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2019 DIGILAW 855 (HP)

Durgi Devi v. State Of H. P.

2019-07-04

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Section 482 of the Code of Criminal Procedure, read with Article 227 of the Constitution of India, has been maintained by the petitioner against the order dated 05.09.2017, passed by learned Sessions Judge, Hamirpur, H.P., in Cr. Revision No. 16 of 2014, whereby order dated 26.06.2014, passed by learned Sub-Divisional Magistrate, Bhoranj, District Hamirpur, H.P., in case No. 14/11, has been set aside and complaint under Section 133(1)(d) of the Code of Criminal Procedure (hereinafter to be called as "the Code") filed by respondent No. 2/complainant (hereinafter to be called as "the complainant") has been allowed. 2. Briefly stating the facts, giving rise to the present petition are that on 16.03.2010, complainant filed a complaint against the present petitioner under Section 133(1) (d) of the Code, wherein it has been alleged that there is one mango tree of the petitioner and house of the complainant is located under the branches of the said tree and the tree may be fall at any time and may cause damage to the house of the complainant. So, the complainant prayed for removal of the nuisance. Consequently, the matter was sent to S.H.O., Police Station Bhoranj and report was called. On the report, learned trial Magistrate has taken cognizance and issued notice under Section 133 of the Code to the petitioner. In reply to the said notice, the petitioner totally denied the fact of apprehension of public nuisance and it has been averred that the tree will not cause any damage to the house of the complainant, as the house is 20 feet away from the house of the complainant. It has been further averred that the complainant constructed the house below the branches of the tree and now he wants to construct second storey. Lastly, dismissal of the notice was prayed. 3. The learned trial Magistrate after recording the statements of the witnesses, dropped the proceedings against the petitioner on the ground that it is a private dispute between the parties and provisions of Section 133 of the Code are not attracted at all. Feeling aggrieved, the complainant filed a revision petition against the said order and learned Sessions Judge, Hamirpur, set aside the order passed by learned trial Magistrate and directed the petitioner to cut the branches of mango tree, which are extending towards the house of the complainant within 30 days. Feeling aggrieved, the complainant filed a revision petition against the said order and learned Sessions Judge, Hamirpur, set aside the order passed by learned trial Magistrate and directed the petitioner to cut the branches of mango tree, which are extending towards the house of the complainant within 30 days. Hence the present petition. 4. In order to prove his case, the complainant has examined Sh. Harman Singh, CW-1, Sh. Surjeet Singh, CW-II, Sh. Niranjan Ram, CW-III and Sh. Bidhi Chand, CW-IV. All these witnesses admitted that there is a mango tree on the spot and its one branch is over the house of the complainant and stated that due to branch of mango tree, the complainant is unable to construct the second storey of his house. 5. On the other hand, respondent (petitioner herein), while appearing in the witness box as RW-1, has deposed that the complainant has constructed his house four years ago, whereas mango tree is 50 years old. He further deposed that there is no danger from this mango tree and if it happens in future, she would be responsible and ready for compensation. 6. Section 133 (1) (a) and (d) of the Code provides as under: "133. Conditional order for removal of nuisance.- (1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers- (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or ...... . .. (d) 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 . ...... . ." 7. ...... . ." 7. From the evidence which has come on record, coupled with the provisions of law as contained under Section 133 of the Code, if the tree becomes dangerous, it can be asked to be removed by exercising the power under Section 133 of the Code. In the instant case, there is no evidence that the tree has become dangerous. The only factum that the complainant has constructed his house near the mango tree and a branch of tree is there near the lintel wall of the house of the complainant, is not a proof that the branch or tree is dangerous to the house or persons living there. The dispute is only with respect to the fact that the complainant wanted to raise second storey after cutting the branch of the tree. This is simply a civil dispute and the order passed by learned Magistrate is in accordance with law. The learned lower Appellate Court has misread the provisions of Section 133 of the Code by concluding that the tree has become dangerous, without there being any evidence to that effect. Simply to give relief to the complainant by permitting him to cut branches in order to raise second storey of the house is no way the intend of Section 133 of the Code. 8. So, in view of the above discussion, this Court finds that the order passed by learned Sessions Judge, Hamirpur, H.P., is without appreciating the law correctly and to its true perspective in the facts and circumstances of the present case. Consequently, the order passed by learned Sessions Judge, Hamirpur, H.P., is set aside and the order passed by Sub-Divisional Magistrate, Bhoranj, District Hamirpur, H.P., is upheld. 9. With these observations, the petition, so also pending application(s), if any, stands disposed of.