Partly allowed

Christiandues v. State of Kerala

Kerala HC26 Jun 2012Crl.Rev.Pet/1299/2012

Case brief

AI extract

What is this about?

Kerala High Court set aside the order dismissing a revision petition challenging an Executive Magistrate's order directing defendants to remove dangerous coconut trees. The court remitted the matter for fresh disposal to ensure interests of justice, as the related case involving the same trees was remitted due to lack of hearing opportunity.

What did the court decide?

Order dated 15-07-2008 in M.C. No. 6/2008 set aside; case remitted for fresh disposal along with M.C. No. 40/2008.

Christiandues Vs State of Kerala — Landlord and Tenant | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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TUESDAY, THE 26TH DAY OF JUNE 2012/5TH ASHADHA 1934

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Crl.Rev.Pet.No. 1299 of 2012 (B)

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IN M.C. NO. 6/2008 OF THE COURT OF EXECUTIVE MAGISTRATE, NEYYATTINKARA & IN M.C. NO. 40/2008 OF SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM IN CRL.R.P.165/2008 AND R.P. 1/2009 of THE COURT OF DISTRICT JUDGE,THIRUVANANTHAPURAM

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REVISION PETITIONER/COUNTER PETITIONER:

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CHRISTIANDUES, AGED 51 YEARS S/O.VARGHESE, AVLG HOUSE, AMBALATHINMOOLA CHOVARA P.O.,ADIMALATHURA, KOTTUKKAL VILLAGE THIRUVANATHAPURAM

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BY ADVS.SRI.R.T.PRADEEP

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SRI.P.BIJIMON

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RESPONDENTS/PETITIONERS:

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1. STATE OF KERALA

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REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA

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ERNAKULAM

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2. ROSE MARY, , AGED ABOUT 52 YEARS

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ROSE HOUSE, ADIMALATHURA, KOTTUKKAL VILLAGE

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THIRUVANANTHAPURAM

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3. JOSEPH AMBALATHUMOOLA PURAMBOKE PURAYIDAM, ADIMALATURA CHOWARA P.O.,THIRUVANANTHAPURAM

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R1 BY PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR

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R2 BY ADV. SRI.RAM MOHAN.G.

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR

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ADMISSION ON 26-06-2012, THE COURT ON THE SAME DAY PASSED THE

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FOLLOWING:

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C.T. RAVIKUMAR, J.

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===========================

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C RL. R.P. NO. 1299/2012

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===========================

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Dated this the 26^th day of June 2012

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O R D E R

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This revision petition has been filed against the order

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dated 15-07-2008 in M.C. No. 6/2008 by the Executive Magistrate,

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Neyyattinkara.

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With respect to the alleged threat on account of the

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three coconut trees leaning into the property of the 2^nd respondent, the 2^nd respondent filed M.C.No. 6/2008 under Section 133 of the Code of Criminal Procedure. A preliminary order under Section 133 was passed thereon by the Sub Divisional Magistrate, Thiruvananthapuram and the revision petitioner herein was directed to cut and remove the said three trees or to appear before the Tahsildar/Executive Magistrate, Neyyattinkara on 6-3-2008 and to show cause why the order should not be enforced. The petitioner appeared and shown cause.

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C RL. R.P. NO. 1299/2012 #2#

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However, in the meanwhile, the petitioner himself moved the Sub Divisional Magistrate, Thiruvananthapuram by filing M.C.No. 40/2008 under Section 133 of the Code of Criminal Procedure alleging that a coconut tree stands in a dangerous position in the property of the 2^nd respondent. A conditional order was passed in M.C.No. 40/2008 as well and it was also forwarded to the Executive Magistrate/Tahsildar, Neyyattinkara directing the parties to appear before the Executive Magistrate on 9-4-2008. Ultimately, both the complaint were taken together and jointly heard by the Executive Magistrate and a common order dated 15-7-2008 was passed. As per that order both the petitioner and the 2^nd respondent were directed to cut and remove the dangerously standing coconut trees mentioned in their respective petitions. Subsequently, based on an order of the Upa Lok Ayuktha the Sub Divisional Magistrate passed an order dated 15-12-2008 that the revision petitioner herein to cut and remove the coconut tree which is, in fact, a further order was passed under Section 141 of the Code of Criminal Procedure. That was taken up before the Sessions Court by the revision petitioner herein by filing Crl.R.P.No.

