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Rajasthan High Court - Jodhpur

Banta Singh & Ors vs State & Ors on 25 July, 2012

Author: Sandeep Mehta

Bench: Sandeep Mehta

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   IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR

                        JUDGMENT

S.B. CRIMINAL MISC. PETITION NO.1224/2010 Banta Singh & Ors. Vs. State of Rajasthan & Ors.

Date of judgment : 25.7.2012 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. R.S.Gill, for the petitioners.

Mr. A.R.Nikub, P.P. Dr. R.K.Sinha, Mr.Trilok Joshi, for the respondents.

<><><> The instant misc. petition has been filed by the petitioners challenging the order dated 6.8.2010 passed by the learned Additional Sessions Judge, Raisinghnagar in Cr.Revision No.21/10, whereby the learned revisional Court has affirmed the order dated 3.6.2009 passed by the learned SDM, Raisinghnagar directing removal of a Neem tree located at the Ward No.18, Raisinghnagar holding the same to be public nuisance.

Succinctly stated the facts of the case are that the respondents No.4 to 8 (hereinafter referred to as 'the applicants') approached the SDM, Raisinghnagar by way of an application under Section 133 Cr.P.C. alleging therein that they had a warehouse situated at the Ward No.18 and the approach road to the warehouse was 12 ft. wide. It was mentioned in the application that on the centre of the said approach road, there was a 70 years old Neem tree, which was standing right in the middle having a diameter of 8.05 ft. It 2/10 was further mentioned that the branches of the Neem tree were growing very low and thus, the traffic was being obstructed by the said Neem tree. The passage of the trucks, which were required to be taken to the warehouse of the applicants and the other vehicles was obstructed by the tree and damage was thereby being caused to the houses of the nearby residents. It was also mentioned that the branches of the tree were huge and had become weak and resultantly, there was a possibility of them falling down and causing damage to the life and property. It was further mentioned that the tree used to shed Nimbolis, leaves and flowers, which caused great deal of pollution and also gave invitation to various illnesses. It was also mentioned that cattle used to sit under the tree and flies and mosquitoes were also breeding increasing the risk of serious diseases like Dengue and Malaria etc. It was also mentioned that the bees had formed hives on the tree, which was also causing problem to people. It was prayed in the application that the Neem tree, which was causing a public nuisance should be removed. The Chairman and the Executive Officer of the Municipal Board, Raisinghnagar were impleaded as party respondents to the application.

The respondent Municipal Board gave a reply contesting the application filed by the applicants and submitted that the averments made in the application were absolutely false. It was submitted that no accident had ever occurred because of the tree. It was submitted that the tree was helpful in purifying the atmosphere and that the people of the locality were strongly united against the cutting of the tree and that is why the tree was not being cut. It was submitted that the tree was responsible for removing the harmful carbon 3/10 dioxide from the polluted atmosphere. It was further submitted that tenders had been invited for cutting the tree on earlier occasions also, but whenever the concerned contractor tried to cut the tree, there was a strong opposition from the actual residents of the locality and therefore, the tree could not be removed. It was also mentioned that the people of the locality had strong emotional sentiments towards the tree and were seriously opposing its removal and therefore, the tree would not be removed by the Municipal Board. A copy of the proceedings of the Municipality's meetings held in the year 2006 have been annexed to the reply, which read that when road had been laid on the lane going towards the warehouse the persons of the locality strongly opposed the removal of the tree. It was also mentioned that people had made encroachments on both sides of the road and that is why the road was narrowed rather than because of the Neem tree. Despite these facts an open auction was called for cutting the tree but nobody came to offer services to cut the tree. The proceedings also reveal that the only obstruction, which is being faced, is by the owners of the warehouse, whose trucks are required to go to warehouse. The proceedings of the tender were challenged by the two persons of the locality viz. Amarnath and Harvinder Singh by filing an application under Order 39 Rule 2 r/w Section 151 CPC and the Civil Court issued notice to one Jagdish Mohta, whose house is in front of the tree. Sh.Jagdish Mohta appeared in the Court and submitted that he did not have any problem with the tree. The Civil Court also held that the lane was 30 ft. wide but because of the encroachments made by the people, the lane was narrowed. The Municipality, which was the respondent in the suit submitted a reply that if the encroachments are removed 4/10 from the lane, then there was no requirement of cutting the tree. Accordingly, the application filed by Amarnath and Harvinder Singh was rejected. The Court held that Amarnath and Harvinder Singh were trying to take the shield of the tree for saving their encroachments.

