Research › Browse › Judgment

Bombay High Court · body

1973 DIGILAW 66 (BOM)

SOMNATH v. POI DHUNGAT VS STATE

1973-06-22

TITO MENEZES

body1973
ORDER 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 said 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 tress 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 tress leaning towards the house of respondents No. 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 held by the Magistrate and thereafter the conditional order was made absolute in respect of all the tress. 4. The petitioner felt aggrieved by the order of the Sub-Divisional Magistrate and filed a Revision application to the Sessions Court. Two points were contended before the Additional District and Sessions Judge. One being that the evidence on record does not support the impugned order and the other that Section 133, Cr.P.C. is only applicable to public nuisance and that the nuisance complained of if, any, would amount only to a "private nuisance". Two points were contended before the Additional District and Sessions Judge. One being that the evidence on record does not support the impugned order and the other that Section 133, Cr.P.C. is only applicable to public nuisance and that the nuisance complained of if, any, would amount only to a "private nuisance". The learned Additional District and Sessions Judge considered the second contention namely whether Section 133, Cr.P.C. was applicable to the present case or not and thereupon came to the finding that as in the present case the fall of the trees is likely to cause injuries to a single family and not to the public in general, the Sub-Divisional Magistrate was not justified in having recourse to Section 133, as this is a case of private nuisance. It is on this ground that the learned Additional District and Sessions Judge recommended that the order be set aside. He has not considered the other contention of the petitioner. 5. In considering the question of public nuisance the learned Additional District and Sessions Judge considered that the chapter under which Section 133 falls, deals with "public nuisance" and that this expression has been defined under Section 268 of I.P.C. as an act or an illegal omission which cause any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. Thereupon he went on to consider whether the trees in question were likely to cause injuries to the persons living or carrying on business in the neighbourhood or passing by. Accordingly to him the fall of the trees should be likely to cause injury to the public or the people in general who dwell or occupy property in the vicinity or to the passers by and not to a single family living in the neighbourhood, however, considerable may be the number of members of such family. He therefore held that upon the finding arrived at by the Sub-Divisional Magistrate that only the family or respondent No. 1 was likely to be affected by the fall of the tress and that therefore such danger would not justify recourse to Section 133, as the case was one of private nuisance. 6. I am afraid I cannot accept this reasoning adopted by the learned Additional District and Sessions Judge. When deeply considered we will find that this reasoning is fallacious. 6. I am afraid I cannot accept this reasoning adopted by the learned Additional District and Sessions Judge. When deeply considered we will find that this reasoning is fallacious. The relevant portion of Section 133, Cr.P.C. reads as under :- "(1) 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, (2) 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 tress, is necessary, or (3) to remove or support such tree." In fact we will have to analyse the word "persons" appearing after the words "and thereby cause injury to." This section does not specify the minimum number of persons that should be living etc., so that if more than one person is living etc., that will amount to persons and the provisions of Section 133, Cr.P.C. will be attracted. I am therefore of the opinion that the learned Sub-Divisional Magistrate was justified in taking action under Section 133 even though the respondent's family was the only family which would be affected by the fall of the trees as the section does not speak of families but of persons. This view of mine is also supported by a decision reported in 1962 (2) Cri LJ 666 (Kerala). This case is on all fours with the present case. The point that was considered in that at case is also the same and it was held by the Kerala High Court that the tree in question need not be in such a position as to fall in any public place; it is quite enough that it is likely to all, wheresoever the fall might be, so long as the fall is capable of causing injury to persons living or carrying on business in the neighbourhood. The requirement is satisfied even if the danger is confined to the members of a single household, even to a sole occupant. 7. The requirement is satisfied even if the danger is confined to the members of a single household, even to a sole occupant. 7. As the learned Additional District and Sessions Judge did not consider the second point, namely, that the order is not supported by the evidence on record, I could remand the matter but it appears to me that it will take considerable time for finalising the matter and as the matter itself is of eminent nature. I will myself consider the second contention in this Court. 8. From the perusal of the evidence I find that there ar witnesses who have testified that the trees, which have been ordered to be cut, are dangerously leaning over the house of the respondent and that they are likely to fall if strong breeze blows. The learned Sub Divisional Magistrate has accepted this evidence. The petitioner has not been able to point out to me any reason why that evidence should not be accepted. It cannot be said that the order is not based on evidence. I, therefore, find that the second contention of the petitioner also cannot be upheld. In the result the reference made by the learned Additional District and Sessions Judge is not accepted. ORDER The Criminal Reference is rejected. The order of Sub Divisional Magistrate, Panaji is confirmed. Reference rejected.