GAYASUNDARI DEVI Vs. JAGANNATH NAYAK

JUDGEMENT

(1.) OPPOSITE pNy No.1 applied to the Court of Executive Magistrate, Jaipur, on 4 -5 -1981 alleging that he and the petitioners are neighbours having houses with in the Jaipur town; there are old cocoanut trees standing within the premises of the petitioners and a few of them on account of being old have been leaning towards the house of the opposite party and he apprehends danger to his life and property including his residential house. An application had been made to the Executive Officer of the Municipality to have the trees out, but the proceedings became futile. He, therefore, wanted a direction for the cutting of the trees. The learned Magistrate made a preliminary order under Section 133 of the Code of Criminal Procedure and cal1ed upon the petitioners to show cause why that order may not be made absolute. The petitioners appeared, showed cause and maintained that there was no justification for the proceeding at all. The petitioners pointed out that the proceedings were not tenable as there was no public nuisance and at the most it could be said to be a case of nuisance to an individual, being the opposite party. There was a civil action between the parties and the trees were found to be on the land of the petitioners and not liable to be cut and removed and, therefore, the present proceeding was not maintainable. The learned Magistrate referred to certain precedents and came to the conclusion that the nuisance in this case was a public one and, therefore, the provision applied and the apprehension of the trees to fall on the roof of the opposite party's house was sufficient for maintaining the proceeding. The order is impugned in the present revision application.

(2.) SECTION 133 of the Code as far as relevant provides: "Whenever a Sub -divisional Magistrate on receiving the, report of a police officer or other information and on taking such evidence thinks fit, considers (a) xx xx xx (b) xx xx xx (c) xx xx xx (d) xx xx xx that any building tent or structure, or any tree is in such a condition that it is likely to fall and 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; or (f) xx xx xx such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or, merchandise or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order (i) xx xx xx (ii) xx xx xx (iii) xx xx xx (iv) to remove, repair or support such building, tent or structure, or to remove or support of such trees: xx xx xx"

(3.) THE proceeding is a summary one intended to help removal of a public mischief. Admittedly, the trees have been standing for many years on the premises of the petitioners. Initially, some years back, the opposite party obtained party obtained a decree from the Civil Court for cutting of the trees. Since that was an ex parte decree and the petitioners contended that it was obtained by fraudulent suppression of summons, a fresh suit was filed by the petitioners which after adjudication terminated in favour of the petitioners. An appeal carried by the opp. party ended in dismissal and the civil litigation seems to have become final. The allegation in the application made by the opposite party was that the trees were old and many of them were leaning towards his house. Further, on account of heavy wind, one of them had fallen and damaged his roof. In the Civil Court, after contest the decree was that none of the trees was necessary to be cut and removed for apprehended mischief. In view of the fact that was the decree in a litigation between the parties, the opposite party should have been bound by the decree. As pointed out on several occasions by courts, the proceeding is summary. In the present case, the trees have been standing for years in their present positions and there is no immediate cause of action except that as alleged in the application the top portion of one of the cocoanut trees had fallen on the roof of the opposite party's house. In this background, keeping in view the fact that the Civil Court had already adjudicated the dispute in favour of the petitioners and the mischief is not a public one and taking into consideration all aspects relevant to the matter, I am inclined to think that this application was made to the learned Magistrate with a view to continuing the old litigation. The opposite party went to the Civil Court and obtained a decree for cutting down of the trees. The petitioners thereupon came with their suit alleging fraudulent suppression of summons and asked for a declaration that the trees were not necessary to be cut. They obtained a decree which appears to have been affirmed in appeal and become final. The opposite party's petition now filed seems to be a fresh attempt to continue the dispute. In the rural areas of the eastern region of India and particularly of this State, existence of cocoanut trees is a common feature. Cocoanut trees grow within the courtyard, in the kitchen garden and even on the village roads covering the frontage of the houses. Cocoanut trees leave for about a century and remain fruit -bearing for 5 to 6 scores of years. Normally they do not get uprooted or fall down. Therefore, the mischief valued is not much. The opposite party filed to impress the Civil Court that the trees were liable to be cut down as they had become a source of mischief. In this background, there is hardly any justification fur initiation a proceeding under Section 133, Criminal Procedure Code. I would accordingly accept the revision petition and direct t hat the proceeding before the learned Magistrate be quashed. Revision allowed.