1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 114 OF 2009 Shri Shanu Thulo Velip, Major in age, Agriculturist, R/o Vaizawada, Shristhal, Canacona-Goa. ... Petitioner versus 1. Shri Sukdo Puno Velip, R/o Vaizawada, Shristhal, Canacona-Goa. 2. Shri Sukdo Ram Velip, R/o Nuvem, Shristhal, Canacona-Goa. 3. Shri Ganesh Kust Velip, R/o Vaizawada, Shristhal, Canacona-Goa. 4. Public Prosecutor, Office of the Public Prosecutor. ... Respondents Shri P. A. Kamat, Advocate for the Petitioner. Shri Ryan Menezes, Advocate for Respondent No.1. CORAM : N. A. BRITTO, J. DATE : 11TH AUGUST, 2010. 2 ORAL JUDGMENT By this petition filed under Section 482 of the Code(Code of Criminal Procedure, 1973), the Petitioner assails the Judgment/Order dated 17-8-2009 of the learned Additional Sessions Judge, Margao, upholding the Judgment/Order dated 13-3-2009 of the learned Executive Magistrate, Canacona, by which four coconut trees which were inclined on the Complainant's house(math) were ordered to be cut. 2. After the said Orders were passed, two of the trees which did not belong to the Petitioner herein but belonged to the other Respondents have been cut as submitted by learned Counsel on behalf of both the parties. However, learned Counsel have not been able to inform the Court as to which of the said two trees from there identified as C-1, C-2, C-3 and C-4 have been cut. 3. Some more facts are required to be stated to dispose of this petition. 4. Respondent No.1 by information dated 14-6-2007 addressed to the Executive Magistrate stated that there was a Kul Purush Devasthan(math) belonging to the Velip Community where the villagers performed religious 3 activities and that there were three coconut trees which were inclined on the said math which damaged the roof of the said math by falling of coconuts, coconut palm leaves, and such a nuisance must be removed being caused to the said public place. It was also stated that the said three coconut trees were in dangerous condition and there was every possibility of the said coconut trees falling on the math causing loss to the math and the devotees of the area. 5. The said information was sent to the Police for inquiry and report and threreafter based on a report a conditional Order dated 10-6-2007 came to be issued. The conditional Order dated 10-8-2007 states that there are four coconut trees and one bread fruit tree which was inclined on the dwelling house/math and dry coconuts and dry palm leaves fall on the said house causing damage to the house roof tiles thereby posing danger to the house and the inmates therein. The Petitioner herein along with Respondent Nos.1 and 2 were directed to cut the said trees and the branch of the bread fruit tree or show cause why the same should not be ordered to be cut. 6. An inquiry followed. In the inquiry, the informant was examined and so also the Zonal Agricultural Officer who had inspected the said trees and given his opinion. The informant in his evidence had stated that on the said math there were inclined three coconut trees belonging to the Petitioner herein which caused damage to the roof of the math which is of Mangalore tiles, by 4 falling of coconuts and dry leaves. According to him, the first coconut tree, was inclined on the said math(Kulpuruswh Devasthan) for the last about 35 years but till date no devotees were injured by the falling of the coconuts or palm leaves during the period of 35 years. According to him, the second tree was in the inclined condition for about 10 to 15 years, and the third tree was in an inclined condition for about 20 years, and the fourth tree for about 10 years. He had also stated that prior to this complaint/information, he had filed a complaint about 3 years ago to the Police as well as to the Executive Magistrate but he did not know the outcome of the said complaint. The Zonal Agricultural Officer had stated that the said four trees were inclined towards the house; the root system was slightly exposed; the coconut trees were on raised soil level and there was no strong support at the base of the trees. He had also opined that during high wind velocity the coconut trees may get uprooted and may fall towards the direction of Complainant's house causing danger to life and property. 7. Based on the said evidence, the learned Executive Magistrate observed that the Zonal Agricultural Officer was of the opinion that the said coconut trees during high wind velocity and stormy condition may get uprooted and may fall towards the direction of the Complainant's house(math), causing danger to the life and property. As regards the branch of the bread fruit tree, the learned Executive Magistrate found that the said Zonal 5 Agricultural Officer had opined that there was no danger from the bread fruit tree. The learned Executive Magistrate therefore came to the conclusion that the coconut trees were posing danger to the life and the property of the public who visit the math during festivals, and, therefore the proper remedy was to order cutting down of the said coconut trees by making the conditional order, absolute. 8. The learned Additional Sessions Judge found that the case of Shri Peter Fernandes v. State of Goa(2007(2) GLR 228) was inapplicable to the facts of the case. The learned Additional Sessions Judge placed reliance on the case of Smt. Maria Jesus Fernandes v. Shri Ganpat and another (unreported Judgment dated 6-12-2001 in Criminal Miscellaneous Application No.113 of 2001) and observed that no conclusive evidence could really be tendered. The learned Additional Sessions Judge came to the conclusion that the Executive Magistrate was fully within his juridiction to pass the impugned Order holding that the four coconut trees are causing damage to the structure(Math) and likely to cause harm to the life and property of the inmates, and, therefore the learned Executive Magistrate was justified in directing the opponents to cut the coconut trees, four in number which are leaning over the Math of the Complainant, and, therefore there is no perversity in the impugned Order, so as to come to a different conclusion. 