MUKHTAR AHMAD MIR Vs. GHULAM RASOOL MIR

JUDGEMENT

(1.) Respondent despite service has not chosen to appear. Heard learned counsel for the petitioner in absence of Respondent. Petitioner had filed an application before Executive Magistrate 1st Class (Tehsildar North), Srinagar projecting therein that the respondent has planted poplar trees near the divisional line of his residential house which has become a source of nuisance as during winds, hailstorm, heavy rains and earthquake, there is every apprehension of fall of the trees which can damage the lives and property of the applicant (petitioner herein). In addition thereto, in autumn season, leaves of the trees fall in the lawns of the applicant which breed mosquitoes, cockroach, cut-worms etc. the pollen of said poplar trees is also a cause of concern being a health hazard. The Executive Magistrate 1st Class had called report from the field staff and finally passed a conditional order in terms of Section 133 Cr.P.C. on 27.09.2013 whereunder respondent had been asked to remove/cut down the trees within 20 days positively. The respondent had been given liberty to file objections or seek modification of the order and also to file objections as to why the said conditional order shall not be made absolute. Next date had been fixed on 17.10.2013.

(2.) The order dated 27.09.2013 passed by the Executive Magistrate was challenged by medium of revision petition before the Court of learned Sessions Judge, Srinagar which came to be assigned to the Court of 1st Additional Sessions Judge, Srinagar. The revision petition has been allowed and the order set aside vide order dated 30.11.2013. Aggrieved thereof, instant petition seeking quashment of the said order has been filed.

(3.) Learned counsel for the petitioner would submit that the order passed by the Executive Magistrate 1st Class is a conditional order subject to objections and modification, therefore, an interlocutory order against which remedy of revision is barred under Section 435(4-a) of Cr.P.C. This contention was raised but not accepted, therefore, order of revisional court is bad in the eye of law.