Himachal Pradesh High Court
Prem Kumar And Anr vs Tilak Raj And Ors on 30 August, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP No.4136/2018 in RSA No. 73/2015 .
Reserved on: 27.8.2018
Decided on: 30.8.2018
Prem Kumar and anr. ...... Appellants/Applicants
Vs.
Tilak Raj and ors. ..... Respondents/Nonapplicants
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No.
For the appellants/ Mr. N.K. Sood, Senior Advocate with
applicants: Mr. Aman Sood, Advocate.
For the respondents/: Mr. Sanjeev Sharma, Advocate.
Nonapplicants
Justice Tarlok Singh Chauhan
CMP No.4136/2018
The appellants/applicants have filed the instant application for grant of following directions:
1. Tunni trees reflected in Annexure A1 and 2, Khirk tree as reflected in Annexure 4, may kindly be permitted to be lopped from its crown so that it may not cause any further threat to the adjoining property.
1Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...2...
2. Tunni tree as reflected in Annexure A3 may kindly be ordered to be cut from below trunk level/ground level so that it may not cause any further threat to the adjoining property.
.
3. Tree as reflected in Annexure P5 may kindly be ordered to be cut above its Bole level and further the appellants applicant and further be permitted to carry out the repairs of cow shed and replace the same with tin roof.
2 It is averred in the application that this Court while admitting the appeal on 5.3.2015 had directed the parties to maintain status quo qua nature, possession and title of the suit land and this order was subsequently made absolute on 24.4.2015 reserving liberty to the parties to seek its modification, if need so arises subsequently. It is further averred that upon the suit land there are numerous trees besides residential house and cowshed of the appellants. Recently, due to storm, bad conditions and heavy rains, branches of few of the trees have overlapped and over hanged the property of the adjoining owners and certain trees have given way and have tilted towards the property /residential accommodations of adjoining owners in the neighbourhood and resultantly, the adjoining owners are complaining about the intended threat to their life and property and cutting /lopping of these trees. The crown and branches of one Tunni tree is tilting towards the ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...3...
house of one Tripta Devi, who in fact has filed a complaint with the Municipal Council, Sujanpur and in turn, the Executive .
Officer, Municipal Council, Sujanpur, has issued a notice dated 21.3.2018 for lopping of the tree or for taking steps for cutting down the tree. In support of such averments, certain photographs have been appended by the applicants.
3 Upon notice, the respondents have filed their reply, wherein preliminary objection was taken to the effect that the application is not maintainable being false, baseless, frivolous and totally misconceived as the applicants have not approached this Court with clean hands and have concealed material facts.
It is averred that during the pendency of the appeal, the applicants had already done the lopping and cutting of the trees much prior to filing of the present application without obtaining permission from this Court that too when the order dated 24.4.2015 was in operation. Therefore, by doing so, the applicants have violated the orders /directions passed by this Court and therefore, are liable to be dealt with appropriately for disobedience of the orders passed by this Court. Second preliminary objection has been raised to the effect that the applicants are trying to abuse the process of law by making false, ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...4...
baseless, frivolous and misconceived application and the same, therefore, deserves dismissal with exemplary costs.
.
4 While reiterating these averments, in the reply on merits it has been averred that the present application has been moved by the applicants simply in order to save their skins as they have violated the orders/directions passed by this Court. It is further averred that the application has been filed with ulterior the order dated 24.4.2015 modified.
r to motive that too based on concocted story simply in order to get 5 The applicants have filed rejoinder to the reply filed by the respondents wherein they have denied the allegations set out in the reply and reiterated those contained in the application.
