Shri Peter Fernandes vs State Of Goa Through Mapusa Police ...
2007 Latest Caselaw 683 Bom

JUDGMENT

N.A. Britto, J.

1. Heard the Learned Counsels on behalf of both the parties.

2. By this petition filed under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has taken exception to the order dated 30.12.2006 of the Learned Additional Sessions Judge, Panaji, upholding the conditional order dated 22.6.2006 of the Learned Executive Magistrate, Mapusa.

3. During the course of hearing of this petition, the petitioner and the respondent No. 2 have produced two photographs for the perusal of the Court. The photograph produced by the petitioner shall be marked 'X' and the one produced by the respondent shall be marked 'Y' and both shall form part of the record.

4. There is no dispute that the petitioner is the owner of a property surveyed under No. 126/14 in which the petitioner has several trees. The respondent No. 2/informant has a house in the adjoining property which belongs to her bhatkar and both these properties are separated by a water drain.

5. On or about 16.5.2005 the said informant filed an application to the Executive Magistrate, inter alia, stating that there were two mango trees and two jackfruit trees leaning on the roof of her residential house in a dangerous situation and that the petitioner inspite of requests to cut down/trim down the branches of said trees, several times, had not cut the said branches and as the monsoon was arriving, action was to be initiated to cut down the branches of the trees. It is also stated that in the monsoon of the year 2005 one branch had collapsed and damaged the roof tiles and other household articles.

6. Presumably the said information of the said informant was referred to the police for inquiry and report and it appears that a panchanama was drawn on 3.6.2006. In the said panchanama it was stated that there were four trees at the site of said informant at a distance of about 3 mts. and it was stated that the said four trees had become old. It was also opined that during heavy rains the said trees may get uprooted or their branches may break and fall.

7. Although the initial information filed by the said informant was essentially for the cutting down or trimming of the branches of the said trees, the Learned Executive Magistrate by his conditional order directed the petitioner to cut down two mango trees and two jackfruit trees belonging to the petitioner or show cause as to why the same should not be ordered to be cut. Against this order the petitioner filed a revision petition which came to be dismissed by the learned Additional Sessions Judge, by order dated 30.12.2006.

8. Shri Vales, the learned Counsel on behalf of the petitioner, has submitted that this is a case of private nuisance being caused and not a case of public nuisance and therefore the Learned Executive Magistrate could not have initiated any action against the petitioner in terms of Section 133 of the Code. The Learned Counsel further submits that although the said informant had raised grievance that only branches were required to be cut, the Learned Executive Magistrate proceeded to pass a conditional order in relation to four trees and to that extent the conditional order was without jurisdiction and the learned Addl. Sessions Judge after having taken note of this situation did not choose even to modify the said conditional order. The Learned Counsel further submits, relying on the said photograph, that there are more trees, more precariously leaning on the house of the first informant and presumably belonging to her bhatkar regarding which she has chosen not to initiate any action. Learned Counsel has placed reliance on the decisions in the cases of Sudhakar Vithalrao Welankiwar v. Liberty Services and Ors. 1983 Mh. L.J. 676, Kachrulal Bhagirath Agrawal and Ors. v. State of Maharashtra and Ors. and Santosh Vana Patil v. State of Maharashtra 2006 ALL MR (Cri) 2610.

9. The basic provision of law involved in the present petition is Section 133(1)(d) of the Code which reads as under:

that any building, tent or structure, or any tree is in such a condition that it is likely to fall or thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary.

10. The case of Sudhakar Welankiwar (supra) was also a case in relation to Section 133(1)(d) of the Code but related to a building and in that context this Court noted that in the whole application there was no allegation that there was danger or injury likely to be caused by falling of the roof, to the persons living or carrying on business in the neighbourhood or passing by the road, and therefore that was not a case of allegation of a public nuisance at all.

11. In the case of Santosh Patil (supra) this Court referred to the case of Kachrulal Agrawal supra, also reported in 2004 Criminal Law Journal 4634 (SC) wherein Supreme Court observed thus:

The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable danger would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential nuisances and on the other hand applies when the nuisance is in existence.

Section 133 of the Code as noted above appears in Chapter X of the Code which deals with maintenance of public order and tranquility. It is part of the heading public nuisance. The term nuisance as used in law is not a term capable of exact definition and it has been pointed out in Halsbury's Law of England.

Even in the present day there is no entire agreement as to whether certain acts or omissions shall be classed as nuisance or whether they do not rather fall under other divisions of the law of tort.

12. The Apex Court also noted that the trade must be injurious in praesenti to the health or physical comfort of the community.

13. As can be seen from the information filed by the said informant (respondent No. 2 herein) the apprehension was that the branches might fall during the ensuing monsoon season in case they were not cut or cleared. The opinion given in the panchanama was that all the four trees had become old. The latter expression is subjective and it is not necessary only because a tree has grown old that it was likely to fall.

14. This Court in unreported judgment dated 23.11.2006 in Criminal Writ Petition No. 25 of 2006 in the case of Mr. Vyanjkatesh Y. Gaonkar v. State had noted that proceedings under Section 133 of the Code are not meant to settle private disputes between two parties. Section 133 of the Code provides for a summary and quick remedy, inter alia, for cutting down of a tree which was likely to fall. The word 'likely' is otherwise not defined in the Code but its ordinary dictionary meaning as per Concise English Dictionary, is such as well might happen or be true, promising, probably. There is no doubt whether a particular tree or its branch are likely to fall cannot be foretold with any degree of accuracy but certainly some evidence must be produced to show that a particular tree is likely to fall either because it has developed a crack or is infested with insects or suffers a disease or weakness or other infirmity, etc. which would make it fall. The danger of falling must be in praesenti, as observed by the Apex Court in Kachrulal (supra) and in normal weather conditions and not in distant future since one cannot foretell as to what could happen in abnormal weather conditions. Only because the informant feared that the branches of the said trees might fall in the ensuing monsoon season was insufficient to have given any jurisdiction to the Learned Executive Magistrate who has initiated the proceedings under Section 133(1)(d) of the Code. Likewise a mere allegation that the trees had become old was insufficient for the Learned Executive Magistrate to conclude that they were likely to fall and invoked his jurisdiction under the said Section.

15. In case the said branches of the trees belonging to the petitioner caused any nuisance to the informant, her remedy was clearly by way of a civil suit. It was necessary for the informant who approached the Executive Magistrate for initiation of proceedings under Section 133(1)(d) to have shown that the danger was imminent i.e. in praesenti that the tree was likely to fall.

16. It is also to be noted that proceedings under Section 133 of the Code are not meant to settle private disputes between two members of the public or members of two households and for public authorities to waste their time in trying to settle such disputes. A Magistrate under Section 133 of the Code exercises a public duty and he can exercise it only when jurisdictional facts are present. There were none present in this case.

17. Consequently, the petition deserves to be succeed. The orders of both the Courts are hereby set aside. Consequently, proceeding initiated with the conditional Order dated 22.6.2006 shall stand dropped, with no order as to costs.