The authority of the Sub-Divisional Magistrate to pass orders under Sec. 8 of the Travancore Cochin Public Safety Measures Act and the interpretation of relevant provisions of the Cr.P.C. were central to the judgment.

The third respondent is in possession of some paddy field in Sy. No. 232/11 of Tripperunthara village. He submitted an application before the Sub-Divisional Magistrate, Chengannur alleging that in the property situated on the eastern side of this property there are various trees and the branches of these trees cast shadow to the petitioner's property and the petitioner is unable to do paddy cultivation in his property. The third respondent filed an application under Sec. 8 of the Travancore Cochin Public Safety Measures Act. The Sub Divisional Magistrate caused an enquiry through the Village Officer and obtained the report, and he also personally inspected the property. He passed Ext. P4 order directing the petitioner herein to cut and remove the branches of the trees which are casting shadow on the property of the third respondent. Aggrieved by this order the petitioner filed an appeal before the Government of Kerala under Section 21 of the Act. The Government initially stayed Ext. P4 order but ultimately dismissed the appeal. The present O.P. is directed against that order.

2. I heard the petitioner's counsel and the counsel for the third respondent. The petitioner's counsel raised two contentions. The first contention was that the petitioner was not given an opportunity to submit his argument before the appellate forum and the dismissal of the appeal without hearing the petitioner violated the principle of natural justice. It is true that the petitioner filed statutory appeal as provided in the Act. It is not necessary that in all such appeals, the appellate forum should hear the petitioner. It is enough that the appellate authority considered all aspects and passed an order. If the petitioner is not prejudiced, it cannot be held that merely because the petitioner was not given an opportunity of being heard, there was violation of principles of natural justice. The original order was passed after hearing the petitioner and in this case I do not think that the petitioner is in any way prejudiced by the impugned order.

3. Another contention raised by the petitioner's counsel is that under the provisions of the Travancore Cochin Public Safety Measures Act, the powers conferred under Section 8 of the Act are to be discharged by a First Class Magistrate and going by the definition of First Class Magistrate as given in Section 3(3)(a) of Cr.P.C. a Magistrate of First Class shall be construed as a Judicial Magistrate of First Class. The relevant clause in Section 3(3)(a) of the Code of Criminal Procedure reads as follows :

"Construction of References : ------------------------------

Sec. 3(3) : Unless the context otherwise requires, any reference in any enactment passed before the commencement of this Code -

(a) to a Magistrate of the first class, shall be construed as a reference to a Judicial Magistrate of the first class;"

On the basis of the above contention, it is submitted by the petitioner that a Sub-Divisional Magistrate had no authority to pass the impugned order. This contention is not correct. Section 3(4) of Code of Criminal Procedure is also relevant. It is stated that,

"Where under any law, other than this Code, the functions exercisable by a Magistrate relate to matters -

(a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate."

4. Section 3(4)(b) says that in the case of functions exercisable by a magistrate which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.

5. So going by the provisions cont