Bombay High Court
Sachin S/O. Devidas Punekar And Others vs Ashok S/O. Bhaiyyaji Chourikar And ... on 6 August, 2024
Author: G.A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:8787
1 16.wp.777.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION (WP) NO. 777 OF 2023
Sachin S/o. Devidas Punekar and others
.Vs.
Ashok S/o. Bhaiyyaji Chourikar and another
_______________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr Sumant Deopujari, Advocate for the petitioners
Mr N. R. Bhisikar, Advocate for respondent No.1
Mr J. B. Kasat, Advocate for respondent No.2
CORAM : G.A. SANAP J.
DATE : AUGUST 06, 2024
Heard finally, at the admission stage. Perused
the record and proceedings.
2. In this writ petition, the petitioners have
questioned the correctness of the judgment and order
dated 19.06.2023 passed by the learned Additional
Sessions Judge-8, Nagpur, whereby the learned Sessions
Judge allowed the appeal filed by respondent No.1 against
the judgment and order passed by the learned Judicial
Magistrate First Class, Corporation Court, Nagpur dated
26.04.2022 and set aside the said order.
3. The petitioners and respondent No.1 are
neighbors. There is a big mango tree on the premises of
respondent No.1, near the common compound wall
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between the houses of the petitioners and respondent
No.1. The tree is 65 years old and as such, it is a heritage
tree. The petitioners made a grievance that the tree is old
and branches of the tree are falling on their property and
causing damage. In short, it was contended by the
petitioners before the Magistrate that the dry leaves and
dry branches of the tree falling on their property has been
causing nuisance to them. It has posed serious danger to
the lives and property of the petitioners. The complaints
were made by the petitioners to the authority. When they
realized that the authorities are not paying heed to their
complaint, they have filed a complaint before the
Magistrate under Section 431 of the Maharashtra
Municipal Corporation Act, 1949 (for short 'the MMC
Act').
4. Respondent No.1 filed the reply and opposed
the contentions. It was the contention of respondent
No.1 that the mango tree is a heritage tree. It is in good
condition. The tree is not posing any danger to the lives
and property of the petitioners. The compound wall
between the two properties is at a distance of 5 feet from
the tree. The grievance was made by respondent No.1
that this unnecessary dispute was raised by the petitioners.
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5. Learned Magistrate, on consideration of the
evidence, on record, allowed the application and issued a
direction for cutting the mango tree above 25 feet from
ground level. The respondent, being aggrieved by this
order, filed the appeal under Section 432 of the MMC
Act. Learned Sessions Judge, on reconsideration of the
material, found that the order was without application of
mind to the facts, circumstances and evidence brought on
record and as such, set aside the order passed by the
Magistrate. The petitioners have challenged this order in
this writ petition.
6. I have heard the learned Advocates for the
parties. Perused the record and proceedings.
7. It needs to be stated at the outset that this
Court, on 30.11.2023, issued a direction to the officials of
the Nagpur Municipal Corporation to pay a visit to the
spot, examine the status of the tree in question and file a
report. This Court again, vide order dated 14.12.2023,
directed respondent No.2 to file on record a specific
report as regards the status of the tree in the context of the
grievance made by the petitioners and also the defence
put forth by respondent No.1. This Court again vide
order dated 15.02.2024, granted a liberty to respondent
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No.2 to take the assistance of the experts in this field for
this purpose.
8. In my view, the dispute between the parties can
be set at rest on perusal of the report submitted by the
Municipal Corporation with the assistance of the experts.
The report is dated nil. It has been placed on record on
14.03.2024 with pursis dated 14.02.2024. Copies of the
report are provided to the petitioner and respondent
No.1.
9. Perusal of the report would show that the
inspection was carried out on 21.02.2024. The necessary
details with regard to the height, age and the present
condition of the tree have been recorded in this report.
The Committee has recorded its observations in the
report. The Committee has suggested certain measures to
be adopted by respondent No.1 to properly maintain and
preserve the tree. The necessary directions to that effect
are at clause 4 of the report. The Committee has recorded
that the tree is healthy and a food bearing tree. It has also
been observed that this tree is a habitat for the birds in the
area. The report further states that considering the
present condition of the tree, there is no possibility of fall
of the tree and as such, damage to the adjoining
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occupants, which include respondent No.1. The report
further states that the grievance as to the nuisance, if any,
can be taken care of by cutting the dry branches of the
tree.
10. The existence of trees and forests is essential
to maintain the ecosystem. It is not out of place to
mention that the depleting strength of the trees is a matter
of grave concern. The apathy to plant the trees and the
cutting of the trees for development activities is one of the
causes for the depleting strength of the trees. The tree in
question is 65 years old. It is a fruit bearing tree. Learned
Advocate for respondent No.1 submits that the
petitioners are enjoying the fruits of the trees falling on
their property. Learned Advocate for respondent No.1
makes a statement across the bar that the petitioners
would be at liberty to enjoy the fruits falling on their
property. The report is part of the record. It is marked as
article 'A'. In view of this concrete report, I do not see any
substance in this petition.
11. It is our collective duty to plant more and
more trees to maintain the ecosystem. The concretization
in the urban areas has, to some extent, affected the natural
chain and growth of the trees. In this factual situation,
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while falling the existing trees, great care is required to be
taken. The mechanism provided, for cutting or falling the
tree in case of extreme urgency, is required to be adhered
to in letter and spirit. In this case, the mango tree, which
is a fruit bearing tree, is hale and hearty. It is in good
condition. The tree is not differentiating between the
petitioners and respondent No.1 in the matter of the
generation and distribution of oxygen. The mango tree is
a source of fresh oxygen for the petitioners and
respondents. In this context, the petitioners and the
respondents are required to take proper care of the tree.
As and when a danger is posed to the life and property of
the petitioners due to the dried branches of the tree, the
petitioners can bring it to the notice of the respondent
No.1 as well as to the Authority. If the branches are dried,
the petitioners can make a proper application before the
authority. The petitioners can also bring this fact to the
notice of respondent No.1. As and when such an
application is made, the officials of respondent No. 2 shall
ensure that the dried branches are cut without wasting any
time so as to avoid any damage to the person and property
of the petitioners as well as respondent No.1.
12. Respondent No. 1 is directed to comply with
the condition Nos. 2 and 3 of the report marked as article
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'A' within a week from today.
13. The compliance report be submitted by
respondent No.1 to this Court as well as to the officials of
the Municipal Corporation.
14. The officials of the Municipal Corporation, on
receipt of the compliance report, shall pay a visit to the
spot and see that the order of this Court is complied with.
15. In view of this, the writ petition stands disposed
of. Pending applications, if any, stand disposed of.
(G. A. SANAP, J)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 09/08/2024 20:00:29
