CRL.REV.PET NO. 229 OF 2021 (Crl.R.P. 229/2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943** **CRL.REV.PET NO. 229 OF 2021** **MC3/55/2015 OF SUB DIVISIONAL MAGISTRATE COURT, THIRUVANANTHAPURAM** ## **REVISION PETITIONERS/OPPOSITE PARTY:** - **1 P.RAVEENDRAN AGED 78 YEARS S/O.PONNAN, T.C.NO.42/509, CHITHRA, B.N.R.A.-107, VALLAKKADAVU, THIRUVANANTHAPURAM 695 008** - **2 ASHA I AGED 44 YEARS** - **D/O.RAVEENDRAN, T.C.NO.42/509 (1), 'KULIRMA', B.N.R.A.107, VALLAKKADAVU, THIRUVANANTHAPURAM 695 008** **BY ADVS. JOJI GEORGE JACOB SRI.RAAJESH S.SUBRAHMANIAN SRI.V.R.RAJESH** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 REVENUE DIVISIONAL OFFICER THIRUVANANTHAPURAM 695 043** - **2 TAHSILDAR TALUK OFFICE, KOTTAKKAIKAKAM, THIRUVANANTHAPURAM 695 023** - **3 VILLAGE OFFICER MUTTATHARA VILLAGE, THIRUVANANTHAPURAM 695 009** - **4 STATION HOUSE OFFICER FORT POLICE STATION, THIRUVANANTHAPURAM 695 009** - **5 RAJESH KUMAR S. T.C.NO.42/510(2), RAJASHREE, B.N.R.A-109, SREEVARAHAM, VALLAKADAVU, THIRUVANANTHAPURAM 695 008** - **BY ADVS.N.S.GOPAKUMAR- R5 T.VENUGOPAL- R5 S.MOHANA KUMARAN NAIR** Crl.R.P.229/2021 2 ## **OTHER PRESENT:** **PP - SRI. M.C.ASHI – R1 TO R4** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05.11.2021, THE COURT ON 20.12.2021 DELIVERED THE FOLLOWING:** Crl.R.P.229/2021 3 ## **O R D E R** This is a revision filed under Sections 397 and 401 of the Code of Criminal Procedure challenging the legality and correctness of the order passed by the 1[st] respondent Sub Divisional Magistrate, Thiruvananthapuram in M.C3/55/15 of the Court of the Sub Divisional Magistrate, Thiruvananthapuram. The sequence of events that led to the passing of Annexure-D order which is under challenge is as follow: First petitioner is the father of the 2[nd] petitioner. The 2[nd] petitioner is the owner in possession of 9 cents of property in R.Sy. 204/A4 and 204/3-1 of Muttathara village in Thiruvananthapuram. There are two high yielding coconut trees standing near to the boundary of that property. The 5[th] respondent is the resident on the adjacent property of the petitioners. Complaining that two yielding coconut trees on the boundary of the property of the petitioners are standing leaning to the property of the 5[th] respondent, that they cause hazards to the life and property of the 5[th] respondent, he moved a petition under Section 133 of the Cr.P.C. before the 1[st] respondent. The 1[st] respondent by Annexure-A order dt.26.03.2015, after obtaining a report from the Tahsildar, passed a preliminary order directing the petitioners to cut and remove these coconut trees within 14 Crl.R.P.229/2021 4 days therefrom and also show cause as to why the said order shall not be made permanent. Thereafter by Annexure-B order, after hearing both sides, the preliminary order was made permanent. The Executive Magistrate, the Tahsildar, on the basis of Annexure-A order found that both the coconut trees are causing threat to the life and property of the 5[th] respondent, issued the order under Section 138 of the Cr.P.C. making the earlier order absolute and directing the petitioners who are the counter petitioners, to cut and remove the two coconut trees within 14 days therefrom and that if it is not obliged, it would be cut and removed at the cost and expense of the State. According to the petitioners, thereafter, by Annexure-C order dt. 27.01.2018 the 3[rd] respondent Executive Magistrate had found that the petitioners had tied the coconut trees safely, abating the threat posed to the property of the 5[th] respondent and passed order directing to safely tie the coconut trees abating the apprehension raised by the 5[th] respondent and also to install iron net, so that the nuts from the trees shall not fall on the property of the 5[th] respondent. Later, under Annexure-D order dt. 24.08.2019, an order was passed under Section 138(2) of the Cr.P.C. directing the petitioners to cut and remove the coconut trees within 14 days and aggrieved by the same the petitioners have moved this Court in revision. Crl.R.P.229/2021 5 2. The 5[th] respondent filed a counter affidavit. According to him, they are neighbours as well as close relatives and are sharing a common boundary. When the two coconut trees were posing threat to his life and property, he asked the petitioners to cut and remove the same, which was not heeded to and then he moved the 1[st] respondent with a complaint and that was how proceedings under Section 133 of the Cr.P.C. were initiated and orders were passed. According to him, the petitioners have submitted to the jurisdiction of the Sub Divisional Magistrate and now, even after six years of passing the proceedings, Annexures A and B orders have not been complied and now they have moved in revision for protracting the proceedings. According to him, they have come with unclean hands. So the revision is sought to be dismissed. 