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C RL. R.P. NO. 1299/2012 #3#

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1/2009. The 2^nd respondent also approached the Sessions Court by filing Crl.R.P.No. 165/2008 challenging the order passed in M.C. 40/2008 under Section 138 of the Code of Criminal Procedure. Those revision petitions were heard and jointly disposed of by Annexure-1 common order. As per the said common order, a revision petition filed by the revision petitioner herein viz; Crl. R.P.No. 1/2009 was dismissed. The revision petition filed by the 2^nd respondent herein viz; Crl.R.P. 165/2008 was allowed and the order passed by the Executive Magistrate, Neyyattinkara in M.C.No. 40/2008 was set aside and M.C.No. 40/2008 was remitted to that court for fresh disposal in accordance with law. The Executive Magistrate was directed to take M.C. No. 40/2008 on file and give notice to both parties in their correct address and pass appropriate orders after affording proper opportunities. It is in the said circumstances that the petitioner filed this revision petition challenging the order dated 15-7-2008 in M.C. 6/2008 passed by the Executive Magistrate, Neyyattinkara.

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Though the issues in M.C.No. 6/2008 and 40/2008

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C RL. R.P. NO. 1299/2012 #4#

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pertain to the coconut trees dangerously standing in the properties of the respective counter petitioners therein evidently, both the case were jointly taken up for consideration and disposed of as per a common order dated 15-7-2008. It is true that the subsequent order dated 15-12-2008 passed in M.C.No. 6/2008 was confirmed as per Annexure-I order. The order in M.C.No. 40/2008 was obviously, interfered with on the ground that no opportunity was given to the 2^nd respondent herein to appear and file objection in M.C.No. 40/2008. A perusal of Annexure-I would reveal that the order in M.C.No. 6/2008 was affirmed on the ground that the revision petitioner herein had not challenged the same by filing a revision. The subsequent order dated 15-12-2008 was passed based on the order of the Upa Lok Ayukta. It is a fact that both the parties appeared before the Executive Magistrate/Tahsildar, Neyyattinkara on receiving the copies of the preliminary orders passed by the Sub Divisional Magistrate in the M.C. Case wherein each of them was made the counter-petitioner. It is thereafter, that a common order dated 15-7-2008 was passed. Going by the provisions under Section 138 Cr.P.C., when the person against

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C RL. R.P. NO. 1299/2012 #5#

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whom an order under Section 133 was made appears and shows cause the Magistrate is bound to take evidence in the matter as in a summons case. There is nothing on record to show that evidence was taken in those cases as in a summons case. Above all, the said order would reveal that the Executive Magistrate had caused an inspection of the site in question through the Section Superintendent and going by the report which was relied on by the Executive Magistrate the coconut trees standing in the properties belonging to both the parties stand in dangerous position. I referred to the said aspect only to bring home the point that, in such circumstances, when M.C.No. 40/2008 is remitted for fresh disposal interest of justice demands a fresh consideration of M.C.No. 6/2008 as well while taking up M.C.No. 40/2008 for consideration. According to me, non-interference in the said circumstances would result in miscarriage of justice.

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In the said circumstances, to bring substantial justice the

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order in Annexure-I in so far as it pertains to M.C.No. 6/2008 is set aside. The order passed on M.C. 6/2008 by the Executive Magistrate,

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C RL. R.P. NO. 1299/2012 #6#

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Neyyattinkara is also set aside for that purpose. Consequently, M.C.No. 6/2008 is also remitted to that court for fresh disposal along with M.C. No. 40/2008.

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The learned Counsel on both sides submit that since the

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matters are pending for a long time, proper directions may be issued to the Executive Magistrate for expeditious disposal of the cases. I am of the view that it is only proper for the Executive Magistrate, Neyyattinkara to expediate the disposal of M.C.Nos. 6/2008 and 40/2008 after affording opportunities to both the parties as has been ordered in Annexure-I order of Sessions Court. The parties shall also co-operate for an expeditious disposal.

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The revision petition is disposed of accordingly.

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kvr/

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Sd/C.T. RAVIKUMAR JUDGE /True Copy/ P.A. to Judge

Christiandues v. State of Kerala

Case brief

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Christiandues v. State of Kerala

Case brief

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