In addition thereto, the applicants have placed on record the compact disc and videography of the area, which was got done on 2.6.2018 to show the position of the trees that were actually existing on the spot. As regards the photographs appended by the respondents in support of their contentions that the applicants had lopped and cut down few of the trees, it is averred that these photographs nowhere connect or indicate the involvement of the applicants in the so called alleged lopping and cutting of the trees on the suit land. Even the time line, specific date, identity of the suit land and period when allegedly the ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...5...
applicants are said to have cut/lopped the trees on the suit land are conspicuously missing in the reply. It has been specifically .
averred that the applicants have not violated any part of the orders passed by this Court much less cut and lopped the trees in question.
6 The application came up for consideration on 6.7.2018 when this Court passed the following order: "The dispute between the parties relates to land comprised in Khata No.252, Khatauni No.315, Khasra Nos. 1495, 1496, 3494/1497, 3497/1497, 3499/1499, kitas5, area measuring 4 Kanals 8 Marlas along with one room katcha slatephosh measuring 4.50 x 4.50 metres and Khata No. 253, Khatauni No.316, Khasra Nos. 3493/1497, 3496/1498, 3498/1499, kitas3, area 19 Marlas of which 1/4th share along with one room katcha slateposh measuring 4.20 x 4.20 metres, situate in Tika Sujanpur, Tappa Bhaleth, Tehsil Sujanpur, District Hamirpur (HP).
2. The suit filed for preemption by the plaintiffsappellants was dismissed by the learned trial Court and the appeal filed by them was also dismissed by the learned first appellate Court constraining them to file the present appeal.
3. This Court vide its interim order dated 05.03.2015 directed the parties to maintain status quo qua nature, possession and title of the suit land and the said order was made absolute on 24.04.2015, reserving liberty to the ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...6...
parties to seek modification of the order, if need so arises subsequently.
4. The applicants/appellants have now filed this .
application with the following substantive prayers: "(i) Tunni trees reflected in Annexure A1 and 2, Khirk tree as reflected in Annexure4, may kindly be permitted to be lopped from its crown so that it may not cause any further threat to the adjoining property.
(ii) Tunni tree as reflected in Annexure A3 may kindly be ordered to be cut from below trunk level/ground level so that it may not cause any further threat to the adjoining property.
(iii) Tree as reflected in Annexure P5 may kindly be ordered to be cut above its Bole level and the appellantsapplicants further be permitted to carry out the repairs of cow shed and replace the same with tin roof."
5. It is averred that numerous trees of various varieties like 'Tunni, Khirk' and other species etc. are standing upon the suit land besides the residential building and cowshed of the applicantsappellants. Recently due to stormy, bad conditions and heavy rains in the area, branches of few of the trees have overlapped and are overhanging over the property/buildings of the adjoining owners and certain trees on the suit land have also given way and tilted towards the property/residential accommodation of the adjoining owners in the neighbourhood and if not allowed to be removed or lopped, the same are likely to cause damage not only to the property of the applicants appellants but those of the adjoining owners, more ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...7...
particularly, the house of one Smt. Tripta Devi. It is lastly averred that even the Municipal Council, Sujanpur through its Executive Officer has issued the notice dated .
21.03.2018 for lopping of the trees and to take steps for cutting of the trees. The applicantsappellants have annexed with the applications photographs of the spot Annexures A1 to A5.
6. The nonapplicants/respondents have filed reply to the application wherein they have raised preliminary objections regarding the application being not maintainable on account of its contents being false, frivolous and totally misconceived and on the ground of concealment of facts. It is specifically averred that the applicantsappellants have already lopped/cut the trees standing on the suit land that too without prior permission of this Court and in support of such contentions have also annexed certain photographs Annexures R1 to R8. In addition thereto, on merits, the averments made in the preliminary objections have been reiterated by the nonapplicants/respondents and it is submitted that as regards Smt. Tripta Devi, she is mostly residing in Shimla and it has been controverted that no branches of trees are overlapping the house of the adjoining owners and moreover there is no 'Khirk' tree existing on the land adjoining to the house of Shri Anil Kumar.
