1. Annexure-A5 preliminary order dated 22.05.2025 and Annexure-A10 final order dated 07.10.2025 passed by the Sub Divisional Magistrate, Tirur under sections 152(1)(d)(iv) and 157 of the Bharatiya Nagarik Suraksha Sanhita, 2023, are under challenge in this revision petition.

2. The issue relates to the existence of a mango tree and compound wall in the property of the petitioner herein, posing the threat of fall and injury to the persons residing in the neighbouring property belonging to the respondents 5 and 6.

3. The learned Sub Divisional Magistrate passed Annexure-A5 order dated 22.05.2025, directing the petitioner herein to cut and remove the above mango tree and to reconstruct the compound wall within a period of 15 days or to appear on 29.05.2025 to show cause why the aforesaid order shall not be made absolute. Thereafter, Annexure-A10 final order was passed by the learned Sub Divisional Magistrate on 07.10.2025 and made the preliminary order absolute, directing the petitioner to cut and remove the tree and to reconstruct the compound wall within seven days. The aforesaid orders are assailed in this revision petition.

4. Heard the learned counsel for the revision petitioner, the learned counsel for the respondents 5 and 6, and the learned Public Prosecutor representing the State of Kerala.

5. Sections 152 to 160 of the BNSS contain the scheme of procedures to be adopted by a District Magistrate, Sub Divisional Magistrate or any other specially empowered Executive Magistrate to abate public nuisance and danger caused as a result of the acts of persons causing obstruction to way, river, channel etc., conducting trade or occupation injurious to the health of the community at large, constructing building or disposing substance likely to cause conflagration or explosion, retaining building, tent or structure or any tree in such a condition of likelihood of its fall causing injury to persons living or carrying on business in the neighbourhood, constructing tank, well, or excavation adjacent to a public place causing danger to the public and also letting a dangerous animal causing the threat of injury to the public. As per Section 152 BNSS, the Magistrate has to pass a conditional order, directing the removal of the nuisance or abating the danger, and calling upon the person concerned to whom the order is directed, to show-cause why the order should not be made absolute. Section 153 of the BNSS provides for the manner of service of such an order. Section 154 of the BNSS deals with the obligation of the person against whom the order is made to comply with it or to appear before the Magistrate and to show-cause against the order. Section 155 of the BNSS says that a person who violates the order is liable to be proceeded against under Section 223 of Bharatiya Nyaya Sanhita, 2023. Section 156 of the BNSS provides the procedures to be followed when the person against whom the order is made appears before the Magistrate and denies the public right. Section 157(1) of the BNSS makes it mandatory for the Magistrate to take evidence in the matter as in a summons case when the person against whom the order is passed appears and shows cause against the order. Section 157(2) of the BNSS empowers the Magistrate to make the conditional order absolute with or without modification, if he finds after considering the evidence that such a course has to be adopted. Section 158 of the BNSS deals with the power of the Magistrate to conduct local investigation by such a person as he thinks fit and to examine those persons. Section 159 of the BNSS empowers the Magistrate to get written instructions from such persons conducting local investigation. Section 160 of the BNSS deals with the procedure to be adopted when the order is made absolute, and the consequences of disobedience.

6. It is clear from Section 152(d) of the BNSS that the Magistrate is well empowered to direct a person to cut and remove a tree situated in his property, if it is likely to fall and cause injury to persons living or carrying on business in the neighbourhood. So also, such a direction could be given if the compound wall of the neighbouring property is in a dilapidated condition posing the threat of fall and injury to the nearby residents. But, when the person against whom such a conditional order is issued, appears before the Magistrate and shows cause against the order, it is imperative under Section 157(1) BNSS for the Magistrate to take evidence in the matter as in a summons case.

7. As far as the present case is concerned, Annexure-A10 order is totally silent as to whether the petitioner herein had appeared before the learned Sub Divisional Magistrate and showed cause against Annexure-A5 order. On the other hand, the learned Magistrate appears to have proceeded with the matter by relying on the reports of the Tahsildar and Village Officer concerned, and arrived at the conclusion that the aforesaid tree is liable to be cut and removed and the compound wall reconstructed by the petitioner. Thus, the procedure as contemplated under section 157(1) of Bharatiya Nagarik Suraksha Sanhita, 2023 which makes it imperative for the Magistrate to take evidence in the matter as in the case of a summons case, has not apparently been followed. The failure of the learned Magistrate to state in Ext.P10 order as to whether the petitioner had appeared before him on the prescribed date and showed cause against the preliminary order, can only show that the aforesaid course of procedure had not been followed by the learned Magistrate. It is also writ large from Annexure-A10 order that the learned Magistrate did not follow the mandate of Section 157(1) BNSS to take evidence in the matter as in a summons case before arriving at a conclusion as to whether Annexure-A5 order is liable to be made absolute. Instead, the learned Magistrate seems to have been carried away by the indications in the reports of the Tahsildar and Village Officer concerned to arrive at the finding that the petitioner is liable to be directed by an absolute order to cut and remove the mango tree and to reconstruct the compound wall. It has to be stated here that the aforesaid reports of the Tahsildar and the Village Officer could be acted upon by the learned Magistrate provided those documents are brought on record by the examination of the above officers by the procedure contemplated under law which would necessarily afford an opportunity to the petitioner to challenge the findings thereunder by way of cross-examination. Having failed to adopt the mandatory requirement of law in the above regard, the aforesaid orders of the Sub Divisional Magistrate, are liable to be set aside.

In the result, the revision petition stands allowed as follows:

Annexure-A10 order passed by the Sub Divisional Magistrate, Tirur on 07.10.2025, directing the petitioner herein to cut and remove the mango tree situated in his property and to reconstruct the compound wall, is hereby set aside. It is made clear that this order would no way fetter the Sub Divisional Magistrate from adopting the course of procedure envisaged under Section 157(1) BNSS, and thereafter passing the orders afresh on the basis of the evidence let in by the parties.