Kerala High Court
Radha vs Gopalakrishnan on 19 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TH
THURSDAY, THE 19 DAY OF MAY 2022 / 29TH VAISAKHA, 1944
WA NO. 549 OF 2022
AGAINST THE JUDGMENT IN WP(C) 11281/2021 OF HIGH COURT OF KERALA DATED 8.4.2022
APPELLANTS/ADDITIONAL PETITIONERS 2 TO 4:
1 RADHA MADHAVA KAMMATH ALIAS MOHANA BAI, AGED 74 YEARS
W/O. MADHAVA KAMMATH, VISHNU VIHAR HOUSE, NEAR SALINI THEATER,
NADUVILE VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN 686 141.
2 SREEDEVI M. KAMMATH, AGED 48 YEARS, D/O. MADHAVA KAMMATH,
VISHNU VIHAR HOUSE, NEAR SALINI THEATER, NADUVILE VILLAGE,
VAIKOM TALUK, KOTTAYAM DISTRICT, PIN 686 141.
3 SREENIVASAN M. KAMMATH, AGED 47 YEARS, S/O. MADHAVA KAMMATH,
VISHNU VIHAR HOUSE, NEAR SALINI THEATER, NADUVILE VILLAGE,
VAIKOM TALUK, KOTTAYAM DISTRICT, PIN 686 141.
BY ADVS.V.N.SANKARJEE; V.N.MADHUSUDANAN; R.UDAYA JYOTHI; M.M.VINOD
M.SUSEELA; KEERTHI B. CHANDRAN; VIJAYAN PILLAI P.K.
RESPONDENTS/RESPONDENTS 1 TO 4:
1 VAIKOM MUNICIPALITY, REPRESENTED BY THE SECRETARY,
VAIKOM MUNICIPALITY, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN 686 141.
2 THE SECRETARY, VAIKOM MUNICIPALITY, VAIKOM TALUK,
KOTTAYAM DISTRICT, PIN 686 141.
3 THE CHAIRMAN, VAIKOM MUNICIPALITY, VAIKOM VILLAGE,
VAIKOM TALUK, KOTTAYAM DISTRICT, PIN 686 141.
4 GOPALAKRISHNAN, AGED 53 YEARS, S/O. RAJAPPAN ACHARI,
ROHINI NADUVILE VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN 686 141.
SMT. SREEKALA A, SC; SRI. K.P.HARISH, SR GP
SRI.K.M.SATHYANATHA MENON; SMT. KAVERI.S.THAMPY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.05.2022, ALONG WITH
WA.562/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.549/2022, 562/2022
:: 2 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TH
THURSDAY, THE 19 DAY OF MAY 2022 / 29TH VAISAKHA, 1944
WA NO. 562 OF 2022
AGAINST THE JUDGMENT IN WP(C) 8463/2021 OF HIGH COURT OF KERALA DATED 8.4.2022
APPELLANTS/ADDITIONAL RESPONDENTS 8, 10 & 9::
1 RADHA, AGED 74 YEARS, W/O.MADHAVA KAMMATH, VISHNU VIHAR HOUSE, NEAR
GOVERNMENT HOSPITAL, VAIKOM, KOTTAYAM DISTRICT, PIN-686 141.
2 SREEDEVI, AGED 48 YEARS,D/O.MADHAVA KAMMATH, VISHNU VIHAR HOUSE, NEAR
GOVERNMENT HOSPITAL, VAIKOM, KOTTAYAM DISTRICT, PIN-686 141.
3 SREENIVASA KAMMATH, AGED 47 YEARS, S/O.MADHAVA KAMMATH, VISHNU VIHAR
HOUSE, NEAR GOVERNMENT HOSPITAL, VAIKOM, KOTTAYAM DISTRICT, PIN-686 141.
BY ADVS.V.N.SANKARJEE; V.N.MADHUSUDANAN; R.UDAYA JYOTHI
M.M.VINOD; M.SUSEELA; KEERTHI B. CHANDRAN; VIJAYAN PILLAI P.K.
C.PURUSHOTHAMAN NAIR; NITHEESH.M
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 6:
1 GOPALAKRISHNAN, AGED 53 YEARS, S/O.RAJAPPAN ACHARI, ROHINI HOUSE, NEAR GOVERNMENT
HOSPITAL, VAIKOM, KOTTAYAM DISTRICT, PIN-686 141.
2 THE DISTRICT DISASTER MANAGEMENT AUTHORITY, COLLECTORATE, KOTTAYAM-686 002,
REPRESENTED BY ITS CHAIRPERSON.