7. The applicantsappellants have filed rejoinder to the reply filed by the nonapplicants/respondents wherein they have categorically denied the allegations of the non applicants/respondents regarding violation of the orders passed by this Court. It is further averred that the ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...8...
applicantsappellants have recently photographed the suit land on 02.06.2018 and the trees standing thereupon which would reflect the true and factual position existing .
on the spot, besides belying the stand of the non applicants/respondents. It is also averred that Annexures R1 to R6 in noway connect or indicate the alleged involvement of the applicantsappellants in the socalled alleged lopping and cutting of the trees on the suit land. Thus, the entire case of the applicantsappellants is that of denial.
I have heard the learned counsel for the parties and have gone through the material placed on record.
8. Evidently, both the parties have come up with conflicting versions which cannot be adjudicated upon without calling for a report of the local investigation. Accordingly, Shri Ankush Dass Sood, Senior Advocate along with Shri J.L.Bhardwaj, Advocate, are appointed as Commissioners to visit the spot and will identify the suit land with the assistance of Tehsildar and after identifying recently felled the suit land to report about the trees whether they have been or lopped, as alleged by the non applicants/respondents. They would also report whether any of the trees or its branches are dangerous at the spot and if so, then DFO,Hamirpur, shall immediately cut/remove/lop the trees/branches as per procedure.
9. The fees of the Commissioners are fixed at Rs.90,000/ inclusive of all expenses, out of which Rs.50,000/ shall be paid to Shri Ankush Dass Sood, Senior Advocate, whereas, remaining Rs.40,000/ shall be paid to Shri J.L.Bhardwaj, Advocate. The SDM, Sujanpur, is directed to provide ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...9...
adequate and proper facility of boarding and lodging to the Court Commissioners on their visit. The Court Commissioners are directed to inform the Office of the .
Advocate General so as to apprise the concerned SDM about the proposed date of their visit. The Tehsildar, Sujanpur and DFO, Hamirpur, are directed to ensure their personal presence on the date of visit of the Commissioners and on every other date that the Commissioners may require their presence with all other assisting staff. The report by the Commissioners be submitted before this Court within four weeks.
List on 03.08.2018.
Copy 'dasti'."
7 In compliance to the order passed by this Court on 6.7.2018, the Court Commissioners submitted their report in a sealed cover and after opening it in the open Court, copy thereof was directed to be supplied to the contesting parties.
8 Evidently, none of the parties have filed objections to the report of the Court Commissioners.
9 Now, adverting to the report of the Commissioners, it would be noticed that the Commissioners firstly identified the suit land with the consent of the parties and their neighbours.
The statements of the parties that were got recorded under their signatures have been annexed as Annexure A with the report.
Thereafter, the parties agreed and also identified the trees in ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...10...
question, which were numbered and further identified along with Khasra numbers upon which the same were standing. The .
tatima of the suit land has been annexed as Annexure B. The total number of trees that were identified were 12. The Court Commissioners thereafter took the photographs of such trees, copies whereof have been annexed as Annexure C2 to C12. The Court Commissioners with the help of Mr. Gaurav, Forest Guard, measured the girth of each tree and with the help of Mr. Nagender Guleria, acting DFO, species and categories/classes were identified, the details of which are as follow: Sr. No. Species Category/Clas s 1 Khirk IV 2 Mango IA 3 Khirk IV 4 Mango V 5 Kachnar IV 6 Tunni III 7 Khirk (Dry) III 8 Khirk IV 9 Khirk IIA 10 Tunni (Dry) III 11 Tunni IIB 12 Jamun III ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...11...
10 While identifying the trees, a rough sketch map was also prepared , which is annexed as Annexure D with the report.
.
