ANIL KRISHNA PAL Vs. STATE

JUDGEMENT

(1.) A Coconut Tree, some times, becomes source of living of a citizen, but, it sometimes, becomes a subject matter of protracted litigation. Instant writ application is a dispute on a coconut tree and petitioner has come to this Writ Court challenging inaction of South Dam Dam Municipality i.e.respondents 2 and 3 under Ss.449(2)(b), 452, 453, 454 and 455 of the Bengal Municipal Act, 1932, though apparently this petition is directed against the respondents 2 and 3 but for all practical purposes, petitioner is aggrieved against respondents 6 and 7, refusing to remove a coconut tree which was allowed to grow in the lands of respondents 6 and 7 but adjacent to petitioner's boundary walls, causing damage to the building of the petitioner, particularly walls of chilekotha, due to constant dashing by the said coconut tree, endangering life and properties of the neighbours and passers-by members of public.

(2.) Petitioner's contention is that the coconut tree is likely to fall at any moment causing damage to the property and loss of lives to the members of the public and also to the members of the petitioner's family. Petitioner requested respondents 6 and 7 to remove and/or to cut the said tree so that it could not hit petitioner's building causing damage thereon but no steps were taken at the instance of respondents 6 and 7. Petitioner was compelled to approach the local municipality i.e. respondents 2 and 3 and respondents 2 and 3 causing an inspection of the said premises and directed the respondents 6 and 7 to cut down the said tree withins days from the receipt of the said notice. Respondents 6 and 7 did not comply with the notice dtd. 7th Oct., 1982, issued by the said Municipality and again on, 7th Dec., 1982, respondents 2 and 3 served a notice directing respondents 6 and 7 to remove the said coconut tree. As the respondents 6 and 7 did not oblige Municipal Authorities, petitioner was directed to deposit a sum of Rs. 180/- as charge for removing the said tree and accordingly, the petitioner deposited the said amount on 7th April, 1983, with the Municipality. On 8th April, 1983, Municipality Authority went to the premises to cut down the said coconut tree from the top so that it cannot hit the building of the petitioner but due to resistance from respondents 6 and 7, Municipal Authority could not remove the said coconut tree. On 30th April, 1983 Municipality asked for Police help to the Officer in charge, Lake town Police Station for cutting down the said tree. On 4th May, 1983 at 10 a.m., the Municipal Authorities and the Police Officers were resisted by the respondents 6 and 7. On 4th May, 1983 respondent 7 filed art application under S.144 of the Cr. P. C. before the Executive Magistrate, Barrackpore, alleging the possibility of breach of peace in the area and the case was registered as MP Case No. 381 of 1983 and ultimately on 4th July, 1983. Police Authorities submitted a report before the learned Executive Magistrate, and considering the report the said case was filed by an order dt. 5th April, 1984. On 16th/17th April, 1984, Municipal Authorities again sent their Officers to cut down the said coconut tree (sic) by the respondents 6 and 7 and ultimately municipality became helpless and could not remove the coconut tree though Municipality was satisfied from the Inspectors' report that the coconut tree, standing within the premises of 6 and 7, should be removed in order to save life and property of the adjoining inhabitants and members of the public but the Municipal Authorities refused to take any further steps and requested the petitioner. to seek Court's help. Petitioner has thus come before this Court challenging order of the Chairman dt. February 7, 1986 in which petitioner was denied adequate relief by the Municipality.

(3.) Appearing on behalf of the respondents 6 and 7, Mr. Dirghangi has admitted that the statement and/or allegations as regards factum of the existence of a coconut tree cannot be disputed. It has been contended that the coconut tree, belonging to respondent 6 within his house, is not adjacent to petitioner's boundary wall but is at a distance of 2- ft. off from the base of the petitioner's boundary wall. Though the learned advocate Mr. Dirghangi has denied the allegation that the said coconut tree has been causing damage to the petitioner's building, particularly the chilekotha, due to constant dashing by the said coconut tree with the wind blowing but it has been admitted by the respondent 6, in para 9 categorically, inter alia, "I say that the said coconut tree is occasionally brought into contact when violent storm occurs", and obviously with the building of the petitioner. On behalf of the respondents 6 and 7 it has been indicated and contended that Writ Court is not the proper forum to adjudicate upon, the private right of the parties and Writ Court cannot enter in disputed question of facts. It has also been contended on behalf of the respondents 6 and 7 that Writ Court cannot grant relief where the Executive Magistrate has not proceeded to do so under S.133 of the Cr. P. C., 1973.