3 THE REVENUE DIVISIONAL OFFICER, PALA, KOTTAYAM DISTRICT, PIN-686 576.
4 VAIKOM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, VAIKOM, KOTTAYAM DISTRICT, PIN-686
141.
5 THE SECRETARY, VAIKOM MUNICIPALITY, VAIKOM, KOTTAYAM DISTRICT, PIN-686 141.
6 THE MUNICIPAL COUNCIL, VAIKOM MUNICIPALITY, VAIKOM, KOTTAYAM DISTRICT, PIN-686 141.
7 THE HEALTH INSPECTOR, VAIKOM MUNICIPALITY, VAIKOM, KOTTAYAM DISTRICT, PIN-686 141.
SMT. SREEKALA A, SC; SRI. K.P.HARISH, SR GP; SRI.K.M.SATHYANATHA MENON;
SMT. KAVERI.S.THAMPY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.05.2022, ALONG WITH
WA.549/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.549/2022, 562/2022
:: 3 ::
JUDGMENT
[W.A.Nos.549/2022, 562/2022]
Dated this the 19th day of May, 2022
Shaji P Chaly, J.
Above writ appeals are filed challenging the common judgment of
the learned Single Judge in W.P.(C)No.11281/2021 and W.P.
(C)No.8463/2021 dated 8.4.2022 whereby, the learned Single Judge
dismissed the writ petition filed by the appellants and disposed of W.P.
(C)No.8463/2021 filed by one Gopalakrishnan, who is the fourth
respondent in W.P.(C)No.11281/2021 filed by the appellants and issued
the following directions:
"6. I have considered the contentions advanced. It is
evident from the materials placed on record that the trees are
standing in the property of additional respondents 8 to 10 in
such a way as to cause severe nuisance to the petitioner in W.P.
(C).No.8463/2021. Exhibit P17 is apparently an order passed
under Sections 412, 427 and 428 of the Kerala Municipality Act.
Section 412 provides power to the Secretary to secure, lop or cut
down any tree or any branch of a tree or the fruits of any tree
that is deemed by the Secretary to be likely to fall and endanger
any person or any structure. Section 427 provides power in the
Secretary to require the owner or occupier of any building or
land which appears to him to be in a filthy or unwholesome state
or overgrown with any thick noxious or wild vegetation, trees or
undergrowth injuries to health or offensive to the
neighbourhood to clear, cleanse or otherwise put the land in
proper state or to clear away and remove such vegetation, trees
or undergrowth. Section 428 provides that any tree or branch of
tree, which is likely to be a nuisance to the adjacent houses or
wells or tanks to be chopped, secured or cut down. It appears to
be on the basis of specific reports submitted after due
inspections that Exhibit P17 order was passed.
W.A.Nos.549/2022, 562/2022
:: 4 ::
7. The learned counsel for the petitioner would contend
that the trees continue to exist in a precarious condition in spite
of the directions issued in Exhibit P17. In view of the fact that the
directions have been issued pursuant to repeated notices issued
in the matter, I am of the opinion that the contentions raised by
the petitioners in W.P.(C).No.11281/2021 that an appeal is
pending before the Council of the Municipality will not, by itself,
be a reason for them to resist the implementation of Exhibit P17
order. W.P.(C).No.11281/2021 fails and is accordingly dismissed.
8. W.P.(C).No.8463/2021 is disposed of. There will be a
direction to the Secretary of the Municipality to cause a further
inspection to be conducted in the premises. In case Exhibit P17 is
not complied with in full, the respondents shall take appropriate
steps to see that the same is implemented and the offending
trees and branches are cut down and appropriate steps to see
that the directions under Sections 427 and 428 are complied with
in full. Necessary police assistance may also be sought for, for the
compliance of the directions, as directed above. Appropriate
steps will be taken within a period of one month from the date of
receipt of a copy of this judgment."
2. It is thus challenging the legality and correctness of the
judgment of the learned Single Judge, these appeals are filed.
