LAWS(BOM)-1973-6-20

SOMNATH V POI DHUNGAT Vs. STATE

Decided On June 22, 1973
Somnath V Poi Dhungat Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) In this Reference made by the Additional District and Sessions Judge, Panaji under Section 438 of the Criminal Procedure Code he recommends that the order of the Sub-Divisional Magistrate, Panaji issued under Section 133 of Cr. P.C. be set aside on the ground that the matter reported does not fall within the purview of "public nuisance.''

(2.) The Mapuca Police reported to the Sub-Divisional Magistrate that the house of the respondent No. 2 was situated in the property belonging to the petitioner and that by the side of the house there are four coconut trees out of which one is very old, that the 3 remaining coconut trees are standing at a distance of 3 metres from the house and that all the trees are dangerously leaning over the house and that therefore proceedings under Section 133, Cr. P.C. be instituted.

(3.) The learned Magistrate being satisfied from the report, instituted proceedings under Section 133, Cr. P.C. and issued a conditional order upon the petitioner ordering him to cut down the 4 coconut trees leaning towards the house of respondent Ho. 2 or to show cause within 7 days. The petitioner appeared before the Court pursuant to the notice and stated that the trees in question were not old, that they were strong at the roots and that therefore there was no danger of their falling. Evidence was recorded and even a local inspection was field by the Magistrate and thereafter the conditional order was made absolute in respect of all the trees.