Going by the above provision, it can be seen that
only a conditional order can be issued under Section
133 CrPC, giving an opportunity to show cause for
not making the order absolute and that an
absolute/final order can be issued only under
Section 138 CrPC. In the event, the party aggrieved
opposes the notice and shows cause for not
complying with the conditional order, it is for the
lower authority to conduct enquiry and decide the
case on merits. Here no any such procedure is seen
followed by the lower authority. The notice dated
20/9/2005 would not show that any opportunity was
given to the petitioner to show cause for not
complying with the order. Though the revision
petitioner denied any further threat, without any
enquiry or finding regarding any threat to be abated,
Annexure A1 order was issued. It is clear violation
of the procedure laid down by CrPC. Therefore, it
would go without saying that the order impugned is
not sustainable and liable to be interfered.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 700 of 2006 ( )
-------------------------------
V.P.SUBAIDA, W/O.SIDHIQUE,
V
1. REVENUE DIVISIONAL OFFICER,
OTTAPALAM.
Dated this the 9th day of October, 2012
Citation ;2013 CR LJ(NOC)163 kerala
O R D E R
Assailing the legality, correctness and propriety
of Annexure A1 order dated 16/2/2006 purporting to
have been issued under Section 133 (1) of the Code
of Criminal Procedure (CrPC) by the Sub Divisional
Magistrate, Ottappalam, this revision petition is
preferred. Annexure A1 order reads as follows:
"Village Officers's report dated
21/10/2005-It is reported that after
receive the notice the respondent
has cut and remove some branches of
trees which caused nuisance to the
property of the petitioner and two
coconut trees has been tied with
stay wire-but it is also reported
that, on enquiry it is known that
one coconut tree belonging to the
respondent standing near the house
of petitioner is to be cut and
removed to abate this threat."
Going by Annexure A1 order, I could not make out
any head or tail out of it.
2. The records were called for. The records do
not contain any such order. Whereas it would
contain a copy of the order dated 20/9/2005 issued
as if a notice. The operative portion of the order
reads as follows:
"In this circumstance, inview of the
report submitted by the village
officer, Chalavara, I hereby direct
the respondent Siddique to cut and
remove/tie with stay wire the
trees/branches of trees which are
found to be pausing threat to the
life and property of the petitioner
within 7 days in receipt of this
notice without fail in the presence
of the village officer, Chalavara."
The above order would show that there is a mandate
directing the revision petitioner to cut and
remove/tie with stay wire the trees/branches of
trees which are found to be pausing threat to the life
and property of the petitioner within seven days.
Records also would show that the petitioner filed
objection stating that she had cut down branches of
trees which paused threat and coconut trees were
tied with stay wire and there is no further threat.
3. There is no whisper in the order that in
fact, the lower authority had considered the
objection raised by the petitioner and arrived at a
conclusion that any of the trees are further threat to
the life and property of the defacto complainant.
Whatever it may be, I find that neither Annexure A1
order or the notice is in compliance of Section 133
CrPC which reads as follows:
"133.Conditional order for removal of
nuisance.--(1)Whenever a District
Magistrate or a Sub-divisional
Magistrate or any other Executive
Magistrate specially empowered in this
behalf by the State Government, on
receiving the report of a police
officer or other information and on
taking such evidence (if any) as he
thinks fit, considers--
(a) that any unlawful
obstruction or nuisance should be
removed from any public place or
from any way, river or channel which
is or may be lawfully used by the
public; or
(b) that the conduct of any
trade or occupation, or the keeping
of any goods or merchandise, is
injurious to the health or physical
comfort of the community, and that
in consequence such trade or
occupation should be prohibited or
regulated or such goods or
merchandise should be removed or the
keeping thereof regulated; or
(c) that the construction of
any building, or, the disposal of
any substance, as is likely to
occasion conflagration or explosion,
should be prevented or stopped; or
(d) that any building, tent
or structure, or any tree is in such
a condition that it 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
the removal, repair or support of
such building, tent or structure, or
the removal or support of such tree,
is necessary; or
(e) that any tank, well or
excavation adjacent to any such way
or public place should be fenced in
such manner as to prevent danger
arising to the public; or
(f) that any dangerous animal
should be destroyed, confined or
otherwise disposed of,
Such Magistrate may make a conditional
order requiring the person causing
such obstruction or nuisance, or
carrying on such trade or occupation,
or keeping any such goods or
merchandise, or owning, possessing or
controlling such building, tent,
structure, substance, tank, well or
excavation, or owning or possessing
such animal or tree, within a time to
be fixed in the order--
(i) to remove such obstruction
or nuisance; or
(ii) to desist from carrying
on, or to remove or regulate in such
manner as may be directed, such trade
or occupation, or to remove such goods
or merchandise, or to regulate the
keeping thereof in such manner as may
be directed; or
(iii) to prevent or stop the
construction of such building, or to
alter the disposal of such substance;
or
(iv) to remove, repair or
support such building, tent or
structure, or to remove or support
such trees; or
(v) to fence such tank, well
or excavation; or
(vi) to destroy, confine or
dispose of such dangerous animal in
the manner provided in the said order;
or, if he objects so to do, to appear
before himself or some other Executive
Magistrate subordinate to him at a
time and place to be fixed by the
order, and show cause, in the manner
hereinafter provided, why the order
should not be made absolute.
(2) No order duly made by a
Magistrate under this section shall be
called in question in any Civil Court.
Explanation.--A "public place"
includes also property belonging to
the State, camping grounds and grounds
left unoccupied for sanitary or
recreative purposes."
Going by the above provision, it can be seen that
only a conditional order can be issued under Section
133 CrPC, giving an opportunity to show cause for
not making the order absolute and that an
absolute/final order can be issued only under
Section 138 CrPC. In the event, the party aggrieved
opposes the notice and shows cause for not
complying with the conditional order, it is for the
lower authority to conduct enquiry and decide the
case on merits. Here no any such procedure is seen
followed by the lower authority. The notice dated
20/9/2005 would not show that any opportunity was
given to the petitioner to show cause for not
complying with the order. Though the revision
petitioner denied any further threat, without any
enquiry or finding regarding any threat to be abated,
Annexure A1 order was issued. It is clear violation
of the procedure laid down by CrPC. Therefore, it
would go without saying that the order impugned is
not sustainable and liable to be interfered.
In the result, this revision petition is allowed.
Annexure A1 order would stand set aside. The
matter is remitted back to the lower authority for
fresh disposal on merits in accordance with the
procedures laid down after giving an opportunity to
the petitioner to raise her objection.
Sd/-
P.S.GOPINATHAN
JUDGE
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