Now coming to the proceedings under Section 133 Cr.P.C. In the said proceedings also, the persons of the locality (the petitioners herein) appeared and filed an objection that the respondents were not the actual residents of the lane, in which the tree was growing. It was also submitted that they were also entitled to be heard before any order is passed for removal of the tree. The objection of the residents of the locality was that the Ward No.18 was a residential area and that the warehouse was having another approach road, the land whereof was sold out by the Municipality by cutting the plots thereon. It was thus, prayed that the Neem tree should not be directed to be removed.

Be that as it may, the learned Executive Magistrate by his order dated 3.6.2009 directed that the Neem tree was very old and there was a likelihood of the Neem tree falling down and therefore, the same should be removed as it was causing a public nuisance. The petitioners, who are the residents of the locality challenged the order passed by the SDM by filing a revision in the court of the learned Additional Sessions Judge, Raisinghnagar and the learned revisional court also affirmed the order passed by the learned SDM and rejected the revision filed by the petitioners. Now the petitioners have approached this Court by way of instant misc. petition seeking quashing of the orders passed by the courts below and seeking a direction that the tree should not be removed.

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Shri R.S.Gill learned counsel for the petitioners submits that the application itself, which was filed by the respondents in the court below was malafide and did not disclose any public nuisance whatsoever. It is submitted that the respondents No.4 to 8 were not even the residents of the locality and therefore, they had no business to pray for removal of the Neem tree. He has submitted that no evidence was taken by the learned SDM before directing removal of the tree. He further submits that apart from the bare facts in the application filed by the respondents, there was no other material before the learned SDM by way of the affidavits or evidence of the actual residents of the locality that the Neem tree was causing a public nuisance. He therefore, prays that the orders impugned amount to an abuse of the process of the Court and deserve to be quashed.

He further submits that the Neem tree is standing firm on the ground for the last 70 years as such, the same has aesthetic, emotional and sentimental value apart from being an ecological protector for the residents of the locality. He submits that the very application filed by the respondents was malafide because they were not even the residents of the locality, where the tree is standing. He submits that the grounds, which have been taken by the respondents in their application are absolutely fictitious and conjectural. A Neem tree rather than polluting the area and the atmosphere is its protector. He submits that the lane has been narrowed not by the tree but by the people, who have made encroachments and thus, the endeavour of the learned SDM should have been to direct removal of the encroachments rather than directing the removal of the tree. He further submits that the tree was already in existence from before and the warehouse was 6/10 constructed later on, therefore, the claim of the applicants i.e. the respondents No.4 to 8 that the tree was causing public nuisance is absolutely false as rather than causing the public nuisance, the tree is savior for the members of the locality as the same provides fresh air, shade and also cleans up the area by soaking up the carbon dioxide while releasing oxygen and also cools the atmosphere.

Shri Trilok Joshi learned counsel for the respondents No.4 to 8 and Dr.R.K.Sinha learned counsel for the respondents No.2 to 3 the Chairman Municipal Board Raisinghnagar and Executive Officer, Municipal Board, Raisinghnagar have opposed the arguments advanced on behalf of the petitioners and submit that the Neem tree in question was causing an obstruction on the road and as such, was rightly directed to be removed as it was causing public nuisance. It is submitted that the warehouse of the respondents is situated in the lane of Ward No.18 and the only approach road was obstructed by the tree standing in the middle and thus, the tree was rightly directed to be removed as causing a public nuisance.

Having considered the arguments advanced at the bar and after going through the orders impugned as well as the evidence, it is evident that the application for removal of alleged public nuisance was filed only on behalf of the persons having interest in the warehouse. The specific prayer which was made in the application under Section 133 Cr.P.C. before the learned SDM that the Neem tree was causing an obstruction on the road leading to the warehouse. The whole idea behind the application was to somehow or the other, open up the lane for approaching the warehouse so that trucks could be taken inside. A specific reply to the application 7/10 with an objection was filed by the residents of the locality stating therein that the respondents No.4 to 8 are not the residents of the Ward, where the Neem tree was standing. The tender proceedings of the Municipal Board, Raisinghnagar disclose that the application which was filed to it for removing the Neem tree was filed by the New Janta Truck Union and the specific prayer in the application was that the tree was causing an obstruction on the approach road to the warehouse, where the trucks of the union are required to go.

