E PREMAN Vs. M P ANDY

JUDGEMENT

(1.) IN this revision Petition the revision petitioner is challenging the order dated 24.12.1986 in Reference No.5066/02/85 on the file of the Court of the Sub Divisional Magistrate (Executive), Mahe. A few facts are essential to be stated in this case. The revision petitioner and the sole respondent are neighbours. There is admittedly a tree situated in the house of the revision petitioner. On 28.9.1985 the respondent gave a complaint to the Executive Magistrate, complaining that the existence of the tree in the hours of the revision petitioner is a source of nuisance not only to his personnel safety but also to his property. IN other words him grievance was that the tree is situated in such a manner that it is likely to fall at any time on his house and thereby cause danger to his personal safety as well as damages to the property. On this basis he moved the Executive Magistrate to take appropriate steps to protect him.

(2.) THE Executive Magistrate passed an order under Sec.133 of the Code of Criminal Procedure on 2.12.1985, directing the removal of the tree as a whole. THEreafter, the revision Petitioner filed a petition before the Sub Divisional Magistrate stating that the petition moved by the respondent would not come within the purview of Sec.133 of Crl.P.C. He had further stated in that petition that if the tree is removed, it would hurt the religious feelings of several people. It is his further case that the respondent in the revision petition knowing fully well about the existence of the tree, had constructed his house underneath the tree and having done so, it is not open to him now to complain. On the basis of the petitioner, he wanted the order to be rescinded. It appears the Executive Magistrate by his proceedings dated 22.9.1986 intimated both the revision petitioner and the respondent about his proposed inspection of the site on 25.9.1986 at 11.30 a.m. It is not disputed that this notice was not served on either of the parties. THEreafter, after conducting the local inspection pursuant to the notice referred to earlier, the Executive Magistrate passed as order on 24.12.1986 in and by which he directed that instead of removal of the tree as a whole, it is enough if the breaches that protrudes and extend over the respondent's house property need be out and removed. This order is challenged in this revision petition.

(3.) THE next stage that follows is provided for in Sec.130 of the Code of Criminal Procedure. Though Sec. 138(1) says that the Magistrate shall take evidence in the matter as in as summons case on the aggrieved person showing cause against the order, yet I am of the view that on the facts of the case, regarding of evidence as provided for is Sec.138 would not arise at all. THE emphasis is on the word "shows cause". I have already found that the revision petitioner had not shown any cause at all to defeat the rights of the respondent as provided for in Sec.l33(1)(d) of the Code. THE Magistrate exercising the power either under Sec.137 or under Sec.138 of the Code is given a power to direct a local investigation to be made by such person as he thinks fit. In this case, the local investigation has been done by himself on 25.9.1986, long after the preliminary order and three months before the final order under Sec.138. THErefore, the Magistrate making a local investigation by himself in order and on such investigation, he should have come to the conclusion that the uprooting of the entire tree itself is not necessary and in that context, his original order dated 2.12.1985 needs modification. Only in this back ground, the learned Magistrate had passed an impugned order dated 24.12.1986.