BHASKARAN NAIR Vs. SAMUEL
HIGH COURT OF KERALA
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(1.) In proceedings initiated under S.133 of the Code of Criminal Procedure at the instance of A party, the Executive First Class Magistrate, Chengannur, after considering reports received from the Tahsildar, Chengannur, passed a conditional order calling upon the B party to cut and remove a coconut tree stated to be in a dangerous condition or in the alternative to show cause why the order should not be made absolute. The B party appeared in court and filed a written statement on 1-12-73 denying the allegations and contending that there was no danger to the property of the A party as alleged. The case stood posted to 15-12-1973 for evidence. On that day the A party was absent. The B party was present. The Magistrate ordered summons to A party. The case came up again on 19-1-74. The A party was present on that day; but the B party was absent. The court, without any further enquiry into the matter, held that it was necessary to take action as indicated in the conditional order. The B party was accordingly directed under S.140(1) of the Crl. P. C., to cut and remove the coconut tree. The revision petition is filed against the above order.
(2.) The revision petitioner's case is that the procedure followed by the Magistrate was irregular and illegal and contrary to the provisions of the Criminal Procedure Code.
(3.) S.133 to 137 and 140 of the Cr. P. C., deal with the law relating to the matter. Under S.133, the Magistrate is competent to pass a conditional order calling upon the owner of a property to remove trees which are a source of damage to a neighbouring property and its owner. The conditional order should be served on the concerned person as directed in S.134. The person against whom the order is made should either comply with the directions in the order or appear in accordance with the order and show cause against the order. This is provided in S.135. In case he defaults to perform the act as directed or to show cause, he would be liable to the penalty prescribed in S.136. S.137 states that if he appears and shows cause, the Magistrate should take evidence in the matter as in a summons case. If after recording the evidence, the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings should be taken. If he is not satisfied, the order should not be made absolute. S.140 deals with the procedure on the order being made absolute and the consequences of disobedience to order.;
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