T.K. Tukol, J.
1. The petitioner has been convicted under Section 268 of the Cantonments Act (II of 1924) for failure to comply with the notice issued by the Cantonment Board, Belgaum, calling upon him to remove the trees according to the Resolution passed on 8-8-1962 under Section 195 of the said Act. The main grievance of the petitioner is that he was not guilty of any offence and that the trees referred to by the Board had not been overhanging the property of neighbour.
2. The short question that arises for my consideration in this revision petition is, whether the Resolution passed by the Cantonment Board under Section 195 of the Cantonment Act (which is hereinafter called the Act) is legal and whether the petitioner's failure to comply with it be comes punishable under 3. 268 of the Act.
3. In order to appreciate the legal position arising for determination in this revision petition, it is necessary to read Section 193 at this stage, It reads:
195, (1) where, in the opinion of Board, the felling of any tree of mature growth standing in a private enclosure in the cantonment is necessary for any reason., the Board may, by notice in writing, require the owner, lessee or occupier of the land to fell the tree within in such time as may be specified in the notice.
(2) A Board may-
(a) Cause to be lopped or trimmed any tree standing on land in the cantonment which belongs to the Government ; or
(b) By public notice require all owners, lessees or occupiers of land in the cantonment, or by notice in writing require the owner, lessee or occupier of any such land, to lop or trim, in such manner as may be specified in the notice, all or any trees standing on such land or to remove any dead trees from such land.
A plain reading of this section would indicate that the section confers two kinds of powers on & Cantonment Board ; (1) It has got the power under Sub-section (1) to call upon the owner, lessee or occupier of any land to fell a tree within the specified time if the Board thinks that the felling of any tree of mature growth standing on private properties is necessary for any reason ; (2) It can either lop or trim any tree standing on the land of the Government, or require (to confine ourselves only to the point at issue), a private owner, occupier or a lessee to lop or trim any tree standing on such land or to remove any dead tree from his land. In the present case, we have nothing to do with the removal of any dead tree. What the Cantonment Board has required the petitioner to do is to remove the trees situated in his compound.
4. In order to see whether this action of the Board is within its powers or not, we have to examine the Resolution passed by the Standing Committee and approved by the Cantonment Board on 8-8-1962. The relevant portion of Ex. 15 reads thus:
'20. To consider issue of a notice to the owner of B. No. 3 under Section 195 of the Cantonments Act, 1924 to remove, five Madi trees, one Snap nut tree and one Bori tree standing in the compound of his bungalow No. 3 as the branches of the said trees overhang the roof of the buildings in the adjoining bungalow No. 28 and are a source of constant damage thereto.'
'20. Recommended that notice be issued to the owner of the bungalow under Section 195 of Cantonments Act, 1924 to remove the said trees in the compound of the bungalow within 15 days, failing which action be taken against him under Section 268 of the said Act.
It is manifest from the first paragraph of this Resolution that the only reason for calling upon the petitioner to remove the trees in question is that 'the branches of the said trees overhang the roof of the buildings in the adjoining bungalow No. 28 and/or a source of constant damage thereto.' If the reason as stated in this Resolution and nuisance complained of are taken into account the proper action which the cantonment Boards should have taken was to call upon the petitioner to lop off or trim the branches of the trees which overhang the property of the owner of Bangalow No. as. The only circumstances under which the Board can call upon a private owner under Section 195 (1) to cut the trees are : (1) the tree should be of mature growth and (2) the Cantonment Board should think it necessary for any reason to fell it down. 'For any reason' would necessarily mean a good reason which a man of ordinary commensense would approve of as sound reason requiring the cutting or removing of a tree; as for example, where a tree is very old and is likely to fall down resulting in unexpected damage either to passer-by or to a neighbouring owner. In the present case, the resolution of the Board does not state that the trees in question are of mature growth. The reason given by them for the removal of the trees is that the branches overhang the property of another persons.
5. Considering the scope of Section 195 and the wording of Resolution No. 20 passed by the Board. I am of the opinion that the Board has exceeded its powers in calling upon the petitioner to fell down and cut off all the trees. In other-words, the Resolution which the petitioner is called upon to obey is a Resolution without jurisdiction and its non-obedience cannot be penalised under Section 268 of the Act. It is, however, open to the Cantonment Board to take such action as it finds necessary if the condition of the trees attracts the application of either Sub-section (1) or Sub-section (2) of Section 195.
6. It may be mentioned that the only witness whom the prosecution examined is the Inspector. He does not say that the trees overhang the property of the neighbouring owner nor does he say that the trees are so old that they are a source of danger to the safety of neighbours or of persons residing in the vicinity. Considered from any point of view it is difficult to uphold the validity of the Resolution.
7. The learned Advocate appearing for the Cantonment Board submitted that the Resolution cannot be challenged in the criminal proceeding and that it was open to the petitioner to approach the High Court by filing a petition for an appropriate writ. I find very little substance in this contention. When a person is prosecuted for failure to comply with the Resolution passed by a competent body it is always open to him to show that the Resolution is not legal or that it is in excess of the powers possessed by the body passing such Resolution. For that purpose, he need not approach the High Court by an independent proceeding. He cannot be held to be guilty of contravention of a Resolution unless it is established by the Prosecution that the Board was within its powers in passing the Resolution and calling upon the petitioner or the accused to( comply with the terms of the Resolution.
8. It was also argued by the learned advocate appearing for the Cantonment Board that the petitioner had not established any malice on the part of the Board. It is not necessary. The question of malice would arise for consideration when the Resolution is prima facie legal and is objected to by the aggrieved party not on the ground of want of jurisdiction or illegality in passing it but on the ground that the persons who passed the Resolution had been inspired by motives which were of a questionable character. Since the petitioner does not question the enforceable character of the Resolution on that account, I do not think it necessary to discuss that aspect of the question.
9. In the result, this petition is allowed. The order of conviction and sentence passed against the petitioner is set aside and he is acquitted. The fine if paid shall be refunded to him.