Appellants and the party respondent in the appeals are neighbours. A
dispute was raised by the party respondent before the Secretary of the
Municipality in regard to the dangerous offensive trees standing in the
property of the appellants causing threat to the residential building of
the party respondent and himself and his family. Apparently, a suit was
pending by and between the parties before the Civil Court, Vaikom, and
later an appeal before the District Court, Kottayam, which subject
matter is pending in R.S.A.No.1059/2008 before this court. Whatever
that be, earlier the predecessor in interest of the appellants as well as
W.A.Nos.549/2022, 562/2022
:: 5 ::
the party respondent have filed W.P.(C)Nos.10182/2020 and 9657/ 2020
respectively in regard to the very same issue and the reliefs sought for
in the writ petition were as follows:
"3. The prayers in WP(C).No.10182/2020 are as follows:
" a) Declare that Sections 412, 428, 440, 441 and 563 of the Kerala
Municipality Act, 1994 are unconstitutional and void;
b) Declare that Section 533 of the Kerala Municipality act, 1994 is
unconstitutional and void in as much as it is, if found, inseparably
connected with Sections 412, 428, 440, 441 and 563 of the Act;
c) Issue a writ in the nature of certiorari or any other appropriate
writ or order quashing Exhibits P4, P7 and P8 after calling for the
records leading thereto;
d) Issue a writ in the nature of mandamus or any other
appropriate writ or order directing the 2nd and 3rd respondents
to pay exemplary damages to the petitioner not less than
Rs.50,000/- (Rupees Fifty Thousand); and
e) Pass such other orders as this Honourable Court deems fit and
proper in the facts and circumstances of the case."
2. The prayers in WP(C).No.9657/2020 are as follows:
" i. Issue a writ of mandamus or any other appropriate writ, order
or direction commanding respondents 1 and 2 to implement Ext
P6 notice in accordance with law, by cutting and removing the
trees standing in the property of the 5th respondent which is
found to be causing immediate threat to the life of the petitioner,
his family members and the residential building forthwith;
ii. Issue a writ of mandamus or any other appropriate writ, order
or direction directing 4th respondent to take immediate action
on Ext.P7 complaint forthwith to mitigate the imminent danger
faced by the petitioner and his family;
iii. Issue a writ of mandamus or any other appropriate writ, order
or direction directing respondents 1 to 3 and 5 to make good the
loss to be sustained by the petitioner and his family members in
the event any of the trees noted in Ext P6, Ext P10 and Ext P11
report falls over the petitioners residential house or his property;
iv. Issue a writ of mandamus or any other appropriate writ,
direction or order, directing the respondents 1 to 4 to take
W.A.Nos.549/2022, 562/2022
:: 6 ::
immediate action to cut and remove the trees standing in the
property of the 5th respondent in consideration of Ext P6, Ext P10
and Ext P11;
v. Issue such other reliefs which may deem fit and proper in the
facts and circumstances of the case; and
vi. Allow this Writ Petition (Civil) with costs."
3. After elaborately considering the issues and taking into
account the provisions of law, a learned single Judge of this court as per
a common judgment dated 22.6.2020 has issued the following directions:
1. The matters in relation to impugned Exts.P-4, P-7 & P-8 notices
as produced in WP(C).No.10182/2020, will stand remitted to the
respondent Secretary, Vaikom Municipality, for consideration
and decision.
2. In that regard it is further ordered that, the Secretary, Vaikom
Municipality, will take up the matters for finalization of
proceedings pursuant to Exts.P-4, P-7 & P-8 as produced in
WP(C).No.10182/2020, and such proceedings will have to be
finalized after hearing the rival parties taking due note of the
contents of abovesaid inspection report submitted by the
Assistant Engineer, LSGD, and also after duly taking note of the
objections if any, that may be given in writing by the petitioner
in WP(C).No.10182/2020.
3. The petitioner in WP(C).No.10182/2020 will immediately give
his objections to the matters in relation to the contents of
abovesaid inspection report filed by the Assistant Engineer, LSGD,
without any further delay, and such written objections along with
a certified copy of this judgment should be produced by him
before the Secretary, Vaikom Municipality, within 5 days from
the date notified for receiving certified copy of this judgment.
4. Thereafter, the Secretary, Vaikom Municipality, will afford
reasonable opportunity of being heard to the petitioner in
WP(C).No.10182/2020, the petitioner in WP(C).No.9657/2020 and
after taking due note of the contentions of the inspection report,
and the written objections if any, given against the same by the
petitioner in WP(C).No.10182/2020, as well as the submissions of
the petitioner in WP(C).No.9657/2020, should pass orders so as to
finalize the proceedings pursuant to Exts.P-4, P-7 & P-8 notices as
produced in WP(C).No.10182/2020, in accordance with the
W.A.Nos.549/2022, 562/2022
:: 7 ::
provisions contained in Sections 412, 427 & 428 of the Kerala
Municipality Act, 1994, without much delay preferably within an
outer time limit of 2 weeks from the date of production of a
certified copy of this judgment.
5. The respective petitioners will produce certified copies of this
judgment along with copies of respective memorandum of these
WP(C)s before the Secretary, Vaikom Municipality.
