Bom HC | Justice Naidu essays “requiem for a falling tree and a failing men” as he, “bound by law”, decides for the man and against the tree

Bombay High Court at Goa: While dismissing a writ petition under Article 227 in a dispute caused by “troubling trees”, Dama Seshadri Naidu, J., found himself bound by law that wants the spreading tree to move away from the man.

The petition arose out of a dispute between neighbours caused by the leaning of growing trees from the petitioner’s house to his neighbour’s compound. Justice Naidu noted the dispute in the following words:

Here, a couple of trees have asserted themselves and grown, as they should have, freely in the direction they liked. They have leaned, too, on to the neighbour’s compound. That has spelled trouble for them and litigation for their owners. For they faced axe, and their owner court proceedings.

The neighbour approached the statutory authorities complaining of the “trouble” caused by the trees.

Here, Justice Naidu observed that the causes people, at times, espouse in the name of constitutional remedies reveals the depths the adjudication has descended to. “In the name of a right to remedy, sometimes we trivialise”, he added. He then made a reference to an interview of Justice M.N. Venkatachaliah, former Chief Justice of India, given to “Outlook” (6-7-2015) and noted:

Not long ago did Shri Justice M.N. Venkatachaliah, the former Chief Justice of India, lamented about what we are doing in the name of constitutional adjudication: erecting our egos and prejudices into principles. …

The dispute between the petitioner and his neighbour reached the Conservator of Forests, an appellate authority under the Preservation of Trees Act, 1984. By the order of Conservator of Forests, both the parties agreed to share the cost of cutting the mango tree, and as regards the other coconut tree, the parties agreed to implement the directions of the Deputy Collector concerned. Now, aggrieved, the petitioner − owner of the trees − petitioned the High Court.

The dilemma of a Judge while deciding a cause on misplaced priorities of man can be best put in the words of Justice Naidu as he expressed while delivering the oral order: (*liberty to weave a verse out of Judge’s expression is taken)

A seed or a sapling believes it owns the earth, so it anchors itself with its roots deep into the ground.

It feels it owns the sky, so it tries to grow higher and higher, as if to touch the sky.

It also feels even the space between these two belongs to it. So it spreads, sways, and hangs from above, as it grows.

But it does not know man—almost an alien to planet earth—has invaded it, colonised it. As every coloniser does, he pounds, plunders and pillages it.

So man makes laws and the laws are human-centric. He commands the aborigines, the trees, to behave themselves. Poor trees, they do not know how?

So the axe falls, for the law is amoral—almost; for the law brooks no disobedience—always.

 Nature expects the man to move away from a spreading tree, but the law wants the tree to move away from the man.

And I am bound by law; though not a tree, I am not free. Therefore, I decide this case, decide it in the man’s favour, and against the tree.

So it is the requiem for a falling tree and a failing human.

In the ultimate analysis, Justice Naidu noted that impugned order passed by the Conservator of Forest was seemingly a consensual one, reflecting the will of the parties rather than the power of the court or authority. Besides, there was no reason to exercise the supervisory jurisdiction against an order passed by supposedly an expert in the field. Failing to spot perversity in the order impugned, the Court dismissed the writ petition. [Vithal Kamat Sambari v. State of Goa, 2019 SCC OnLine Bom 12709]

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