Case Note & Summary
The petitioner, Shri Joaquim Milagres Joao Fernandes, a senior citizen, filed a Criminal Writ Petition before the High Court of Bombay at Goa challenging two orders: one dated 15/11/2010 passed by the Sub-Divisional Magistrate, Margao, and another dated 30/11/2015 passed by the Conservator of Forest and Appellate Authority, Panaji. These orders directed the cutting of a Savor tree (silk cotton tree) located on the petitioner's property. The respondent no.2, Shri Eraclio Fernandes, had complained that the silk cotton released from the tree's pods caused nuisance by sticking to ceiling fans, roofs, windows, and doors of nearby houses. The authorities below had relied on a report of the Range Forest Officer dated 30/10/2014, which stated that electric lines passing below the tree made it dangerous to life and property. However, the court found that the report did not indicate that the tree itself was in a ruinous or dangerous condition. The court examined Section 12-A of the Goa, Daman and Diu Preservation of Trees Act, 1984, which requires that the tree must be in a ruinous state, its branches ruinous, or it must be likely to fall and cause injury. Since none of these conditions were satisfied, the impugned orders were quashed. The court also addressed the nuisance issue by accepting the petitioner's oral undertaking to regularly harvest the pods before they burst, thereby preventing the release of silk cotton. The writ petition was allowed, and the rule was made absolute.
Headnote
A) Preservation of Trees - Section 12-A - Ruinous Condition - The power under Section 12-A of the Goa, Daman and Diu Preservation of Trees Act, 1984 can be exercised only if the tree is in a ruinous state or its branches are ruinous or it is likely to fall and cause injury. In this case, the tree was not in such condition; the danger arose from electric lines passing below, not from the tree itself. The orders for cutting were quashed. (Paras 3-5)
B) Nuisance - Silk Cotton - Alternative Remedy - The grievance of the respondent was that silk cotton from the tree caused nuisance by sticking to houses. The petitioner undertook to regularly harvest the pods before they burst. The court accepted this undertaking as a suitable alternative to cutting the tree. (Paras 4-5)
Issue of Consideration
Whether the orders for cutting a Savor tree under Section 12-A of the Goa, Daman and Diu Preservation of Trees Act, 1984 were valid when the tree was not in a ruinous or dangerous condition.
Final Decision
Writ petition allowed. Impugned orders dated 15/11/2010 and 30/11/2015 quashed and set aside. Petitioner's undertaking to regularly harvest pods before they burst accepted. Rule made absolute.
Law Points
- Section 12-A of the Goa
- Daman and Diu Preservation of Trees Act
- 1984 requires tree to be in ruinous state or likely to fall
- mere nuisance from silk cotton does not justify cutting
- undertaking to harvest pods accepted as alternative remedy.
Case Details
2016 LawText (BOM) (03) 191
Criminal Writ Petition No.6 of 2016
Mr. Baptista D'Cruz (for Petitioner), Mr. S. Redkar (for Respondent no.1 under Legal Aid Scheme), Mr. S. R. Rivankar (Public Prosecutor for State)
Shri Joaquim Milagres Joao Fernandes
State (represented by Public Prosecutor, Sub-Divisional Magistrate Margao, Conservator of Forest and Appellate Authority) and Shri Eraclio Fernandes
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Nature of Litigation
Criminal writ petition challenging orders for cutting a tree under the Goa, Daman and Diu Preservation of Trees Act, 1984.
Remedy Sought
Petitioner sought quashing of orders dated 15/11/2010 and 30/11/2015 directing cutting of a Savor tree.
Filing Reason
The orders were based on a report that did not show the tree was in a ruinous or dangerous condition; the tree was not likely to fall.
Previous Decisions
Sub-Divisional Magistrate, Margao passed order on 15/11/2010; Conservator of Forest and Appellate Authority passed order on 30/11/2015, both directing cutting of the tree.
Issues
Whether the conditions under Section 12-A of the Goa, Daman and Diu Preservation of Trees Act, 1984 were satisfied for ordering cutting of the Savor tree.
Whether the nuisance caused by silk cotton from the tree justified cutting, or whether an alternative remedy was available.
Submissions/Arguments
Petitioner argued that the tree was not in a ruinous or dangerous condition; the report only mentioned electric lines passing below.
Respondent no.2 complained that silk cotton from the tree caused nuisance to nearby houses.
Ratio Decidendi
The power under Section 12-A of the Goa, Daman and Diu Preservation of Trees Act, 1984 can be exercised only when the tree is in a ruinous state, its branches are ruinous, or it is likely to fall and cause injury. Mere nuisance from silk cotton or presence of electric lines below does not satisfy these conditions. An alternative remedy of harvesting pods can address the nuisance without cutting the tree.
Judgment Excerpts
The requirement of exercise of power under section 12-A of the Goa, Daman and Diu Preservation of Trees Act, 1984 is that the tree in question must be in a ruinous state or its branches should be in a ruinous state or the tree should be in such a condition that it is likely to fall and thereby cause injury to persons living or property in the vicinity.
The impugned orders dated 15/11/2010 and 30/11/2015, therefore, cannot be sustained in the eye of law and deserve to be quashed and set aside.
Procedural History
The Sub-Divisional Magistrate, Margao passed an order on 15/11/2010 directing cutting of the Savor tree. The petitioner appealed to the Conservator of Forest and Appellate Authority, who dismissed the appeal on 30/11/2015. The petitioner then filed Criminal Writ Petition No.6 of 2016 before the High Court of Bombay at Goa.
Acts & Sections
- Goa, Daman and Diu Preservation of Trees Act, 1984: 12-A
