M. Ganesan vs N.P. Rengasamy

Suryamnrthy, J.—This is a Criminal Revision Case against the order of the learned Revenue Divisional Officer and Ex-Officio Sub Divisional

Magistrate, Tiruchirapalli, directing the removal of one coconut tree in S.F. No. 66/1 of Allur village, Tiruchi Taluk, on the ground that it is leaning

over the pathway and the adjacent house and that it is likely to cause imminent danger to the by-passers and the residents of the adjacent house.

The coconut tree in question is said to be leaning over the property of one. N.P. Rengasamy, the respondent herein. Coconut trees leaning like the

tower of Pisa is not an extraordinary sight. Like other trees, coconut trees also very often lean on one side or the other. The fruits of the trees are

periodically plucked by the owner of the trees, and therefore, there is very little possibility of the fruits falling on the head of the passer-by or the

neighbours residing within the area over which the tree is leaning. There are millions of coconut trees in South India, and yet I have not heard of a

coconut falling on the head of any human being while he is passing through the coconut tope. That is because as I said earlier, the fruits are plucked

periodically. Even in cyclones when coconut trees are known to fall, they have not fallen on the heads of human beings.

This coconut tree, which has been in existence for over 30 years and more, has been producing fruits or should have been producing fruits at

least for the last 20 years, and yet not one instance of a coconut falling on the head of any human being or animal or any of the products of the tree

falling on the head of any human being or on the house of the neighbour has been brought to the notice of the learned Revenue Divisional Officer-

cum-Ex-Officio Sub Divisional Magistrate, Tiruchirapalli, who passed the order now impugned before me or the Executive Magistrate who have

passed similar orders earlier, which have been set aside by this Court. Therefore, the opinion of the learned Magistrate that the tree is an imminent

danger is not based either on any acceptable evidence or taking into consideration the normal and natural course of events.

Moreover, S.133, Crl.P.C., is not meant to empower the Executive Magistrates to pull he chestnut out of the fire for private litigants, as in the

instant case. There would appear to be some dispute between the revision petitioner and his neighbour and at the instance of his neighbour, the

Executive Magistrates have exercised their powers under S.133, Crl.P.C. to cut and remove the tree. If the opinion of the learned Magistrate that

the tree constituted an imminent danger to the passer-by is upheld, no coconut tree could be allowed to exist on any land adjacent to the public

roads or pathways. Moreover, the passage between the houses of the petitioner and the respondent herein is not a public pathway. Even assuming

that it is a common pathway, it can be common only to the revision petitioner and the respondent herein. As observed already, this tree has been in

existence from a very long time. In fact, it would appear to have been in existence long before the neighbour, viz., the respondent herein, purchased

his house adjacent to the property of the revision petitioner. In the circumstances no action can be taken under S.133, Crl.P.C.

In Kalyanasundaram v. Kalyani Ammal 1975 II M.L.J. 93 : 1975 L.W. (Crl.) 168 Ratnavel Pandian, J., has held:

No action can be taken under S.133 of the Criminal Procedure Code where the obstruction or the nuisance has been in existence for a long period

and the only remedy open to the aggrieved party is to move the Civil Court.

For this proposition, the learned Judge has relied on the ratio in Asharfi Lal Vs. The State, and Murlidhar Bhila Patil Vs. Onkar Vyankat Patil, . It

would be seen from those decisions that proceedings under S.133, Crl.P.C. can be taken only in cases of emergency where the public is put to

great inconvenience and may suffer an irreparable injury if the encroachment or nuisance is not removed at once by adopting the summary

procedure, and that no action under S.133, Crl.P.C. can be taken where the obstruction or nuisance, has been in existence for a long time. This

obstruction or nuisance, if any, alleged to have been caused by the tree in question has been in existence for a long time without any change in the

circumstances, and, therefore, the removal of this alleged nuisance cannot be said to be urgent. In the circumstances, the respondent may go to a

Civil Court to work out any relief that he may be entitled to. The proceedings under S.133, Crl.P.C are uncalled for.

Therefore, the order of the learned Revenue Divisional Officer and Ex-Officio Sub Divisional Magistrate, Tiruchirapalli, is set aside. This revision

case is allowed.