Excelsior Correspondent
Srinagar, May 18: High Court today held that while dealing with a case of public nuisance, the Magistrate before passing any order is duty bound to seek evidence and set aside the order of the Magistrate with the direction to him to record evidence of parties before passing any order.
Justice Sanjay Dhar set aside the order of Magistrate whereby the status report pertaining to the complaint with regard to planting of poplar trees was sought from the concerned Tehsildar without adducing evidence into the matter.
In terms of the directions of Magistrate the Tehsildar concerned submitted that upon visit to the spot, it was found that the petitioner against whom complaint was filed, has planted poplar trees and in case of any untoward incident, there is danger that the said poplar trees may fall on the house of the respondent-complainant thereby causing damage to it. A recommendation has been made in the report that these trees are required to be removed.
On these recommendations a direction was passed by the Sub Divisional Magistrate Pattan that these poplar trees be removed as they pose threat to the life and property of the respondent-complainant. The order of SDM was challenged by way of a revision petition by the petitioner before the Court of Additional Sessions Judge, Baramulla, who upheld the legality and validity of the impugned order passed by the learned Sub Divisional Magistrate, Pattan, and dismissed the revision petition.
“The Magistrate, while dealing with a case pertaining to public nuisance, is duty bound to take evidence in the matter as in a summons case which, in the instant case, has not been done by the learned Magistrate. Thus, the procedure has not been adhered to by the Magistrate before passing the impugned order. The Revisional Court, while passing the impugned order, has not dealt with this aspect of the matter at all”, Justice Dhar recorded
The court for all these reasons held that the impugned order passed by the SDM as also the order passed by the Revisional Court (Additional Sessions Judge) are not sustainable in law and the same deserve to be set aside. Accordingly court allowed the petition and set aside the impugned orders passed by the Sub Divisional Magistrate, Pattan, and Additional Sessions Judge, Baramulla and remanded the case back to the Sub Divisional Magistrate, Pattan, with the direction to record evidence of the parties in the case in the and thereafter pass an order in accordance with law.
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