3. I heard the the learned counsel for the petitioners and also the learned Public Prosecutor as well as the learned counsel for the 5[th] respondent. 4. The learned counsel for the petitioners submitted that Section 133 of the Cr.P.C. falls under the subtitle of 'public nuisance'. Here it is not a public nuisance but only a civil dispute between two neighbours. Still the Revenue Divisional Officer entertained the complaint and passed orders for which he is totally incompetent. In this connection he placed reliance on Crl.R.P.229/2021 6 the decision reported in **Balkees v. Revenue Divisional Officer, Fort Kochi and others [2013 (2) KHC 865]** . According to him, Section 138(2) of the Cr.P.C. cannot be invoked for redressal of the private grievance. If only there is a public nuisance or a public right involved, the RDO is justified in intervening. He also pointed out that one of the trees has already been cut and removed and the other has been tied and the threat has been abated. According to him, the proceedings were initiated in 2015; Annexure-A order was passed on 26.03.2015. Even after the lapse of more than six years no threat has been caused to the life and property of the 5[th] respondent and that itself is sufficient to say that the allegations of the 5[th] respondent were without any basis. 5. On the other hand, the learned counsel for the 5[th] respondent has strongly supported the decision of the RDO. According to him, referring to Annexures-R5(a) to R5(f) documents he said that even though the petitioners have attempted to exert political pressure on the Revenue Divisional Officer, he did not yield to the same. There is no civil dispute involved but only the threat posed by the trees which are leaning on the house and property of the 5[th] respondent; after convincing about the threat, the 2[nd] respondent passed orders which has been made absolute and there is absolutely no necessity to interfere in revision. He also placed reliance on Crl.R.P.229/2021 7 the decision reported in **Jayakrishna Panigrahi and others v. Hrushikesh Panda [1992 KHC 1260],** a decision rendered by a Division Bench of the Orissa High Court, and contended that application by a single individual under Section 133(1)(d) of the Cr.P.C. would be maintainable if the building, tent or structure or any tree is in such a condition that the same is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by. 6. According to the learned counsel for the 5[th] respondent, the 1[st] petitioner has no right over the property; 2[nd] petitioner and her husband are employees in the Secretariat and they had tried to influence the RDO through the then Private Secretary of the Chief Minister, that was how Annexure R5(a) a petition given by the 1[st] petitioner was acted upon on the very day, that is on 01.10.2019 itself. Thereafter the 1[st] respondent had given a proper reply stating that two trees are posing threat to the life and property of the 5[th] respondent. Referring to Annexure-R5(d) he said that it is a counter blast; the 2[nd] petitioner had made attempts to get an order passed against the 5[th] respondent. But Annexure-R5(f) indicates that, that was a futile exercise made by the 2[nd] petitioner. So, according to the learned counsel, the petitioners are not entitled to get an order in revision. He also submitted that the decision in **Balkees** , quoted supra, relied on by Crl.R.P.229/2021 8 the learned counsel for the petitioners is not applicable since the facts are different. 