Ramavarma R.Thamburan vs Kochi Municipal Corporation
2021 Latest Caselaw 17646 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
    FRIDAY, THE 27TH DAY OF AUGUST 2021/5TH BHADRA, 1943
                     WP(C) NO. 10223 OF 2021
PETITIONER:

          RAMAVARMA R.THAMBURAN, AGED 65 YEARS,
          S/O. K.P.P. NAMBUDIRIPAD,
          RESIDENT AT 40/270, PRATIBHA,
          LAYAM ROAD, KOCHI - 682 011.

          BY ADV I.SHEELA DEVI
RESPONDENTS:

    1     KOCHI MUNICIPAL CORPORATION,
          CORPORATION OFFICE, P.B. NO.1016,
          ERNAKULAM, KOCHI - 682 011,
          REPRESENTED BY ITS SECRETARY.

    2     THE SECRETARY,
          KOCHI MUNICIPAL CORPORATION,
          CORPORATION OFFICE, P.B. NO.1016,
          ERNAKULAM, KOCHI - 682 011.

    3     THE HEALTH OFFICER,
          KOCHI MUNICIPAL CORPORATION,
          CORPORATION OFFICE, P.B.NO.1016,
          ERNAKULAM, KOCHI - 682 011.

 ADDL.4   JOSEPH MARTIN,
          THUNDUVILAKAM (MATHANYA),
          RESIDING AT JUSTICE CHANDRASEKHARAN MENON ROAD,
          (LAYAM ROAD), KOCHI - 682 011.

          (ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED
          27.08.2021 IN I.A.NO.1/2021).

          BY ADVS.
          R1-R3 SRI.K.JANARDHANA SHENOY
          R1-R3 SMT.P.Y.SHEHEERA
          ADDL.R4 SRI.ABRAHAM JOHN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 27.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C)No.10223/2021

                               2




                        JUDGMENT

Dated this the 27th day of August, 2021

The petitioner is aggrieved by the threat and nuisance

caused by a mango tree situated on the corner of the

petitioner's property, in the neighbour's compound.

2. Since the tree situated in the compound of the

additional 4th respondent caused nuisance to the petitioner,

the petitioner filed Ext.P1 complaint before the Secretary to

the 1st respondent Corporation. In Ext.P1 complaint, the

petitioner pointed out that leaves and mangoes from the

tree situated on the southern west corner of the 4 th

respondent's land is falling into his compound, public road

and in the drain. The mango tree has pushed the gate

pillar of the petitioner's property, causing financial damage

and loss to the petitioner. The mangoes falling down, WP(C)No.10223/2021

causes damage to the cars and risk to people, who walk in

the compound of the petitioner. It is causing danger to the

pedestrians also.

3. In Ext.P1, the petitioner further alleged that his

mother-in-law is aged 93 years and is a freedom fighter.

She is unable to walk around or go around in the compound

in her wheel chair due to the threat caused by the falling

mangoes. Pursuant to Ext.P1 complaint, the Health Officer

of the first respondent Corporation called for a hearing on

26.07.2019. However, the matter did not proceed further.

The petitioner has approached this Court seeking to direct

the respondents to cut and remove the dangerous mango

tree which is standing in the north western side of the

petitioner's property situated in the compound of the

additional 4th respondent.

4. The additional 4th respondent filed a counter

affidavit in the writ petition. The additional 4th respondent WP(C)No.10223/2021

stated that the mango tree is very strong and is not causing

any threat to anybody. When the petitioner received

Ext.R4(1) notice dated 01.06.2019 issued on the basis of a

complaint submitted by the petitioner, the additional 4 th

respondent tried to cut branches of the tree hanging over,

on the side of the petitioner's compound. However, the

petitioner and his wife obstructed the workers from cutting

the same. The additional 4th respondent threatened that if

one leaf falls into his compound, he will file police

complaint. The petitioner even parked his car right under

the tree. In Ext.R4(2) reply, the additional 4th respondent

submitted that he cannot remove the branches of the tree

only because of the obstruction caused by the petitioner.

5. The additional 4th respondent pointed out that the

attempts made by the petitioner to remove the overhanging

branches is recorded in Ext.R4(4) statement given by him

before the Health Inspector.

