KHETRABASI PATNAIK Vs. STATE

JUDGEMENT

(1.) THIS Reference made by the Sessions Judge, Puri, arises out of a proceeding under Section 133, Criminal Procedure Code.

(2.) ONE Naku Singh and the present Petitioner Khetrabasi Patnaik are neighbours, having their residential houses in the town or Puri. Some cocoanut trees belonging to the Petitioner were found leaning towards the house of Naku Singh. The dead leaves and dried fruits of these leaning trees were also filing into the courtyard of Naku Singh causing apprehension of some amount of danger to the life and property of the public including the Petitioner. The Petitioner made an application in the Court of the Sub -Divisional Officer, Puri, for action under Section 133, Criminal Procedure Code. Notice was duly issued calling upon the Petitioner as to why he should not remove the said trees.

(3.) IT cannot be disputed that in fact some old cocoanut trees of the opposite party were found leaning towards the courtyard of the Petitioner and the dead leaves and dry fruits were falling from the same causing certain amount of apprehension of danger to the human life. Section 133 which deals with 'public nuisance' clearly covers cases of this nature. Sub -section (1) of the said section clearly lays down that whenever a District Magistrate, a Sub. Divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit ... 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 such Magistrate may make a conditional order requiring the person owning, possessing or controlling such building, tent, structure, or tree to remove or support such tree within a time to be fixed by the order. Thus the plain words of Section 133 make it clear that the trees in question may be a public nuisance within the meaning of Section 133, Code of Criminal Procedure and as such the Sub -Divisional Officer had full jurisdiction to take action under the said section. The decision relied upon by the learned Sessions Judge in Prafulla Kumar Sahu and Anr. v. Suma Sundari Dei, 28 C.L.T. 214, has no application to this case. That was a case where in respect of an old dilapidated building, the Cuttack Municipality had already taken some action for demolishing a portion of the structure which was found to be in a dangerous condition, in exercise of the powers vested in the Municipality under Chapter XVIII, of the Orissa Municipal Act, and in - view of the fact that the Municipality had already taken action in the matter in accordance with law, further action by the Magistrate under Section 133, Code of Criminal Procedure was held to be inappropriate. Here, however, there is nothing to show that any such action has been taken by one -Municipality. In view of this position, I do not think, the order of the Sub -Divisional Officer under Section 133, Code of Criminal Procedure was in any way legal so as to call for interference.