6 9. Shri P. A. Kamat, learned Counsel who appears on behalf of the Petitioner, submits that both the Courts below have not given any finding whether the four coconut trees or for that matter two coconut trees which remained uncut, posed any imminent danger of falling which conclusion was absolutely necessary to be arrived at before any order for cutting down of coconut trees could have been passed. Shri Kamat, learned Counsel has placed reliance on a Judgment of this Court in the case of Shri Peter Fernandes v. State of Goa(supra) wherein this Court had referred to the cases of Sudhakar Vithalroa Welankiwar v. Liberty Services and others(1983 Mh LJ 676), Kachrulal Bhagirath Agrawal and others v. State of Maharashtra and others((2005) 9 SCC 36) and had come to the following conclusion:- “14. This Court in unreported judgment dated 23-11-2006 in Criminal Writ Petition No.25 of 2006 in the case of Mr. Vyanjkatesh Y. Gaonkar v. State, had noted that proceedings under Section 133 of the Code are not meant to settle private disputes between two parties. Section 133 of the Code provides for a summary and quick remedy, inter alia, for cutting down of a tree which was likely to fall. The word “likely” is otherwise not defined in the Code but its ordinary dictionary meaning as per Concise English Dictionary, is such as well might happen or be true, promising probably. There is no doubt whether a particular tree or its branch are likely to fall cannot be foretold with any degree of accuracy but 7 certainly some evidence must be produced to show that a particular tree is likely to fall either because it has developed a crack or is infested with insects or suffers a disease or weakness or other infirmity etc. which would make it fall. The danger of falling must be in praesenti, as observed by the Apex Court in Kachrulal(supra) and in normal weather conditions and not in distant future since one cannot foretell as to what could happen in abnormal weather conditions. Only because the informant feared that the branches of the said trees might fall in the ensuing monsoon season was insufficient to have given any jurisdiction to the learned Executive Magistrate who has initiated the proceedings under Section 133(1)(d) of the Code. Likewise a mere allegation that the trees had become old was insufficient for the learned Executive Magistrate to conclude that they were likely to fall and invoked his jurisdiction under the said section”. 10. This Court had further observed that in case the said branches of the trees belonging to the Petitioner caused any nuisance to the informant, her remedy was clearly by way of a civil suit, and it was necessary for the informant who approached the Executive Magistrate for initiation of proceedings under Section 133(1)(d) to have shown that the danger was imminent i,.e, in praesenti that the tree was likely to fall. It was observed that the Magistrate under Section 133 of the Code exercises a public duty and he 8 can exercise it only when jurisdictional facts are present. There were none present in this case. 11. On the other hand, Shri Ryan Menezes, learned Counsel on behalf of Respondent No.1, submits that both the Courts below based on the evidence have come to the conclusion that the trees are likely to fall, and, therefore this is not a case for interference under Section 482 of the Code. Learned Counsel submits that the case of Shri Peter Fernandes v. State of Goa and others(supra) is distinguishable in that case there was no evidence like the case in hand, of a Zonal Agricultural Officer who had opined that the root system was slightly exposed, the trees were on raised soil level, and there was no strong support at the base, and, therefore the ratio of the case of Shri Peter Fernandes v. State of Goa and others(supra) cannot be made applicable to the facts present in this case. Learned Counsel submits that the case at hand is not based on a mere apprehension but on the basis of expert evidence. Learned Counsel has also placed reliance on Somnath V. Poi Dhungat v. State and another(1974 CR.L.J. 522 BOM) wherein this Court had observed that from the perusal of evidence there were witnesses who had testified that the trees which have been ordered to be cut were dangerously leaning on the house of the Respondent and were likely to fall if a strong breeze blows. Learned Counsel therefore submits that based on the said observations, this Court had upheld the orders of the Courts below, ordering 9 the cutting down of four coconut trees which were dangerously leaning over the house. 12. The Judgment of this Court in the case of Shri Peter Fernandes v. State of Goa and others(supra) has been delivered after taking note of the provisions of Section 133 of the Code and the Judgment of the Apex Court in Kachrulal Bhagirath Agrawal and others v. State of Maharashtra and others(supra) wherein the Apex Court had, inter alia, observed that the trade must be injurious “in praesenti” to the health or physical comfort of the community. It is also to be noted that Section 133(1)(d) of the Code also provides for a support to a tree being given in case it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by. As can be seen from the evidence of the informant the trees in question had stood their ground firmly, if I may use that expression, in that condition from 10 to 35 years without falling, and even an application which was made three years previously was not pursued dilgently, and that only showed that there was no imminent danger of the said trees falling under normal weather conditions. The opinion expressed by the Zonal Agricultural Officer was not based on any factual consideration. It was not his case that any of the said trees were to fall because there was no strong support at the base of the trees or that because any of the said trees were on a soil level which was different from the other levels. If that was the case adequate 10 measures could be taken. His opinion is only an apprehension which he expressed when he stated that during high wind velocity and stormy conditions the coconut trees may get uprooted and fall causing danger to life and property. In such a condition, they could even fall on the other side, and not on the side of the math. One cannot say what can happen in cases of stormy conditions and the proceedings under Section 133 of the Code are certainly not meant to take care of such conditions which can never be predicted. Both the Courts below have not considered this aspect of the case. The Judgment of Shri Peter Fernandes v. State of Goa and others(supra) was squarely applicable to the fact situation prevailing in this case, as well. 13. Consequently, this Writ Petition deserves to succeed. The impugned Judgment and Orders of both the Courts below are hereby set aside with no order as to costs. N. A. BRITTO, J. RD