7. The sequence of events have already been narrated. Annexure-A order was a preliminary order passed by the 1[st] respondent following which Annexure-B was passed under Section 138(2) of the Cr.P.C. Still, later under Annexure-C the 2[nd] respondent made a retreat and said that the trees are not posing threat to the life and property of the 5[th] respondent and that was how Annexure-C order was passed under Section 138(2) of the Cr.P.C. All the same, it is not understood as to how such an order could be passed on 27.01.2018 after passing Annexure-B order on 25.04.2017, after making the preliminary order absolute. Whatever it may be, any mischief or confusion that has been created under Annexure-C order stands rectified and undone by Annexure-D order dt.24.08.2019 and ultimately the final order is Annexure-D whereby the petitioners have been directed to cut and remove the two coconut trees which are standing leaning to the property of the 5[th] respondent. Such an order was passed after local inspection and after convincing the Executive Magistrate that the two trees are posing real threat to the life and property of the 5[th] respondent. 8. In the nature of the order proposed to be passed, it is not Crl.R.P.229/2021 9 necessary to advert to the documents relied on by the 5[th] respondent. However, it is clear that the 1[st] petitioner had moved a petition before the Chief Minister on the basis of which a report was called for from the 1[st] respondent and Annexure-R5(c) report was given on 26.10.2019, which is almost on the same lines in Annexure-D order. After that, no action was taken from the office of the Chief Minister. The complaint of the 5[th] respondent is that it was under the influence of the petitioners that the then Private Secretary of the Chief Minister had acted upon and that their clout is still continuing, that is why the order passed by the RDO is not being implemented. 9. Annexure-C order, no doubt, is illegal. It has been passed after making the preliminary order permanent under Annexure-B order dt. 25.04.2017. It is not known as to how the Executive Magistrate gets jurisdiction to review an order passed under Annexure-B. Annexure-B was passed after affording opportunity to the petitioners as to why the two trees shall not be cut and removed. He was heard and after making a local inspection, finding that the trees are posing threat to the life and property of the 5[th] respondent that the order was passed. Thereafter, it appears, on the basis of a representation given by the petitioners that Annexure-C order was passed. Anyhow that is illegal, the Sub Divisional Magistrate or the Crl.R.P.229/2021 10 Executive Magistrate did not have authority to review an earlier order. Moreover, Annexure-C order does not stand to reason also. It does not make any positive order. Whatever it may be, so long as Annexure-D order has already been issued, nothing more need be observed about Annexure-C. 10. Turning to Annexure-D, the prime contention of the petitioner is that it being a public right the RDO does not have jurisdiction. But, for reasons more than one, such contentions cannot be upheld. Firstly, even though Section 133 of the Cr.P.C. falls under the sub-head 'public nuisance', it deals with various shades of private nuisance. Section 133(1) (d) enables the District Magistrate or Sub Divisional Magistrate or any other Executive Magistrate empowered therefrom to take action if any building, tent or structure or any tree in such a condition that the same is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by and that in consequence of the removal, repair or support of such building, tent or structure or removal of support of such a tree is necessary. In other words, the prime consideration is the posture of the building, tent or structure or tree and if it causes any injury to the persons or business carried on in the neighbourhood, then the aggrieved can approach the District Magistrate or Sub Divisional Crl.R.P.229/2021 11 Magistrate or Executive Magistrate for getting it removed. That means, even if it falls under a public nuisance, going by the plain reading of Section 133(1)(d) of the Cr.P.C., in the given set of circumstances, the Sub Divisional Magistrate or the Executive Magistrate is entitled to act upon. 11. Secondly, in a given situation, in the decision reported in **Balakrishnan Nambiar v. Madhavan Nambiar [1985 KLT 425]** , this Court considered the maintainability of such a matter before the Sub Divisional Magistrate. In the said decision, the learned single Judge held that even though the matter does not fall under Section 268 of the Indian Penal Code, Section 133 suggests that the term public nuisance is used to cover several kinds of nuisances enumerated therein. Even if the definition contained in Section 268 of the Indian Penal Code is taken as relevant, for the purpose of interpretation with regard to general