WP(C)No.10223/2021

6. Later, on the basis of complaint filed by

Smt.Leelamma before the Chief Minister, the Health Officer

of the 1st respondent Corporation issued Ext.R4(5) notice

directing the petitioner to cut and remove the mango tree

within 15 days. The additional 4 th respondent submitted

Ext.R4(6) reply to the Health Inspector explaining true facts.

However, the petitioner has approached this Court before

the conclusion of the proceedings pending before the 1 st

respondent-Corporation.

7. Smt. I.Sheela Devi, the learned counsel for the

petitioner urged that the 1st respondent is bound to avert

any threat to the petitioner arising from the dangerous tree

situated in the compound of the 4 th respondent. The 1st

respondent has not taken any effective steps in this regard.

This Court has held that local authorities have a duty to

take precaution against the standing trees which create

danger to the life or property of any person. When the 1 st WP(C)No.10223/2021

respondent has extensive powers, the failure in carrying out

such statutory duty cannot be justified under any

circumstances.

8. Sri. Abraham John, the learned counsel for the

additional 4th respondent on the other hand submitted that

the complaints are motivated. The additional 4 th respondent

has tried to cut and remove the branches of trees allegedly

causing nuisance to the petitioner, by engaging workers.

However, the petitioner himself obstructed attempt made by

the additional 4th respondent. Therefore it is very clear that

the motive of the petitioner is something else. For the said

reason, the writ petition filed by the petitioner is liable to be

dismissed.

9. Heard the learned counsel for the petitioner,

learned Standing Counsel appearing for the respondents 1

to 3 and the learned counsel representing the additional 4 th

respondent.

WP(C)No.10223/2021

10. When a citizen makes a complaint to the

Municipal authorities, expressing concern over the danger

caused by a standing tree in the nearby property or any

public place, the Municipal Authorities have a duty to

enquire into the matter and take necessary precautionary

measures. In the present case, it is discernible that on the

basis of the complaint filed by the petitioner and on the

basis of a complaint preferred by Smt. Leelamma, the

authorities under the 1st respondent Corporation have

initiated steps and even issued Ext.R4(5) notice to the

additional 4th respondent. The proceedings are still

pending.

11. However, as the threat is persisting, it is

necessary that measures have to be taken to avoid any

imminent danger. The additional 4th respondent has

expressed his willingness to cut and remove the branches

of the mango tree causing nuisance to the petitioner, WP(C)No.10223/2021

provided the petitioner co-operates.

In the circumstances, the writ petition is disposed of

with the following directions:

The additional 4th respondent shall cut and remove the

branches of the mango tree in question causing nuisance to

the petitioner within a period of two weeks. The petitioner

shall co-operate with the steps taken by the additional 4 th

respondent to cut and remove the branches of the mango

tree. At the same time, the respondents 2 to 3 will be at

liberty to proceed with Ext.R4(5) notice and conclude the

proceedings so initiated after giving an opportunity of

personal hearing to the petitioner as well as the additional

4th respondent.

Sd/-

N. NAGARESH JUDGE ncd/27.08.2021 WP(C)No.10223/2021

APPENDIX

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 24.04.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 06.07.2019 ISSUED BY 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE REPLY DATED 06.07.2019 SENT BY THE PETITIONER TO THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE NOTICE NO.MOH 8/13337/19 DATED 23.07.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

RESPONDENTS' EXHIBITS Exhibit R4(1) TRUE COPY OF THE NOTICE DATED 01/06/2019 BY THE 1ST RESPONDENT.

Exhibit R4(2) TRUE COPY OF REPRESENTATION DATED 24/06/2019 OF THE 4TH RESPONDENT.

Exhibit R4(3) TRUE COPY OF NOTICE DATED 01/07/2019 OF THE 1ST RESPONDENT.

Exhibit R4(4) TRUE COPY OF THE STATEMENT DATED 09/07/2019.

Exhibit R4(5) TRUE COPY OF THE NOTICE DATED 01/07/2021 OF THE 1ST RESPONDENT.

Exhibit R4(6) TRUE COPY OF THE REPLY DATED 07/07/2021 OF THE 4TH RESPONDENT.

Exhibit R4(7)     TRUE COPY OF THE I.A.NO.8100/2013 IN
                  OS.NO.1352/2013     FILED     BY   THE
                  PLAINTIFF DATED 09/12/2013.