The relevant portion of the report reads thus:
(i) In so far as the allegations of recent felling/lopping of trees are concerned, the nonapplicant/respondent identified tree mentioned and photographs as C11. No other tree(s) was/were identified/brought to the notice of the undersigned Commissioners. In other words, no spot was identified where any tree was felled. The only allegation was of lopping of tree mentioned in Annexure C
11. A visual inspection of the aforesaid tree,it cannot be said that any lopping has been done in the recent past. No lopping of the aforesaid tree has been found. The aforesaid fact was also vetoed by the acting DFO and others, who remained present. Secondly, in so far as the report regarding the trees/branches which are required to be removed/cut/lopped, the report is as under based on visual inspection, category/class and status which was suggested by the acting DFO and Range Officer present on the spot:
(a) Tree number1(one) was identified as Khirk and found to be dangerously leaning towards the adjacent house. Since the species of Khirk is soft wood, it is vulnerable to break in heavy winds/storm. It is, therefore, recommended to be removed.
(b) Tree number2 (two) was a mango tree and the same has been found to be healthy. However, its branches covered the house of the neighbour and therefore, lopping of three branches is recommended.::: Downloaded on - 30/08/2018 21:42:13 :::HCHP
...12...
(c) Tree numbers3 to 7 (three to seven) are of species, i.e. Khirk, Mango, Kachnar, Tunni and Khirk, respectively, and the same were found to have lost their base, i.e. roots .
were exposed. Therefore,the strength of these trees were lost. It is recommended that all these five trees, except the mango tree, be felled as these trees any time during inclement weather can fall on the neigbour's house.
(d) Tree numbers8 and 9 (eight and nine) were Khirk trees and found to be dangerously towards neighbour's house and by the nature of the species are liable to be snapped in high winds and liable to cause damage to life and property. Therefore, both these trees are recommended for felling.
(e) Tree number10(ten) was found to be Tunni tree and dry standing. Therefore, it is recommended for felling.
(f) Tree number11 (eleven) was Tunni tree, which also was the subject matter of lopping. This tree was identified by the acting DFO and Ranger Officer to have matured and attained full growth. It has been suggested that henceforth, this tree will deteriorate and in another seven years approximately would become dangerous as the same is leaning towards Smt. Tripta Devi's house. In light of this, the DFO and Range Officer suggested at the moment, if the tree fell, it will fetch good commercial timber value, which may not be found after seven years, wherein at that moment not only the tree would be dangerous, but would have also lost is optimum value and, therefore,the Commission this decision to the wisdom of this Hon'ble Court.
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(g) Tree number12 (twelve), Jamun tree was found to be health and strong. However, because of width, minor lopping of those branches, which cover the cowshed, is .
recommended."
11 Apart from the aforesaid report, the Court Commissioners have also brought to the notice of this Court that the area in question as informed by the DFO falls under the Municipal Council, Sujanpur and, therefore, it is the Deputy Commissioner, Hamirpur, who is to grant the permission to fell/lop the aforementioned trees in accordance with the procedure.
12 It is evident from the report of the Court Commissioners that the defence taken by the respondents was not only false, but manipulated one as it is found that not only seven trees as alleged by the applicants, but rather 12 trees were found standing on the suit land, which are required to be lopped/cut. That apart, it has also come on record that the applicants had not lopped or cut even a single tree, therefore, while accepting the report of the Court Commissioners, the respondents are directed to pay half of the Court Commissioners' fee i.e. Rs.45,000/ to the applicants by 15.9.2018 and in addition thereto, the respondents are also called upon to show cause as to why proceedings under the Contempt of Courts Act ::: Downloaded on - 30/08/2018 21:42:13 :::HCHP ...14...
be not initiated against them for deliberately and wilfully misleading this Court and for having filed an affidavit which was .
false to their very knowledge.
13 The Deputy Commissioner, Hamirpur, is directed to issue appropriate orders of lopping/cutting down the trees as mentioned above and report compliance by next date of hearing.
14 The application stands disposed of in the aforesaid terms.
RSA No. 73/2015 r to
List on 17.9.2018.
August 30, 2018 (Tarlok Singh Chauhan)
(pankaj) Judge
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