THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.23603 OF 2011 ORDER: This writ petition is filed seeking to issue writ of Mandamus directing respondent Nos.1 and 2 to take action in accordance with Section 509 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short, ‘the Act’) or any other provision of the Act, and remove the coconut tree from the premises of respondent No.3 to ensure the safety of petitioner’s family members and also the passers by on the street of Rakshapuram Colony, Hyderabad. 2. The case of the petitioner, in brief, is that he is the owner and possessor of house bearing Municipal No.18-8-254/107, Rakshapuram Colony, Saidabad Post, Hyderabad. Respondent No.3 is the owner of house in plot No.106 bearing Municipal No.18-8- 254/106. Respondent No.3 has planted a coconut tree adjacent to his compound wall, which has grown to a height of about 35’-0” and leaned towards his house. On account of heavy winds, the dried/half dried branches and the dried/ripen coconuts used to fall in his compound. Though the petitioner and the Rakshapuram Co-operative House Building Society requested respondent No.3 to cut the said coconut tree, there was no use. He also made a representation, dated 02.08.2007, to the Deputy Commissioner, Circle No.1 of the respondent Corporation and later a reminder, dated 01.19.2007, to that effect but of no use. Respondent No.3 lodged a police complaint against him on 02.10.2007 for the offences punishable under Sections 427 and 448 I.P.C., which was numbered as C.C.No.417 of 2008 on the file of VII Additional Chief Metropolitan Magistrate, Hyderabad and the same was ended in acquittal. He also made a representation, dated 22.07.2011, to respondent No.2 but there was no use. Under Section 509 of the Act, the Commissioner can remove a tree, which is likely to cause danger to public safety or danger of passengers. Hence, the writ petition. 3. A detailed counter affidavit has been filed by respondent No.2 denying the averments made in the writ petition and stated that the tree has only slightly titled towards the house of the petitioner; that the location of the tree is 5 ½ feet away from the common compound wall of the petitioner and respondent No.3 and much away from the petitioner’s property on the north-east corner of the house of respondent No.3; that only a part of crown of the tree seems to be bent towards the petitioner’s property and the adjoining road; that as per the observation made, it is noticed that the tree in question neither poses any danger to the compound wall of the petitioner nor to his family members; that the coconut tree in question is of a palm variety and does not share its leaves often and happens once in 4-5 months; that when contacted, respondent No.3 assured that he would give an undertaking in writing for removal of leaves before senescence; that on inspection by the respondent officials, it was felt that it was not necessary for removal of the tree in question as it was not causing serious threat or obstruction to any individual or property; that since the tree is healthy and does not pose any danger to public safety, the provisions of the Act do not attract; that neither the neighbours nor the passers by did not complain about the tree except the petitioner; that there was rivalry existing between the petitioner and respondent No.3; and hence, the petition is devoid of merit and is liable to be dismissed. 4. Learned counsel for the petitioner contended that the coconut tree in question was lean towards the house of the petitioner, which is dangerous to the inmates of the house of the petitioner, and the petitioner’s family is in danger; that the photographs would clearly go to show that the said tree is lean towards the house of the petitioner and hence, he prays to direct respondent Nos.1 and 2 to take appropriate action, as required under law namely under Section 509 of the Act. 5. On the other hand, learned Standing Counsel appearing for respondent Nos.1 and 2 contended that the tree was slightly leaned toward the petitioner’s property; that as per the observation of the officials, it is noticed that the tree in question neither poses any danger to the compound wall of the petitioner nor his family members and therefore, he prays to dismiss the writ petition. 6. Section 509 of the Act reads as under: “Removal and trimming of trees, shrubs and hedges:- (1) If in the opinion of the Commissioner:- (a) any hedge is at any time insufficiently cut or trimmed, or over grown, with prickly pear or other rank of vegetation; or (b) any tree or shrub has fallen or is likely to fall, to the danger of public safety, or overhangs or obstructs any street to the inconvenience or danger of passengers therein; the Commissioner may, be written notice, require the owner or occupier of the land on which such hedge, tree or shrub is or has been growing; (i) to cut down such hedge to a height not exceeding four feet and to a width not exceeding three feet, and to remove any such prickly pear or other rank vegetation therefrom; or (ii) to remove cut, lop or trim such tree or shrub, as the case may be. (2) In any case falling under Clause (b), the Commissioner may, if for the public safety it shall appear to him necessary so to do, cause any tree or shrub to be removed, cut, lopped or trimmed, without previously giving the said owner or occupier notice as aforesaid, and the expenses thereof shall, nevertheless, be paid by the owner or occupier.” It is not in dispute before this Court that the coconut tree in question is aged about 35 years and is located at a distance of 5 ½ feet from the compound wall of the petitioner and respondent No.3. As seen from the counter allegations, the tree was slightly leaned towards the house of the petitioner. Section 509 of the Act applies only when there is a danger to public safety with regard to the tree falling or likely to fall, obstructs or over hangs towards any street to the inconvenience or danger of passengers, who are walking o the road. Admittedly, there is no passage between the house of the petitioner and respondent No.3. When there is no passage causing danger or inconvenience to the pedestrians, who used to use the street, then Section 509 of the Act cannot be invoked. Even assuming for a moment that there is an inconvenience or danger to be caused to the petitioner and his family members, still the remedy is otherwise. As a matter of fact, it seems that disputes exist between the petitioner and respondent No.3. Respondent No.3 filed a criminal case against the petitioner for the offences punishable under Sections 427 and 448 I.P.C. No doubt, that case ended in acquittal, but there were ill- feelings between the petitioner and respondent No.3. Therefore, in view of the fact that no untoward incident had happened because of falling of coconuts or the branches of the tree for the last twenty five years, the question of issuing any direction to respondent Nos.1 and 2 to invoke their authority to take appropriate decision under Section 509 of the Act does not arise. When the tree in question lies in between the two houses and it does not cause any danger to the public, who walk in the street, or inconvenience or danger to the passengers on the street, Section 509 of the Act cannot be invoked. Hence, there are no grounds to issue any direction to respondent Nos.1 and 2 and the writ petition is liable to be dismissed. 7. Accordingly, the Writ Petition is dismissed leaving open the remedies available to the petitioner under law. There shall be no order as to costs. ___________________ JUSTICE K.C.BHANU 27th October, 2011. AMD THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.23603 OF 2011 Date: 27.10.2011 AMD