Order passed cannot be set aside for not furnishing enquiry report.

In this revision Petition the revision petitioner is challenging the order dated 212. 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 29. 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 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 On the basis of the petitioner, he wanted the order to be rescinded.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 29. 1986 intimated both the revision petitioner and the respondent about his proposed inspection of the site on 29. 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 212. 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. Mr.D.Saravanan, learned counsel for the revision petitioner put forward the following points to set aside the order impugned in this revision petition. According to him, the Executive Magistrate is bound to take evidence as provided for in Sec.138 of Crl.P.C, which he had failed to do. Secondly, he would may that the Executive Magistrate had not furnished him the copy of his inspection report and therefore, he was deprived of a reasonable opportunity to know what it contained and effectively put forward his defence.

.4. As far as second point raised is concerned, I do not see any record showing that the revision petitioner had asked for a copy of the inspection report. Though a ground is raised in the criminal revision cases here, yet in the absence of a written demand and refusal, it is not possible to allow such a ground at the stage because one may not be sure whether really a demand was made or not. As far as the first point is concerned, I am of the following opinion: Under Sec.133 of the Code of Criminal Procedure, a preliminary order is passed for removal of the nuisance. The person against whom an order is made and on being served with such an order, has a right to either obey the order or show cause as to why he shall not obey as provided for in Sec. 135 of the Code of Criminal Procedure. If a person against whom an order is passed does not obey the order or show cause as to why he shall not obey, he shall be liable with the penalty prescribed in that behalf in Sec.188 of the Indian Penal Code as provided for is Sec. 136 of the Code.

.5. In this case, the complaint was made by the respo