The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.27013 of 2022 Sri Subash Chandra Nath …. Petitioner Mr. G.K. Mohanty, Advocate -versus- Order No. 11. The Commissioner, Cuttack Municipal Corporation (CMC) and others …. Opposite Parties
Legal Reasoning
Mr. S.P. Panda, A.G.A. Mr. S.P. Mishra, Senior Advocate for O.P. No.7 Mr. D.Nayak, Advocate for O.P. Nos.1, 2, 5 & 6 CORAM: JUSTICE B. P. ROUTRAY
Decision
ORDER 04.09.2024 1. Heard Mr. G.K. Mohany, learned counsel for the Petitioner, Mr. S.P. Panda, learned Additional Government Advocate for the State-Opposite Parties 3 & 4, Mr. S.P. Mishra, learned Senior Advocate for O.P. No.7 and Mr. D. Nayak, learned counsel for Opposite Parties 1, 2, 5 & 6-Cuttack Municipal Corporation. 2. There is inter se dispute between the Petitioner (Sri Subash Chandra Nath) and Opposite Party No.7 (Pitambar Patra) regarding cutting of trees within the boundary of the Petitioner allegedly posing danger to the house of Opposite Party No.7 (the neighbour). 3. There is a common boundary between Opposite Party No.7 and the Petitioner and it is alleged by Opposite Party No.7 against the Petitioner that, some trees like Neem Tree, Coconut Tree and Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Sep-2024 14:36:41 Page 1 of 5 other fruit bearing trees grown in the compound of the Petitioner are apprehending danger to the existence of the compound wall and building of Opposite Party No.7 since the roots and branches are overlapping to his premises. In this regard, complaint was made before the municipal authorities and ultimately the order under Annexure-7 has been passed by the Additional Commissioner, Cuttack Municipal Corporation directing the Petitioner to cut down the Neem and Coconut trees. This order dated 5.9.2022 under Annexure-7 and the prayer for review as rejected under Annexure-8, have been challenged in the present writ petition. 4. During pendency of the writ petition, this Court in a Coordinate Bench has directed in order dated 28.10.2022 for spot verification by an Advocate Commissioner and to submit the report upon visiting the spot. The Advocate Commissioner has submitted his report dated 9.11.2022, placed at Flag ‘C’. The observation found by the Advocate Commissioner is as follows:- the spot and “1. On verification of the photographs/videos taken involving the Neem tree which appears to be thin, trimmed, and not as dense as one is normally associated with a Neem tree, I humbly submit that a little of portion of the branches (soft branches) at the top overlaps the common boundary wall as of now. 2. So for as the coconut trees are concerned, the trunks are almost straight and vertical as those could be, but a little part of the inflorescence including the common boundary wall at the top. leaves (bahunga) overlap the Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Sep-2024 14:36:41 Page 2 of 5 3. So far as the other fruit bearing trees are concerned, some soft branches of those appear to be overlapping the common boundary wall. In view of the above positioning of the trees as aforestated on the compound of the petitioner, I humbly submit my report with a conclusion that inconvenience might be causing to the Opp. Party No.7 to some extent in his day to day life because of overlapping in the manner as stated in the preceding findings/paragraph no.1 to 3.” 5. It needs to be mentioned here that, prior to passing order under Annexure-7, a technical report by a joint verification of different technical persons was prepared, which is appended at Annexure-6. In the technical team, the Assistant Director of Horticulture, Cuttack, Assistant Conservator of Forest, City Forest Division, Bhubaneswar, Deputy Commissioner (Enforcement), Cuttack Municipal Corporation and City Engineer, Cuttack Municipal Corporation were the members. Upon spot verification, they have submitted their report dated 21.07.2022. The extract of said report is as follows:- “A common compound wall has been constructed in between the Plot No.310/1634, Khata No.861/102 (Subash Chandra Nath) and Plot No.310/1626, Khata No.861/92 (Pitambar Patra), Unit No.32, Madhupatna, Cuttack. The above mentioned six nos. trees are existing on the plot of Sri Subash Chandra Nath, Unit-32, Madhupatna and are about 1’-6” (45 Cm.) to 3’-6” (105 Cm.) away from the common compound wall. Those trees should be prunned in timely intervals by the owner, so that no problem will be caused to the petitioner. In is further this connection, mentioned here that the fibrous root of Coconut trees do not penetrate deep into the ground and cannot damage the compound wall and building. it Page 3 of 5 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Sep-2024 14:36:41 As regards to Mango and Sapeta Trees, those are hybrid and dwarf variety, whose root system are not so strong, hence cannot penetrate deep into the ground either horizontally or vertically and may not cause any damage to the compound wall as well as to the building. But, root system of Neem tree may cause damage in future, so, owner of the land may be asked to fell down the tree, if required in future.” 6. Mr. S.P. Mishra, learned Senior Advocate for the Opposite Party No.7 submits that, when the technical report speaks about penetration of root of Neem tree may cause damage in future, now after passing of two years, it is found that the roots of Neem tree are penetrating into the compound wall as well as to the foundation of O.P.7’s building. 7. A comparative study of the technical committee report dated 21.07.2022 and Advocate Commissioner report dated 9.11.2022 almost speaks the same thing that except the roots of Neem tree, the other existing trees are not posing that much danger to the existence of building of Opposite Party No.7. 8. In such circumstances and keeping both the reports in view, the direction in the impugned order to cut down the Neem & Coconut tree is found unjustified. This Court while setting aside the impugned orders under Annexure-7 and 8, directs the Petitioner at the same time, to cut the roots of the Neem tree touching the boundary wall from the side of the Petitioner immediately, preferably within a period of fifteen days from today and further to take steps for regular pruning of other trees Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Sep-2024 14:36:41 Page 4 of 5 including the Neem trees so that their branches would not overlap to the compound of Opposite Party No.7. 9. With the aforesaid observation, the writ petition is disposed of. Judge ( B.P. Routray) B.K. Barik Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Sep-2024 14:36:41 Page 5 of 5