Kerala High Court
Magistrate Court vs Abdul Samad on 9 November, 2016
Author: K. Abraham Mathew
Bench: K.Abraham Mathew
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
FRIDAY, THE 11TH DAY OF AUGUST 2017/20TH SRAVANA, 1939
Crl.Rev.Pet.No. 496 of 2017 ()
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AGAINST THE ORDER IN MC 359/2016 of SUB DIVISIONAL-
MAGISTRATE COURT,TRIVANDRUM.
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PETITIONER(S)/REVISION PETITIONERS.
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1. ABDUL SAMAD,
S/O.ABOOBACKER, AGED 57 YEARS ABDUL AHADMANZIL,
OOTTUKUZHI, KUDAPPANAMOODU,
THIRUVANANTHPAURAM-695 510.
2. P.SHABEENA BEEVI,
W/O.ABDUL SAMAD
AGED 46 YEARS ,ABDUL AHADMANZIL,OOTTUKUZHI,
KUDAPPANAMOODU, THIRUVANANTHPAURAM-695 510.
BY ADV. SRI.S.MOHAMMED AL RAFI
RESPONDENT(S)/STATE & PETITIONER.:
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1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. FATHIMA BEEVI,
MELE OOTTUKUZHI PUTHEN VEEDU, KUDAPPANAMOODU,
AMBOORI, THIRUVANANTHAPURAM-695 510.
R1 BY PUBLIC PROSECUTOR SRI. K.B. UDAYA KUMAR
R2 BY ADV. SRI.R.T.PRADEEP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 11-08-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
TS
Crl.Rev.Pet.No. 496 of 2017 ()
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APPENDIX
PETITIONER(S)' ANNEXURES
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ANNEXURE- A:-TRUE COPY OF THE CONDITIONAL ORDER DATED 09.11.2016
IN M.C.3/359/16 ISSUED BY THE SUB DIVISIONAL MAGISTRATE,
THIRUVANANTHAPURAM.
ANNEXURE - B:- TRUE COPY OF THE OBJECTION FILED BY THE REVISION
PETITIONERS AGAINST ANNEXURE - A.
ANNEXURE - C:- TRUE COPY OF THE ORDER DATED 08.12.2016 IN M .C.3/359/16
OF THE SUB DIVISIONAL MAGISTRATE,
THIRUVANANTHAPURAM.
ANNEXURE-D:- TRUE COPY OF THE ORDER DATED 18.1.2017 IN
CRL.R.P.NO.1751 /2015 OF THIS HON'BL COURT.
ANNEXURE R2(A):_ PHOTOGRAPH OF THE COLLAPSE OF RETAINING WALL.
ANNEXURE R2(B):_ PHOTOGRAPH OF SUBSIDED SIT OUT.
RESPONDENT(S)' ANNEXURES - NIL
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/TRUE COPY/
PS TO JUDGE
TS
K. ABRAHAM MATHEW, J.
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Crl.R.P. No. 496 of 2017
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Dated this the 11th day of August, 2017
O R D E R
Petitioners have in their ownership 90 cents of land. The second respondent is the owner of 3 cents adjoining the 90 cents. She is residing in the building situated on the 3 cents. On the allegation that the petitioners removed earth from their property using a JCB and it would cause collapse of her land along with the building, she filed a complaint before the Sub Divisional Magistrate, Thiruvananthapuram. The learned magistrate after obtaining a report from the Village Officer concerned passed a conditional order under Section 133 Cr.P.C. The petitioners entered appearance and filed objection. Later, the learned magistrate made the conditional order absolute. This was challenged in Crl.R.P. No.1751 of 2015. By Annexure-D order this Court set aside the order of the learned magistrate and Crl.R.P. No. 496 of 2017 ..2..
remitted the matter for fresh disposal. The ground was that the procedure for taking evidence in a summons case was not followed by the learned magistrate. Thereafter, the learned magistrate has now again passed an order making the conditional order absolute. Its correctness is questioned.
2.Heard the learned counsel for the petitioners and the second respondent, and the learned Public Prosecutor.
3.It appears that before passing the order, which was set aside by this Court by Annexure-D order, the parties had adduced oral evidence. That was not brought to the notice of this Court. After the disposal of the revision petition by this Court, the parties did not adduce any fresh evidence.
4.The first petitioner admitted before the learned magistrate that earth was removed from his property. There is considerable difference of level between the properties of the petitioner and the second respondent. He also admitted that the wall of the second Crl.R.P. No. 496 of 2017 ..3..
respondent's house collapsed. So, there is no dispute that the property of the second respondent may collapse any time because of the removal of the earth from the petitioners' property.
5.The question that arises for consideration is whether Section 133 Cr.P.C. is attracted. The learned counsel for the second respondent submits that the facts of the case attract Section 133(1)(d) Cr.P.C. It reads as follows;
Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving a report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers -
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair and support or such building, tent or structure, or the removal or support of such tree, is necessary, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, to remove repair or support of such building, tent or structure, or to remove the support of such trees.
6.It is submitted by the learned counsel for the second Crl.R.P. No. 496 of 2017 ..4..
respondent that there is a wall on the boundary of the petitioner's land and if it collapses, it will result in the collapse of the land of the second respondent and consequently, the building. The wall is a structure coming within the purview of Section 133(1)(d) Cr.P.C., the learned counsel would submit. Even though this argument is accepted, it cannot attract Section 133 because it is not the collapse of the petitioner's wall that would cause obstruction to the second respondent's property, but the removal of the lateral support of her property. Because of the removal of the lateral support, the second respondent's land may collapse and this may lead to the destruction of her house. Such a situation is not covered by Section 133(1)
(d) of the Code. If the petitioners demolish or remove the boundary wall, the second respondent cannot be heard to say that they should not do so. The removal of the wall will not help the second respondent to protect her property. So, in fact, what the second respondent Crl.R.P. No. 496 of 2017 ..5..
prays for is construction of a retaining wall so that her land may not collapse because of the loss of the lateral support. Her remedy lies not in a criminal court but in a civil court. Though I am satisfied that the petitioners were not justified in removing the lateral support of the second respondent's property, no relief can be granted to the second respondent in a proceedings under Section 133 Cr.P.C. The order passed by the learned Sub Divisional Magistrate is without jurisdiction. The order is liable to be set aside.
In the result, this Crl.R.P. is allowed. The impugned order is set aside.
Sd/-
K. ABRAHAM MATHEW JUDGE bka/-