RAVINDRA KUMAR MALLICK Vs. NARAYAN MALLICK & ANR.

JUDGEMENT

(1.) THE petitioner in the present revision application has sought to challenge the judgment dated 16.4.2010 passed by the learned Ad hoc Addl. District and Sessions Judge, Fast Track Court No.IV, Cuttack in Criminal Revision No.37 of 2009/01 of 2010, whereby, the lower revisional court has been pleased to set aside the order dated 20.7.2009 passed by the ADCP -cum -Executive Magistrate, Cuttack in Criminal Misc. Case No.297 of 2009 wherein a proceeding under Section Cr.P.C. had come to be disposed of directing cutting down and removal of a teak tree located in the premises of the opposite parties and on finding that the said tree had in a tilted/dangerous manner over the asbestos of the dwelling house of the petitioner by creating apprehension of danger to the life and property. This act on the part of the opposite parties was held to be an amounting to public nuisance under Section 133(d) Cr.P.C. and, therefore, liable to be removed or cut down.

(2.) ON perusal of the record, it appears that the order of the ADCP -cum -Executive Magistrate came to be set aside by the lower revisional court, inter alia, on two grounds:

(3.) MS . Kasturi, learned counsel for the opposite parties, on the other hand, submitted that the allegation made by the 1st party -petitioner (informant) even under Section Cr.P.C, did not make out any case of "public nuisance" as contemplated thereunder. Apart from the aforesaid assertion, learned counsel further submitted that, the report of the I.I.C., Madhupatna P.S. itself would indicate that pursuant to the present order, there is no real danger to the dwelling house of the petitioner or the life of the petitioner and his family, since the I.I.C., has noted that the tree may only fall in the event of severe cyclone.