George Joseph vs State Of Kerala
2023 Latest Caselaw 6400 Ker

Citation : 2023 Latest Caselaw 6400 Ker
Judgement Date : 13 June, 2023

Kerala High Court

George Joseph vs State Of Kerala on 13 June, 2023

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
                         WP(C) NO. 9516 OF 2023
PETITIONER:

          GEORGE JOSEPH
          AGED 65 YEARS
          SRAMPICKAL BIJUS COTTAGE MUTHOOR P.O THIRUVALLA, PIN -
          689107

          BY ADVS.
          B.G.HARINDRANATH
          AMITH KRISHNAN H.
          LEJO JOSEPH GEORGE
          M.GOPIKRISHNAN



RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY ITS CHIEF SECRETARY GOVERNMENT
          SECRETARIAT THIRUVANANTHAPURAM, PIN - 695001

    2     DISTRICT COLLECTOR PATHANAMTHITTA
          COLLECTORATE PATHANAMTHITTA 2ND FLOOR, COLLECTORATE
          ROAD, CHITTOOR, PATHANAMTHITTA, PIN - 689645

    3     THE REVENUE DIVISION OFFICER THIRUVALLA
          REVENUE DIVISIONAL OFFICE PALIKARA ROAD, THIRUVALLA,
          PIN - 689101

    4     THE VILLAGE OFFICER KUTTAPUZHA
          VILLAGE OFFICE, KUTTAPUZHA THIRUVALLA-MALLAPALLY ROAD,
          PIN - 689103


OTHER PRESENT:

          B.S.SYAMANTAK, GP.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) No.9516 of 2023

                                   2

                 P.V.KUNHIKRISHNAN
             ---------------------
                 W.P (C) No.9516 of 2023
          ---------------------------
            Dated this the 13th day of June, 2023

                             JUDGMENT

This writ petition is filed with the following prayers:-

"a) Issue a writ of mandamus directing the 3rd respondent to consider Exhibit P5 and pass an order directing to remove the tree and its roots that has encroached into the petitioner's property resulting in the collapse of a portion of the petitioner's compound wall.

b) Issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." (SIC)

2. It is submitted that the petitioner and his wife are

senior citizens. It is submitted that a portion of the

petitioner's compound wall was collapsed because of the

encroachment of a large tree and its roots encroaching into

the petitioner's property. Hence, the petitioner approached

the Revenue Divisional Officer vide Ext.P5 petition to cut

and remove the tree. On receipt of Ext.P5, the 3 rd

respondent directed the Village Officer, Kuttapuzha to W.P (C) No.9516 of 2023

submit a report and sketch. Pursuant the said direction, the

4th respondent submitted Ext.P6 report and Ext.P7 rough

sketch on 01.02.2023. Thereafter, the 3 rd respondent has

not taken any steps in furtherance to Ext.P5 petition.

Hence, this writ petition was filed.

3. Heard the learned counsel for the petitioner and

the learned Government Pleader.

4. When this writ petition came up for consideration

on 20.03.2023, this Court passed the following order:-

"Admit. Government Pleader takes notice for the respondents.

The learned Government Pleader seeks time to get instructions.

The 3rd respondent shall file a report before this Court as to whether the compound wall of the petitioner can be restored without cutting down the tree in question.

Post after vacation."

5. As directed by this Court, a report is filed by the

3rd respondent. It will be better to extract the relevant

portion of the report. Paragraph 2 and 3 of the said report

reads as follows:-

"2. It is respectfully submitted that petitioner submitted a complaint on 28.01.2023 stating that a W.P (C) No.9516 of 2023

wild Jackfruit tree located on the adjacent neighbouring property which pose danger and threat to his house and compound wall. The Village Officer. Kuttappuzha was directed to conduct an enquiry and to prepare and submit a report in to the matter raised in the complaint. Accordingly the Village Officer, Kuttappuzha submitted a report on 01.02.2023 bearing report No. 36/2023. but the aforesaid report found to be incomplete, hence village officer, Kuttapuzha was again directed to submit detailed proforma report on the above matter. Thereafter, Village Officer, Kuttapuzha submitted a proforma report stating that currently the disputed tree does not pose any threat, but this tree may pose danger and threat during heavy rainy reason. Hence, the office of this respondent decided to conduct a hearing of both parties on 17.04.2023 and the petitioner alone appeared on that date.

3. It is respectfully submitted that it was decided to conduct a site inspection of the plot and it was found that a wild jack fruit about thirty years old is standing just 25 centimetres away from the boundary of the petitioner's plot penetrating its roots through the collapsed wall portion. Apart from that the wall on the eastern side boundary of the respondent is seen collapsed. The wild jack fruit tree is standing at a distance of 6 meters away from the house of the petitioner. There is every chance of uprooting of tree in a strong wind and the tree may fall down. In the above circumstances, it is advisable to cut and remove the tree."

W.P (C) No.9516 of 2023

6. In the light of the above report submitted by the

3rd respondent, immediate action is to be taken based on

Ext.P5, after giving an opportunity of hearing to the

affected parties. Since the affected party is not impleaded, I

do not want to make any further observation.

Therefore, this writ petition is disposed of with the

following directions:-

i) The 3rd respondent is directed to consider Ext.P5 and take appropriate decision in it in the light of the report submitted by him before this Court, after giving an opportunity of hearing to the petitioner and other affected parties, as expeditiously as possible, at any rate, within six weeks from the date of receipt of a certified copy of this judgment.