Bombay High Court
Sanjiv Kemlo Simepurushkar vs State Of Goa Thr. Its Chief Secretary And ... on 20 August, 2024
2024:BHC-GOA:1368 (21) WP 469.2024
Sonam
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 469 OF 2024
Sanjiv Kemlo Simepurushkar,
Age 52 years,
R/o Umtawado, Calangute,
Bardez, Goa. ... PETITIONER
Versus
1. State of Goa,
Thr. its Chief Secretary,
Porvorim, Goa.
2. Conservator of Forests,
Goa Van Bhavan, Forest Department,
Altinho, Panaji, Goa.
3. Deputy Collector and SDO-I,
Mapusa, Bardez, Goa.
4. Shekhar Manohar Simepurushkar,
R/o H. No. 5/186, Umtavado,
Calangute, Bardez, Goa. ... RESPONDENTS
Ms. Sailee Kenny, Advocate for the Petitioner.
Mr. Amogh Arlekar, Additional Government Advocate for
Respondent Nos. 1 to 3.
Ms. Gautami Kamat (through V.C.) with Mr. Harsh Kamat,
Advocates for the Respondent No. 4.
Page 1 of 8
20th August, 2024
(21) WP 469.2024
CORAM:- BHARAT P. DESHPANDE, J.
DATED :- 20th AUGUST, 2024.
ORAL JUDGMENT:
1. Rule. Rule is made returnable forthwith. Matter is
taken up for final disposal at the admission stage itself with
the consent of the parties.
2. Heard Ms. Kenny, learned Counsel appearing for the
Petitioner, Ms. Kamat appearing for Respondent No. 4 and
Mr. Arlekar, learned Additional Government Advocate
appearing for Respondent Nos. 1, 2 and 3.
3. Challenge in the present petition is to the Judgment
and Order passed by the Appellate Authority dated
17.05.2024 wherein the Appeal filed by the Petitioner was
partly allowed. However, while disposing of such Appeal
certain directions were issued including fixing of a strong
nylon net around the said tree inorder to arrest the fall of
fruits, dead leaves etc. The other direction is to regularly
clean the surroundings of the said tree by removing dead
leaves and coconuts and submit the report on six-monthly
basis to the officer.
4. Ms. Kenny submits that a complaint was filed by the
Respondent No. 4 who is the neighbour on 17.07.2023, upon
which an inspection was carried out. The report of the
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inspection dated 07.08.2023 by the Zonal Agricultural
Officer would show that the coconut tree is around 7.8 mts
away from the compound wall of the complainant's house.
She would submit that there is absolutely no danger to the
life and property of the Respondent No. 4 and the Petitioner
has already given an undertaking to the concerned authority
for maintaining the said tree in a proper manner and by
plucking the coconuts every five months. She submits that
the direction issued by the Appellate Authority is clearly
beyond the scope and inquiry as well as the complaint and
therefore such directions should be quashed and set aside.
5. Ms. Kamat appearing for Respondent No. 4 would
submit that the tree existing in the property of the Petitioner
is clearly leaning towards the house of the Respondent No. 4
which is also reported in a joint inspection report. She
submits that there is a possibility of danger of falling of the
said tree, coconuts and dead leaves causing injury to the life
and damage to the property.
6. The complaint filed by the Respondent No. 4 is dated
17.07.2023 wherein it was alleged that one coconut tree
infront of the house of the complainant/Respondent No. 4 is
dangerously swinging even at the normal breeze causing
threat to life and damage to his property. It is claimed that
tree exists in the property belonging to the Petitioner and
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(21) WP 469.2024
due to the impact of swinging on the part of the said tree,
compound wall of the property of the complainant
collapsed.
7. On receipt of such complaint, joint inspection was
carried out on 07.08.2023 and the observations of the Zonal
Agricultural Officer read thus:
" The observations are as follows
• One coconut tree is located in left side of the
complainant's house.
• The coconut tree is 8.7 mts away from
compound wall of complainant's house.
• The coconut tree is about 40 years of age.
• The height of coconut tree is about 20-22
mts.
• The falling fronds and nuts can cause loss to
life and property.
• During heavy rain and high wind velocity the
tree may fall in any direction towards the
house causing loss to life and property."
