have directed cutting and
removal of the tree as such. Though petitioner and others alleged that tree as
such is standing in a dangerous condition, it is seen from the report of the
Village Officer that he has only stated that a branch of the tree is leaning
towards the house of petitioner. In the complaint filed before the Sub Divisional
Magistrate, petitioner has stated that the branches of the tree are crossing over
the electric line and during rainy season such branches may fall over electric
line causing danger to the petitioner and others. Though Village Officer stated
that either the tree or branches of the tree as such may be cut and removed, he
has not stated in what way the tree is in dangerous condition. Sub Divisional
Magistrate has also not recorded evidence in the matter. He has merely placed
reliance on the report of the Village Officer without complying with the provisions
of Section 138 of the Code of Criminal Procedure (for short, “the Code”). The
conditional order issued by the Sub Divisional Magistrate under Section 133 of
the Code only directs cutting and removal of the branch. That conditional order
is not under challenge at the instance of petitioner. Therefore, Sub Divisional
Crl.R.P.No.202/2009
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Magistrate could not have directed cutting and removal of the tree as such on
the basis of the conditional order already issued.
4. At this stage, learned counsel for petitioner requests that the right
of the petitioner and others to file fresh petition for cutting and removal of the
tree may be left open. I make it clear that if circumstances so warranted
petitioner or other person having locus standi in the matter would be entitled to
do so if they are otherwise entitled to such a course.
With the above observation, revision petition is dismissed.
THOMAS P.JOSEPH,
Judge.
cks