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Criminal Revision No. 9 of 1948, decided on 7th April 1948.

S. 133‑Tree standing or'" boundary of petitioner's 'tank and other party's house likely to fall and cause damage to wall and cook‑shed‑Whether public nuisance.

The tree on the bank of the tank which forms the common boundary of the petitioners tank and the opposite party house does not fall within the definition of public nuisance, nor can it be said that if it falls it is likely injury to persons living or carrying on business in the neighbourhood or passing by, merely because if it does fall, it is likely to cause damage to the opposite party's boundary wall and cook‑shed. In that event, of course, course, the opposite party would have his remedy otherwise, but the case does not call for an order under section 1.33 of the Code of Criminal Procedure.

M. H. Khondkar for Petitioner.

Mahendra Kumar Ghose, for Opposite Party.

In this case a Rule was issued on the District Magistrate of Rajshahi and on the Opposite Party, Manik‑ud‑Din Ahmed, to show cause why an order purporting to be made under section 133 of the Code of Criminal Procedure by Mr. D. N. Chakraborty, a Magistrate of the 1st Class, at Naogaon, on October 14th, 1947, should not be set aside.

The material facts are as follows:-----

The 3 petitioners, Kazi Azizur Rahman, Kazi Habibur Rahman and Kazi Amjad Hussain and their brother, Kazi Emdad Ali, nave in their joint possession a certain tank in Mousa Chakder. The eastern bank of the tank has been recorded as plot No. 434/140 of Mouza No. 340 Noagaon. To the immediate east of the bank of the tank is plot No. 435 of Mouza Noagoan on which the opposite ,party, Manik‑ud-Din Ahmed has .his house.

On 23rd April 1947, the opposite party filed a petition before the Sub‑divisional Magistrate of Noagaon in which he stated that a certain tamarind tree which was growing on the eastern bank of the tank at a distance of about 15 or 20, cubits to the west of the western compound wall of his house was likely to Fall down and .cause damage to his boundary wall and cook‑shed. He accordingly prayed for action to be taken under section 133 of the Code of Criminal Procedure. In the margin of the petition there is an order by the learned Magistrate observing that the place of occurrence was situated in the town and the Circle Officer was directed kindly to visit the spot and make a settlement of the dispute between the parties. This proving abortive, pro ceedings were drawn‑ up under section 133 of the Criminal Procedure Code in which the learned Magistrate ordered the petitioners to remove the tree in such a manner that it did not cause any damage or danger to the opposite party, otherwise the tree would be removed by other means. and the cost realised from the petitioners.

We would draw the attention of the learned Magistrate to' the forms which are to be found In Schedule 5 of the Code of Criminal Procedure and in future advise him to follow strictly the form prescribed for any order which he passes without adding to or subtracting from that form on his own initiative.

The petitioner is, thereafter, appeared before the Magistrate and showed cause against 'the order that was served upon them and once more an attempt was made to settle the matter amicably and time was taken for that purpose.

The amicable settlement proved abortive and the Magistrate proceeded with the hearing of the case. Witnesses were examined,, arguments were heard and thereafter, the Magistrate held a local inspection and drew up a memorandum in which he noted what he observed on the site. Thereafter the Magistrate, passed orders on October 14th, 1947, making the conditional order absolute and directing the petitioners to cut down the tree within ten days in such a way that it would not fall and damage the compound wall of the opposite party. Failing that, the Magistrate threatened to take action under section 188 of the Indian Penal Code and stated that if the order of the Court was, riot obeyed, the tree would be cut down at the expense of the second party‑petitioners.

Against the order the petitioners moved the Sessions Judge of Rajshahi and asked for the matter to be referred to this Court for an order setting aside the order of the Magistrate. The application before the Sessions judge was unsuccessful and the petitioners have now moved this Court and obtained a Rule as already stated.

As the record showed that attempt had been made to resolve the quarrel between the parties by amicable means and as there were indications in the record that the pasties might be willing to accommodate each other, after hearing the arguments submitted to as on either side, we postponed the delivery of judgment in order that the matter might be settled out of Cotta. This dope has, however, failed, and there is now nothing left but to deliver judgment.

The point that has been taken on behalf of the petitioners is that on the circumstances of this case it is impossible to hold That the tree which is said to be growing there for 40 years, standing on the bank of the tank, constitutes a public nuisance such as would fall within the purview of Chapter X of the Code of Criminal Procedure. Chapter X deals with public nuisances and the first section in the Chapter is section 133. That section provides that when a District Magistrate, Sub‑divisional Magis trate or a Magistrate of the 1st Class, considers on receiving a police report, or other information, and on taking such evidence as any as he thinks fit, that a tree is in such a condition that it is likely to fall an, thereby cause injury to persons living or carrying on business the neighbourbood or passing by, the Magistrate shall make a conditional order, which, if he thinks is justified, he shall subsequently make absolute.

It is argued on behalf of the petitioners that the tree on the bank of the tank which forms the common boundary of the petitioners' tank and the opposite party's house to its east cannot constitute a public nuisance and it is not likely to fall or cause injury to any persons living or carrying on business in the neighbourhood or passing by. On the other hand, on behalf of the opposite party, it is urged that the words of section 133 are sufficiently wide to include a case of this nature and it is urged that the evidence shows that the tree in its present condition is likely, to fall and may possibly damage the boundary wall and cook‑shed of the opposite party.

We do not ourselves think that on the circumstances of this case we car hold that the tree falls within the definition of public nuisance, nor can we hold that if it fails it. is likely to cause injury to persons living or carrying on .business 'in the neighbbourhood or passing by, merely because if it toes fall, it is likely to cause damage to the opposite party's boundary wall and cook‑shed. In that event, of course, the opposite party would have his remedy otherwise, but we do not think that the case is one which calls for an order under section 133 of the Code o If Criminal 'procedure.

In the result then the Rule is made absolute and the order of the learned Magistrate of October, 14th, 1947, is set aside.

Rule made absolute.

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