8. A show-cause notice was issued to the Petitioner upon
which reply was filed along with an undertaking, which read
thus:
UNDERTAKING
" I, S. Simepurushkar, the Appellant, hereby
undertake to take care of the tree and shall do the
necessary tending periodically, including removal
of the dead & dying fronds and plucking of nuts every
5 months."
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(21) WP 469.2024
9. The Deputy Collector/SDO-I, Mapusa, Goa passed an
order on 07.11.2023 thereby directing the Petitioner to cut
the said coconut tree within a period of seven days. Being
aggrieved by such order, the Petitioner, preferred an Appeal
before the Conservator of Forests. By the impugned
Judgment and Order dated 17.05.2024, the Appellate
Authority quashed and set aside the order passed by SDO-I,
Mapusa, Goa, however, issued certain directions in the
operative part of the order which read thus:
" ORDER
The order dated 07.11.2023 passed by the Dy.
Collector & SDO-I, Mapusa - Goa in case No.
DC/SDO/MAP/Cutt-trees/26/2023/7078 is hereby
set aside.
The coconut tree shall not be cut.
Appellant shall ensure putting up of a strong
nylon net having fine mesh to arrest the
fall of flowers and fruits onto the property/house
of the Respondent and under consultation of
the Zonal Agriculture Officer. This should be done
within a week of issue of this order.
Regular replacement of the nylon net shall be
ensured by the Appellant. The Appellant is
further directed to regularly clean the mature,
dead and dying fronds and harvest the coconuts
every 3 months. Appellant shall submit six-
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monthly compliance reports to the office of
Deputy Collector & SDO-I, Mapusa.
Failure to comply with the directions shall be
dealt by the Tree Officer/Deputy Collector & SDO-I,
Mapusa as per the provisions of section 12 of the Goa
Preservation of Trees Act, 1984.
The appeal stands disposed accordingly.
Sd/-
Nabanita Ganguly, IFS
Appellate Authority (under GPTA, 1984) &
Conservator of Forests (Conservation)"
10. The order of the Conservator of Forests/Appellate
Authority would clearly go to show that there is no
imminent danger in connection to life and property of the
complainant for the purpose of directing the Petitioner to cut
the said tree. These observations are found in the impugned
order and that too on the basis of a joint inspection report.
Admittedly, the tree is at a distance of 8.70 mts. away from
the residential house of the complainant. Though, it is
observed that the crown of the tree is leaning towards the
residential house of the complainant, the Petitioner has
given an undertaking which is quoted above that he will
carry out the maintenance work and remove all coconuts and
dead leaves on the periodical basis.
11. Ms. Kenny has pointed out that even the cemented
portion around the base of the tree covering the roots is
removed, thereby opening the said roots. The photograph
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accordingly, shows that tree exists close to the compound
wall, however, the base portion of tree is now cleared by
removing the cemented portion.
12. Complaint which was filed by the Respondent No. 4
was only with regard to danger which he has expressed
above causing damage to his property or any injury to him
or his family member due to fall of coconuts or the dead
leaves. Once the undertaking is given by the Petitioner,
which is accepted by the authority, same should have been
considered for the purpose of disposing of the Appeal.
13. Directions of the concerned authority thereby directing
the Petitioner to put up strong nylon net having fine mesh to
arrest the fall of fruits and leaves on to the property of the
Respondent No. 4 is clearly unwarranted and unnecessary.
Similarly, the direction that the Petitioner shall submit six
monthly compliance report to the officer/SDO-I, Mapusa is
also considered to be harsh and unnecessary.
14. The Petition is filed only showing grievance to such
directions, however, when the undertaking is given by the
Petitioner to carry out such work and that too regularly,
there was no need for issuing these directions.
15. For the above reasons, the impugned order needs
modification. By maintaining the order of allowing the
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Appeal, the directions issued by the consent authority to the
Petitioner needs to be quashed and set aside, specifically,
when undertaking is given by the Petitioner before the
concerned authority.
16. For all the above reasons rule is made absolute in the
above terms.
17. Proceeding stand disposed of.
BHARAT P. DESHPANDE, J.
20th August, 2024
