HIRALAL Vs. JOGESHWAR RAM

JUDGEMENT

(1.) THIS is a reference made to High Court under Section 438 of the Criminal Procedure Code and arises out of the order made in revision by the learned Additional Sessions Judge, Dharamsala, in a case under Section 133, Criminal Procedure Code instituted before the S. D. M. Palampur as a result to a complaint submitted by Jogeshwar Ram for a mango tree which is standing near his house and of which the branches extend upto his roof and is likely to endanger the security of his house in case it falls, clue to the action of wind or rough weather. The complaint of Jogeshwar Ram was that the tree belonged to Hira Lai and is at a distance of about 10 to 12 yards away from his house. Some two years ago a branch of this tree fell and damaged the roof of the complainant. According to him, the roots of the tree have got exposed and it is likely to fall any time on his house and thereby cause damage to his life and property. The S. D. M. Palampur, after receiving the complaint, got the enquiry made through the Thesildar Palampur and his report indicated that the tree was situate at a close proximity of the house of the complainant and there was apprehension of danger from the tree to the complainant in case it falls over his house. Accordingly the learned Magistrate issued a conditional order under Section 133, Criminal Procedure Code, against Hira Lai so that, either he removes the tree or shows a cause why the same should not be removed.

(2.) HIRA Lal appeared before the learned Magistrate and showed cause against removal of the tree. Both the parties examined several witnesses, Jogeshwar Ram produced four witnesses: Capt. Rikhi Ram (A. W. 1), Dhani Ram (A. W. 2), Nika Ram (A. W. 3) and Gian Chand (A. W. 4 ). Besides them, he gave his own statement. The opposite party Hira Lai gave his own statement and produced one witness Piyar Chand (R. W. 1 ). The learned Magistrate believed the evidence produced by Jogeshwar Ram and held that the tree was an unlawful nuisance and should be removed from the spot. Accordingly he made his conditional order absolute for the removal of such tree.

(3.) HIRA Lal came in revision before the learned Additional Sessions Judge, Dha-ramshala, and succeeded in that Court. The learned Sessions Judge held, that the conclusion is irresistible after a perusal of evidence that the tree, if at all, constitutes a private nuisance and not a public nuisance. According to the learned Sessions Judge, proceeding under Section 133, Criminal Procedure Code cannot be instituted in relation to a private nuisance and hence, according to him, the complaint was misconceived and the learned Magistrate could neither make the preliminary order nor could make it absolute under that section. Hence the learned Sessions Judge has recommended for the quashing of the order of the learned Magistrate who had made his conditional order absolute.