P.K. Gopinathan vs State of Kerala

P. Ubaid, J.—The revision petitioner is aggrieved by an order passed by Sub Divisional Magistrate, Fort Kochi in his capacity as Executive Magistrate, on a complaint made by the second respondent herein. The subject matter in dispute is an old ''Anjili tree'' which according to the second respondent causes imminent danger, and her request is that it shall be ordered to be cut and removed. On the said complaint, the Sub Divisional Magistrate obtained report from the Village Officer. On the basis of report from the Village Officer, the Sub Divisional Magistrate passed provisional order under Section 133 of the Code of Criminal Procedure (for short the Cr.P.C) on 20/08/2013.

On getting the provisional order with notice the revision petitioner appeared before the Sub Divisional Magistrate and denied the allegations made by the second respondent in her complaint. On such denial, the Sub Divisional Magistrate posted the complaint for hearing. Without recording any evidence, or without conducting proper enquiry as prescribed under the law, the Sub Divisional Magistrate passed a final order on the basis of the report of the Village Officer, directing the revision petitioner herein to cut and remove the Anjili tree in question, within fifteen days. The said final order was passed on 27/01/2014. The grievance of the revision petitioner is that the impugned final order was passed without conducting necessary enquiry involving collection of evidence, as is done in a summons trial.

When the second respondent complained of imminent danger, during the proceedings before this Court, the revision petitioner was directed by this Court by order dated 24/06/2014 to take preventive measures to avoid any possible danger due to the alleged Anjili tree. Now it is submitted that the revision petitioner has already complied with the order. Photographs showing the present condition were also made available during arguments.

On hearing both sides and on a perusal of the case records including the impugned order, I find that the matter was not properly and legally dealt with by the court below. In a case like this, where serious contest is made by the other side, the Sub Divisional Magistrate will have to conduct a proper enquiry, collect all necessary and possible materials by way of evidence, and take a decision on adjudication of the dispute regarding the alleged imminent danger. The Executive Magistrate cannot act simply on the basis of the report given by any subordinate officer. The Executive Magistrate cannot even rely on the materials collected on local inspection. Those are only supporting materials. Proper evidence must be otherwise recorded by the Executive Magistrate for coming to a proper and legal decision. In this case, without recording any such evidence, the Executive Magistrate passed orders simply on the basis of what the Village Officer reported. Such is not the function of a responsible Executive Magistrate, on a complaint received under Section 133 of Cr.P.C. The Executive Magistrate must have in mind that he or she will have dual capacity; one as officer of the revenue, and the other as an Executive Magistrate exercising quasi judicial powers. I find that in appearance, the impugned order is only one passed by an officer of the revenue, and not by a responsible Executive Magistrate having quasi judicial functions. I find the absolute necessity of remanding the matter to the court below for proper procedure and legal orders. Till proper decision is taken as indicated above, the present position of the tree, with the preventive measures made by the revision petitioner, will continue.

In the result this revision petition is allowed. The impugned order of the court below is hereby set aside, and the matter is remanded to the Executive Magistrate for proper procedure and decision according to law, as indicated above. The Executive Magistrate will expedite the proceedings and take proper and legal decision within three months from the date of receipt of records in the office. The parties are directed to make appearance before the Executive Magistrate on 14/08/2014.