6. The learned Standing Counsel for the respondent Vaikom
Municipality should also produce a certified copy of this
judgment before the Secretary of Vaikom Municipality for
necessary information and further action."
4. Later, in compliance with the directions issued by the learned
Single Judge in the aforesaid common judgment, the Secretary of the
Municipality has passed an order dated 15.10.2020, which is produced as
Ext.P17 in W.P.(C)No.8463/2021 filed by the party respondent in the
appeal, whereby the Secretary of the Municipality has directed the
predecessor interest in property of the appellants Sri.Late Madhava
Kammath to cut and remove the trees and branches standing dangerous
to the property of the party respondent within 15 days from the date of
receipt of the said order failing which, the Municipality will take
adequate action to cut and remove the trees and branches so standing
and the appellants would be liable to pay cost of the same to the
Municipality. Apparently, appellants have preferred a statutory appeal
before the Municipal Council in contemplation of Section 509 of the
Kerala Municipality Act, 1994, against the said order of the Secretary,
which is pending consideration. The appellants have filed W.P.
W.A.Nos.549/2022, 562/2022
:: 8 ::
(C)No.11281/2021 seeking direction for disposal of the said appeal and
for other consequential orders whereas W.P.(C)No.8463/2021 is filed by
the party respondent seeking direction to the Secretary of the
Municipality to implement Ext.P17 order passed by the Secretary in its
letter and spirit. The paramount contention advanced by the appellants
in the appeals is that the learned Single Judge was not right in allowing
the writ petition filed by the party respondent since the appeal filed by
the appellants before the Municipal Council is pending consideration.
Various other contentions are also raised. But fact remains in the
statement filed by the Vaikom Municipality, the third respondent in
W.P.(C)No.8463/2021 filed by the party respondent, after discussing the
facts and circumstances, it is stated as follows at paragraph 9:
"9. As per the common judgment in W.P.(C)No.9657/20 & W.P.
(C)No.10182/20 dated 22.8.2020, this respondent pronounced the
order no.H1-3723/19 dated 15.10.2020. The notice along with the
order issued to both parties. After the stipulated time the 7 th
respondent didn't comply the order dated 15.10.2020. The 6 th
respondent was deputed to implement the order and two
contempt cases were pending on that time against this
respondent. More over two writ appeals are pending before this
Honourable court. On 30.10.2020, early morning at 8 am the 6 th
respondent cut the trees and branches departmentally and
removed one of the most dangerous tree from its root (poovarasu
tree). Three mahagoney trees' top portion and branches of Anjili
tree, arana tree and banyan tree were cut and removed. Now
these trees are sprouted stage and presently there is no
dangerous situation."
W.A.Nos.549/2022, 562/2022
:: 9 ::
5. It was taking into account the entire facts and circumstances
and the law involved in the subject that the learned Single Judge has
passed the impugned common judgment, where it is directed that
Ext.P17 order is to be complied with by the Secretary of the
Municipality in accordance with the stipulations contained under
Sections 427 and 428 of the Kerala Municipality Act, 1994. The case
projected by the appellants is that later on the basis of the complaints
filed by the party respondent, Municipality has again issued notice to
the appellants and is proceeding further. In our considered opinion
that is not a subject matter for consideration in the writ appeal. If the
trees, and pruned trees have sprouted and grown again are causing
further danger to the property and person of the party respondent, it is
for the Municipality to consider the same taking into account the
complaint filed by the party respondent and do the necessary in
accordance with law. Anyway, we are not expressing any opinion with
respect to that in these appeals.
Taking into account the facts and circumstances and the pros and
cons of the matter, in our considered opinion, nothing remains to be
adjudicated in these appeals in view of the action taken and pursued by
the Secretary of the Municipality consequent to the order passed by it
dated 15.10.2020 specifically referred to above. Even though learned
W.A.Nos.549/2022, 562/2022
:: 10 ::
counsel for the appellants has submitted that the appeal is still pending
before the Council, that would not dissuade the Secretary to implement
the order passed by the Secretary pursuant to the directions issued by
the learned Single Judge, and especially when the order is not
admittedly stayed by the Municipal Council/the Chairperson.
Assimilating the facts and situations in extenso, we do not think the
appellants have made out a case of jurisdictional error or other legal
infirmities susceptible to be interfered in an intra court appeal filed
under Section 5 of the High Court Act. Needless to say, appeals fail
accordingly, they are dismissed.
sd/-
S.MANIKUMAR
CHIEF JUSTICE
sd/-
SHAJI P. CHALY
JUDGE
jes
