Mathuranayagam Pillai vs The Municipal Council

Horace Owen Compton Beasley, Kt., C.J.—The respondents here are the Municipality of Madura and in the exercise of their statutory

powers they erected some posts upon which to carry some electrical wires. At the time when these posts were erected, it was plain to the first

witness for the Municipality, the Municipal Electrical Supervisor, that there was a cocoanut tree belonging to the petitioner, the defendant in the

suit, and standing on his property which was a very old one and ought to have been felled and removed. The tree, after the erection of the posts,

fell and caused damage to a post. Repairs were effected to it by the Municipality and the petitioner was sued for the amount expended by them on

those repairs. The learned District Munsiff gave the Municipality, a decree on the ground that the damage caused to the post was due to the

negligence of the petitioner in not cutting down the old tree. According to the evidence and the finding the tree fell not on account of being blown

over by any high winds, but on account of its old condition. It must be mentioned that u/s 219 of the Madras District Municipalities Act, the

Municipality is empowered to call upon the owner of any tree to secure, lop, or cut it down should it be likely to endanger any person or structure

and in the event of the notice being disregarded themselves either to cut or lop or remove the tree. Therefore the Municipality could have called

upon the petitioner to remove it as being a source of danger to the post erected by them. That they knew of the dangerous condition of the tree is

apparent from the evidence of P.W. 1, the Municipal Electrical Supervisor. He says that the tree was about 15 feet from where the post was and

that even when the post was fixed there, he had seen the tree there and noted it as a very old one and feared that it might fall. He, however, did not

send any report to the Chairman requesting him to send a notice to the petitioner. He says that he did not do so because it was not the practice to

do so. He also adds that by a look at the tree he could say whether it was an old tree or not. The position therefore is that fully aware of the

nearness of the tree to the post and that it was an old one and might fall and of course in falling cause damage to Municipal property, the

Municipality nevertheless erected the post and having erected the post, they did not exercise the powers which are given to them u/s 219 of the

Act. It is all very well to argue that the powers are merely permissive. That is quite true. But what is to be said of the position of a body which is

invested with those powers, and knows of the danger and its imminence and what is likely to result in and stands by and suffers the danger to

remain? In my view, this is clearest possible evidence of contributory negligence on the part of the Municipality. It is quite true that the tree

belonged to the petitioner and was on his land. It is not quite clear whether the post was erected on municipal land or defendant''s land. It was

stated by the earned Counsel for the petitioner that it was on his land. But this is contested by the respondents and I deal with the case on the

assumption that the post was not standing on the petitioner''s land at all. As contended by the petitioner if a person keeps upon his land something

which he knpws to be dangerous such as a tree in a dangerous condition and it falls over and damages somebody else''s property, he must be held

to be guilty of negligence. That as a general proposition is perfectly correct and nobody will contradict it. But there comes into this, the position of

the respondents. As before stated, they knew perfectly well of the presence of this, according to them, very dangerous tree. They could, before

erecting the post, have required the petitioner to fell the tree and remove it and if he had refused to do so they could themselves have felled it and

removed it : Or they could have put up the post first and, having put it up, called upon the petitioner to remove it and on his failure to do so could

have done so themselves. They did nothing. They stood by, knowing of the existence and presence of this dangerous tree and could themselves

have avoided the danger and when that happened, which they themselves feared would happen, seek to make the petitioner responsible for it.

There is no evidence at all, that the petitioner knew that the tree was dangerous; but assuming that he did, his attention was not called to it by the

Municipality. Under these circumstances the District Munsiff not having addressed himself to the question of contributory negligence as he ought to

have done and in my view there being clear evidence of contributory negligence which was really the cause of the damage, the Civil Revision

Petition must succeed and be allowed with costs and the decree in the Court below reversed and the suit dismissed with costs.