Allowed

P.L.Jolly v. State of Kerala

Kerala HC10 Dec 2019WP(C)/695/2019

Case brief

AI extract

What is this about?

Petitioner challenged an order under Chapter X of CrPC passed by the Revenue Divisional Officer directing removal of dangerous trees. The High Court held that mandatory procedures under Sections 133-141 CrPC were not followed and particulars of trees were not specified. The order was set aside and parties directed to dispose of complaints afresh.

What did the court decide?

Impugned order set aside. Respondent directed to treat complaints as separate and dispose afresh under Chapter X CrPC.

P.L.Jolly Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2019)

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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 P.B.SURESH KUMAR

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TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941 WP(C).No.695 OF 2019(J)

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PETITIONER:

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P.L.JOLLY, AGED 56 YEARS, S/O LONAPPAN, PALATTI VEEDU, VADAMA, TRICHUR DISTRICT, PIN-680 732.

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BY ADVS. SRI.VINOD RAVINDRANATH SMT.MEENA.A. SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, THRISSUR, PIN-680 002.

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2 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, IRINJALAKUDA, PIN-680 125.

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3 THAHASILDHAR, TALUK OFFICE, CHALAKKUDY, PIN-680 307. 4 V. RADHAKRISHNAN, VADAYATH HOUSE, VADAMA P.O., TRICHUR DISTRICT, PIN-680 732. R4 BY ADV. SRI.NELSON J.MANAYIL R4 BY ADV. SRI.P.M.RAJAGOPAL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P. (C) No. 695 of 2019

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W.P. (C) No. 695 of 2019

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-----------------------------------------------

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J U D G M E N T

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Challenge in the writ petition is against Ext.P4 order issued by the second respondent, in exercise of his powers under Chapter X of the Code of Criminal Procedure for removal of public nuisance.

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The petitioner preferred a complaint before the second respondent alleging that a few trees standing in the property adjacent to the residential property of the petitioner are in dangerous position and the same are therefore to be cut and removed. Ext.P1 is the complaint. Ext.P3 is the report submitted by the Village Officer on Ext.P1 complaint. Ext.P3 affirms the case set out by the petitioner in the complaint. In the meanwhile, the fourth respondent who owns the adjacent property, preferred a complaint before the District Collector concerned alleging that a few trees standing in the property of the petitioner are also in a dangerous position and the same are also therefore liable to be cut and removed. Ext.P2 is the

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W.P. (C) No. 695 of 2019

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complaint filed by the fourth respondent to the District collector. It is seen that Ext.P2 has been forwarded to the second respondent, before whom the complaint filed by the petitioner was pending. Ext.P4 is the composite order passed by the second respondent on the complaints preferred by the parties, in terms of which the second respondent directed both parties to cut and remove the trees which are in dangerous position. Ext.P4 is under challenge in the writ petition.

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Heard the learned counsel for the petitioner as also the learned Government Pleader.

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It is conceded by both sides that the impugned

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order is one issued in exercise of the powers of the second respondent under Chapter X of the Code of Criminal Procedure. If that be so, I must point out that the petitioner could have challenged the same before the appropriate court under Section 397 of the Code of Criminal Procedure. Be that as it may, since notice was issued to the fourth respondent as early as on 09.01.2019, I think it is inappropriate at this stage to relegate the petitioner to the alternative remedy available to

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W.P. (C) No. 695 of 2019

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him.

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As noted, the impugned order is one issued in exercise of the powers under Chapter X of the Code of Criminal Procedure. Section 133 of the Code provides for a preliminary enquiry and a conditional order requiring the person causing nuisance to remove the nuisance at the first instance. Section 134 of the Code provides for serving of the conditional order on the person against whom it is made. Section 135 of the Code gives an option to the person against whom the conditional order is made either to obey or show cause before the competent authority as to why the conditional order cannot be obeyed. Section 138 provides for the procedure to be followed, if the person against whom an order is made does not obey and show cause. Section 141 of the Code deals with the procedure to be followed, if the competent authority chooses to make the conditional order absolute. None of these provisions are seen followed by the second respondent while passing Ext.P4 order. Further, the impugned order does not indicate the particulars of the trees to be cut down by both sides. It only directs the

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W.P. (C) No. 695 of 2019

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petitioner and the fourth respondent to cut down and remove the overhanging trees in their properties which are causing nuisance to the respective parties. In a case of this nature, according to me, the authority exercising power under Chapter X of the Code Of Criminal Procedure is expected to specify the particulars of the trees to be cut down for the purpose of abating the nuisance. Ext.P4 order, in the circumstances, is liable to be set aside.

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In the result, the writ petition is allowed, Ext.P4 order is set aside and the second respondent is directed to treat Exts.P1 and P2 as two separate complaints and deal with the same afresh, in accordance with the procedure prescribed in Chapter X of the Code of Criminal Procedure as expeditiously as possible.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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YKB

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W.P. (C) No. 695 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PETITION DATED 11.6.2018 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

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EXHIBIT P2 TRUE COPY OF THE COMPLAINT DATED 30.6.2018 FILED BY THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE REPORT DATED 18.7.2018 FILED BY THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 25.10.2018 PASSED BY THE REVENUE DIVISIONAL OFFICER, IRINJALAKUDA.

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PETITIONER'S/S EXHIBITS:

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//TRUE COPY//

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PA TO JUDGE

P.L.Jolly v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.L.Jolly v. State of Kerala

Case brief

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