IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 310 OF 2009 MR. ANTONIO LOBO ... Petitioner Versus MR. VAMAN DHAVJEKAR AND 2 ORS., ... Respondents Mr. V.P.Thali,Advocate for the petitioner. Mr. A.D.Bhobe, Advocate for the respondent No.1. Mr. G. Shirodkar, Govt. Advocate for the respondent Nos.2 & 3. Coram:- N. A. BRITTO, J. Date:- 3rd June, 2009 ORAL ORDER : Heard the learned Counsel on behalf of the parties. 2. The challenge in this petition is to the order dated 14.05.2009 of the Conservator of Forests, upholding the order dated 27.01.2009 of the Deputy Collector, passed under Section 12(A) of the Goa Preservation of Trees Act, 1984.("the Act" for short.) 3. The respondent No.1 had approached the Deputy Collector with his application dated 30.06.2008 contending that that a mango tree belonging to the petitioner herein, was likely to fall on his house. A notice to show cause was issued to the petitioner, and after the petitioner filed a reply to the said show cause notice, the Deputy Collector was pleased to call for a report from the Range Forest Officer. The Range Forest Officer by his report dated 22.09.2008 opined that the tree was leaning over the house of the respondent No.1 herein and, was otherwise mature and diseased. When the said report was filed, the petitioner herein, sought an opportunity to cross-examine the said Range Forest Officer, which opportunity was declined to the petitioner. 4. Based on the said report dated 22.09.2008, the Deputy Collector proceeded to pass the impugned order dated 27.01.2009 holding that no purpose would be served by summoning and cross-examining the said Range Forest Officer, and, based on his opinion, ordered the cutting of the said mango tree. The First Appellate Authority i.e. the Conservator of Forests called for another report from Sub Divisional Forest Officer and, who appeared before the Conservator of Forests on 05.05.2009. The Conservator of Forests held that both the parties had enquired nothing from the said Sub Divisional Forest Officer. The Conservator of Forests then proceeded to uphold the order of the Deputy Collector. 5. The main grievance in the petition raised on behalf of the petitioner, is that the impugned order dated 27.01.2009 was passed without affording a reasonable opportunity to the petitioner to cross-examine the said Range Forest Officer on his said report and further contention is that the said report could not have been relied upon without affording an opportunity to the petitioner to cross-examine him. It is also submitted that the first report dated 22.09.2008 is contrary to the second report dated 20.03.2009 called by the Appellate Authority. On the other hand, on behalf of the respondent No.1, it is contended that the Range Forest Officer in his report dated 22.09.2008 had only given the factual position as regards the tree and, therefore, there was no question of any opportunity having been given to the petitioner herein to cross-examine the said Range Forest Officer. The learned Counsel further submits that there is nothing contrary between the said reports dated 22.09.2008 and 20.03.2009. 6. Section 12(A) of the Act deals with removal of trees which are in ruinous state or are likely to fall. That can be done only after a reasonable opportunity is given to the person concerned. The Petitioner herein, inter alia, had taken the plea that the tree was healthy and produced mangoes and had withstood many a cyclonic wind. Admittedly, the impugned order of the Deputy Collector is not an order which has been made in terms of the second proviso to Section 12(A) of the said Act. Admittedly, the petitioner herein as a respondent in the proceedings, was given a notice to show cause as to why a mango tree may not be cut and had shown cause in his said reply. The Range Forest Officer was called upon thereafter to submit the report and the said report has been relied upon without giving a reasonable opportunity to the petitioner to cross-examine the said Range Forest Officer on the said report and the order passed by the Deputy Collector, is entirely based on the said report. Prima facie, it does appear that the two reports are conflicting. The first report dated 22.09.2008 discloses that the Tree was mature and diseased while the second report shows that the mango tree is healthy and had no visual disease and at the time of inspection there were no dried/diseased branches. Both the reports did not indicate whether the mango tree was likely to fall. Likelihood of falling ought to be in normal weather conditions. The mango tree could not be ordered to be cut by the Conservator of Forests, if he was to go by the second report dated 20.03.2009 called for by him. One does not know whether the Range Forest Officer has any expertise as regards trees and their diseases. Nevertheless, in my view, the opinion given in the first report dated 22.09.2008, could not have been made use of by the learned Deputy Collector unless the same was tested by cross-examination, or in other words, the petitioner was given an opportunity by way of cross-examination, to test the correctness of the said opinion, which opportunity was denied to the petitioner. 7. As a result, the impugned order suffers from the vice of having been passed without affording a reasonable opportunity to the petitioner as contemplated by the first proviso to Section 12(A) of the Act and as such, requires to be disturbed and set aside. 8. Consequently, the petition deserves to succeed. The impugned orders are hereby set aside. Both the parties would be free to lead evidence before the Deputy Collector in support of their respective claims. Both the parties to appear before the Deputy Collector on 09/06/2009 at 10.30 a.m. The Deputy Collector is hereby directed to dispose of the proceedings within a period of 60 days from that date. N. A. BRITTO, J. SMA