D.B. Lal, J.
1. This is a reference made to High Court under Section 438 of the Criminal Procedure Code and arises out of the order made in revision by the learned Additional Sessions Judge, Dharamsala, in a case under Section 133, Criminal Procedure Code instituted before the S. D. M. Palampur as a result to a complaint submitted by Jogeshwar Ram for a mango tree which is standing near his house and of which the branches extend upto his roof and is likely to endanger the security of his house in case it falls, clue to the action of wind or rough weather. The complaint of Jogeshwar Ram was that the tree belonged to Hira Lai and is at a distance of about 10 to 12 yards away from his house. Some two years ago a branch of this tree fell and damaged the roof of the complainant. According to him, the roots of the tree have got exposed and it is likely to fall any time on his house and thereby cause damage to his life and property. The S. D. M. Palampur, after receiving the complaint, got the enquiry made through the Thesildar Palampur and his report indicated that the tree was situate at a close proximity of the house of the complainant and there was apprehension of danger from the tree to the complainant in case it falls over his house. Accordingly the learned Magistrate issued a conditional order under Section 133, Criminal Procedure Code, against Hira Lai so that, either he removes the tree or shows a cause why the same should not be removed.
2. Hira Lal appeared before the learned Magistrate and showed cause against removal of the tree. Both the parties examined several witnesses, Jogeshwar Ram produced four witnesses: Capt. Rikhi Ram (A. W. 1), Dhani Ram (A. W. 2), Nika Ram (A. W. 3) and Gian Chand (A. W. 4). Besides them, he gave his own statement. The opposite party Hira Lai gave his own statement and produced one witness Piyar Chand (R. W. 1). The learned Magistrate believed the evidence produced by Jogeshwar Ram and held that the tree was an unlawful nuisance and should be removed from the spot. Accordingly he made his conditional order absolute for the removal of such tree.
3. Hira Lal came in revision before the learned Additional Sessions Judge, Dha-ramshala, and succeeded in that Court. The learned Sessions Judge held, that the conclusion is irresistible after a perusal of evidence that the tree, if at all, constitutes a private nuisance and not a public nuisance. According to the learned Sessions Judge, proceeding under Section 133, Criminal Procedure Code cannot be instituted in relation to a private nuisance and hence, according to him, the complaint was misconceived and the learned Magistrate could neither make the preliminary order nor could make it absolute under that section. Hence the learned Sessions Judge has recommended for the quashing of the order of the learned Magistrate who had made his conditional order absolute.
4. The reference order is obviously contested by Jogeshwar Ram and supported by Hira Lai. The learned Counsel for Jogeshwar Ram led me through the entire evidence. None of the witnesses has stated that any other member of the public, besides Jogeshwar Ram, is likely to be injured or his property damaged, as a result to the falling of the tree. It is no doubt admitted that the tree stands within the village 'abadi'. From this, it cannot be inferred that the tree would create public nuisance, until it is established that any other person besides Jogeshwar Ram or his family members, is likely to be affected by the falling of the tree, Rather the evidence is that it is Jogeshwar Ram alone whose house would be affected by its falling and some two years ago the roof of his house got damaged by the falling of a branch from the tree. Therefore, as the evidence indicates, the tree is a nuisance for Jogeshwar Ram and his family members, and not for anybody else in the vicinity.
5. The complainant's case for unlawful nuisance could only be covered under Section 133, Criminal Procedure Code, provided he succeeded in proving that the unlawful nuisance alleged by him is required to be removed from any public place. Such a removal from any public place is to be made only when the unlawful nuisance affects the public at large of such place. It is difficult to understand how an unlawful nuisance which is private in character can be stated to be capable of being removed from any public place within the meaning of Section 133. In order to invoke this section, the nuisance has got to be public nuisance and then only it can be stated to affect the members of public and hence can be removed from the public place. The phrase 'public nuisance' has been defined in Section 268 of the I. P. Code and this definition can very well be imported for the purposes of Section 133 of the Criminal Procedure Code. The definition of 'public nuisance' in Section 268 runs in the following terms:
Public nuisance: A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage.
6. It is, therefore, manifest that in order to constitute a public nuisance, the injury, danger or annoyance must be caused to the public, or to the people in the vicinity, or to persons who may have occasion to exercise any public right. It is not indicated by the evidence produced in the instant case that people of any of these three categories are affected by the falling of the tree. It is nowhere stated that any other member of the public is affected, or any injury, danger or annoyance is caused to him. Similarly it is not proved that any person residing in the vicinity is likely to be affected by the falling of the tree. It can either not be held, that any person exercising a public right is affected by the falling of the tree. Some evidence could be adduced to prove that any person belonging to these categories was likely to be affected by the falling of the tree. Such evidence could not be procured. Rather the evidence indicates that only Jogeshwar Ram and the members of his family, if any residing in that house, are affected by the falling of the tree.
7. As defined in Section 12 of the I. P. Code, the word 'public' includes any class of the public or any community, but that class must be numerically sufficient to be designated 'the public'. The word 'community' cannot be taken to mean the residents of a particular house. Community means something wider than that. It means the public at large or the residents of the entire locality. In support of this proposition, reliance can be placed upon two cases of Calcutta High Court: Jatindra Nath v. Manindra Nath : AIR1950Cal330 and Dwarika Prosad v. Dr. B. K. Roy Choudhury : AIR1950Cal349 . There can be no common injury to the public where there is no public or persons sufficiently large to feel the danger or annoyance. If a particular individual or his family is only affected, the nuisance cannot be considered to be a public nuisance and hence its removal from any public place cannot be ordered under Section 133.
8. It is also evident that the complaint regarding the tree was made by Jogeshwar Ram in the year 1967 and uptill now when a period of about six years has elapsed, the tree has not fallen and no damage has been caused to the life and property of Jogeshwar Ram. Apparently, therefore, there is no genuine urgency for removal of the tree. The nuisance can even be considered to be long standing. Proceedings under Section 133 are taken in cases of emergency where the public is put to great inconvenience and suffers irreparable injury if the encroachment or nuisance is not removed at once by adopting the summary procedure contained in Section 133 and the aggrieved parties are saved from the inconvenience of filing a civil suit. Therefore, in a case of nuisance which is in existence for a long period without any change in the circumstances, the removal of such nuisance cannot be said to be urgent and the remedy must be sought in civil courts. In my opinion, therefore, Section 133 is not meant for such a situation and if Jogeshwar Ram has any grievance, he can file proceedings before a civil court. Section 133 cannot be invoked in his favour and the proceeding can be dropped merely on this ground. In support of this proposition, reliance can be placed on Asharfi Lai v. The State : AIR1965All215 .
9. The learned Counsel for Hira Lai argued on the basis of (1966) 68 Pun LR 490, that the revision petition was not maintainable before the learned Sessions Judge in view of the provisions contained in the Punjab Separation of Judicial and Executive Functions Act, 1964. But the case relied upon by the learned Counsel is repealed by a Division Bench of the same High Court in Jaswant Singh v. Smt. Pritam Kaur . Therefore, there can be no exception to this that the revision petition was maintainable before the learned Additional Sessions Judge, Dharamsala.
10. In this view of the matter, I am firm in my opinion that the learned Additional Sessions Judge was right in quashing the proceedings under Sectiorr 133, Criminal Procedure Code, and I accept his recommendation under Section 438 Criminal Procedure Code, and direct that the order of the learned S. D. M., Palampur dated 9th June, 1971 be set aside.