definitions, the general definition will have to yield is a different intention appears from the subject or conduct of the provision which if applicable. According to the learned Judge, such a different intention is clear from Section 133 of the Code and therefore that intention will have to prevail in preference to the general definition contained in Section 268 of the Indian Penal Code. 12. The learned Judge proceeded to say that if a building, tree or structure is in such a condition that it is likely to fall and thereby cause Crl.R.P.229/2021 12 injury to persons living or carrying on business in the neighbourhood or passing by, Section 133(1)(d) of the Cr.P.C. can be applied. Referring to the decisions reported in **State v. Chacko [1961 KLT 190]** and **State v.** **Kochu [1959 KLT 929]** the Court held that such a complaint will lie before the Sub Divisional Magistrate. According to the learned Judge, even in such cases, the possible dangerous condition mentioned in Section 133(1)(d) is treated as a public nuisance, even though it may not strictly come within the definition contained in Section 268 of the Indian Penal Code. Even in such contingencies, Section 133 of the Code makes it the duty of the Magistrate to avert such danger as if it is a public nuisance. I am in respectful agreement with the observations made by the learned Judge. This decision has been followed by another learned single Judge in **Khader v. State of Kerala [2007 (1) KLT 576]** . 13. It may be true that the 5[th] respondent could move the civil court. All the same, he approached the Sub Divisional Magistrate and the Sub Divisional Magistrate issued notice and following the procedures Annexure-D order was passed. The Executive Magistrate had conducted local inspection and satisfied himself that two coconut trees are posing real threat to the life and property of the 5[th] respondent. That was how an order was passed, that too after affording sufficient opportunity to the petitioners Crl.R.P.229/2021 13 to raise their contentions on the subject. In other words, the order was passed by following the procedural formalities. 14. There are two circumstances to indicate that the petitioners have never disputed the competency of the Sub Divisional Magistrate or the Executive Magistrate to pass orders in the given circumstances. Firstly, as stated earlier, they co-operated with the enquiry conducted by the Sub Divisional Magistrate and the Executive Magistrate and that after hearing them only the impugned order was passed. In other words, as rightly pointed out by the learned counsel for the 5[th] respondent, they yielded to the jurisdiction and now there is no point in turning round and say that he has no jurisdiction, that no public right involved, etc. Secondly, the Annexure-R5(d) complaint suggests that on a similar circumstance the 2[nd] petitioner had moved a petition before the 1[st] respondent stating that a tree standing in the property of the 5[th] respondent poses threat to the life and property of the petitioners. This was considered and a report was called for from the Village Officer and Annexure-R5(f) is the report which indicates that such a tree remains about two metres away from the boundary wall of the property and that it does not pose any threat to the habitation of the petitioners. In other words, the petitioners cannot be heard to contend that the Sub Divisional Magistrate is incompetent to take up a matter of this Crl.R.P.229/2021 14 nature. 15. As indicated earlier, documents produced by the parties do indicate that the posture of two coconut trees created hazard to the life and property of the 5[th] respondent and that was how Annexure-D order was passed. It appears that one of the trees has already been cut and removed and one is still remaining. I have no doubt that Annexure-D order is liable to be obeyed by the petitioners. The order under challenge is fully justified. The revision is only to be dismissed. Dismissed. Sd/- **K.HARIPAL JUDGE** okb/17.12 //True copy// P.S. to Judge Crl.R.P.229/2021 15 ## **APPENDIX OF CRL.REV.PET 229/2021** PETITIONER ANNEXURES ANNEXURE A COPY OF THE ORDER DATED 26/3/2015 PASSED BY THE 1ST RESPONDENT. ANNEXURE B TRUE COPY OF ORDER DATED 25.4.2017 PASSED BY THE 2ND RESPONDENT. ANNEXURE C TRUE COPY OF ORDER DATED 25.4.2017 PASSED BY THE 2ND RESPONDENT. ANNEXURE D COPY OF THE CONFIRMATION ORDER DATED 24.8.2019 ISSUED BY THE 2ND RESPONDENT.