In the proceedings before the SDM neither any evidence was recorded nor any affidavit of the persons, who were living in the lane was taken and mechanically, the SDM proceeded to accept the prayer made by the applicants, who had filed the application under Section 133 Cr.P.C.

The residents of the locality, who are the petitioners herein commendably took up the torch of saving the tree in their hands and challenged the SDM's order in the revisional court and when the learned revisional court also proceeded to uphold the order passed by the SDM. The petitioners herein have approached this Court by way of the instant misc. petition seeking a direction that the Neem tree be protected and the order passed by the learned SDM directing removal of the tree be quashed.

This Court has to consider the aspect, as to whether a tree, which is standing firm from 70 years can cause any public nuisance or it is the applicants, whose warehouse was built much later, are causing the nuisance to the tree.

The District Jodhpur is home to village Khejarla Kalan, where in the Chipko Movement numerous villagers gave up their lives for saving the trees and here we are with a case in which, the unscrupulous applicants, whose business is 8/10 being affected, are trying to have a priceless 70 years old majestic Neem tree removed by resorting a remedy, which is not even available to them. Trees are the lungs of the earth and by indiscriminate cutting of the trees and the forests, a drastic effect is being made on the environment and ecology, and is giving rise to the menace of global warming and ultimately causing a great adverse affect on the very quality of life of all the living beings.

From the admitted facts of the case it is apparent that nuisance, which was sought to be removed by way of the application was simply based on the grievance that the approach road to the warehouse was being blocked by the tree. Obviously the obstruction could not have been said to be a public nuisance because the warehouse was built later, whereas the tree was in existence long before. That apart, nuisance to the owners of the warehouse cannot be perceived to be a public nuisance whatsoever by any stretch of imagination. As has already been discussed above, there is no scientific material or other plausible evidence on the record to hold that the tree was in a dilapidated condition so that it could fall down and pose a threat to the lives of the people. That possibility could have been only the reason for directing the removal of the tree. The SDM did not make any enquiry or record any evidence for ascertaining the facts mentioned in the application and mechanically proceeded to accept the prayer for removal made by the applicants. As no evidence to show that the tree was posing a risk to the lives or property, directing the removal of a 70 years old tree, which is the protector of the environment cannot but be said to be but traversity of justice. The application filed by the respondents No.4 to 8 was thus, malicious and was intended to cause a 9/10 direct blow to the environment. The effort of the members of the locality, who are petitioners herein, in contesting the matter before the SDM and challenging his order in revision and by way of the instant misc. petition before this Court, is commendable.

Resultantly, the misc. petition deserves to be allowed and is hereby allowed and the order dated 3.6.2009 passed by the SDM, Raisinghnagar directing the removal of the tree is hereby quashed. At the same time, the applicants cannot be permitted to go scott free for filing such a frivolous application. Appropriate cost has to be imposed on them. The learned counsel for the respondents No.4 to 8 agrees that they are ready to plant and nurture sufficient number of trees as cost.

Accordingly, whilst allowing the misc. petition, the respondents No.4 to 8 are directed to plant 200 Neem trees at appropriate places at Raisinghnagar. The places shall be located and identified by the Officers of the Municipal Board, Raisinghnagar within two weeks. The trees thereafter shall be planted under the supervision of the Executive Officer, Municipal Board, Raisinghnagar in a scientific fashion by making provision of trees guards, manure etc. the expenses whereof shall be borne by the applicants. This direction shall be carried out within a period of one month thereafter. If the trees are not planted within the period specified above, the Municipality shall take steps forthwith for closing the warehouse of the applicants. The Municipal Board is also hereby directed to take lawful steps to remove the encroachments in the lane so that any public nuisance, which is actually being caused can be dealt with.

The compliance report of the directions issued 10/10 above shall be submitted to this Court within a period of eight weeks from today.

List on 27.9.2012 for receiving the compliance report. Copy of this order be communicated to the SDM, Raisinghnagar and the Executive Officer, Municipal Board, Raisinghnagar forthwith.

(SANDEEP MEHTA), J.

/tarun/