Kerala High Court
Gopalakrishnan vs The District Disaster Management ... on 8 April, 2022
Author: Anu Sivaraman
Bench: Anu Sivaraman
W.P.(C).Nos.8463 & 11281/21
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 8TH DAY OF APRIL 2022 / 18TH CHAITHRA, 1944
WP(C) NO. 8463 OF 2021
PETITIONER:
GOPALAKRISHNAN
AGED 53 YEARS
S/O. RAJAPPAN ACHARI, ROHINI HOUSE, NEAR
GOVERNMENT HOSPITAL, VAIKOM, KOTTAYAM DISTRICT,
PIN - 686 141.
BY ADVS.
K.M.SATHYANATHA MENON
SMT.KAVERY S THAMPI
RESPONDENTS:
1 THE DISTRICT DISASTER MANAGEMENT AUTHORITY
COLLECTORATE, KOTTAYAM - 686 002, REPRESENTED BY
ITS CHAIR PERSON.
2 THE REVENUE DIVISIONAL OFFICER, PALA
KOTTAYAM DISTRICT, PIN - 686 576.
3 THE VAIKOM MUNICIPALITY
REPRESENTED BY ITS SECRETARY, VAIKOM, KOTTAYAM
DISTRICT, PIN - 686 141.
4 THE SECRETARY
VAIKOM MUNICIPALITY, VAIKOM, KOTTAYAM DISTRICT,
PIN - 686 141.
W.P.(C).Nos.8463 & 11281/21
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5 THE MUNICIPAL COUNCIL
VAIKOM MUNICIPALITY, VAIKOM, KOTTAYAM DISTRICT,
PIN - 686 141, REPRESENTED BY ITS CHAIRMAN.
6 THE HEALTH INSPECTOR
VAIKOM MUNICIPALITY, VAIKOM, KOTTAYAM DISTRICT,
PIN - 686 141.
7 MADHAVA KAMMATH
AGED 80 YEARS
S/O. GOPALAKAMMATH, VISHNU VIHAR HOUSE, NEAR
GOVERNMENT HOSPITAL, VAIKOM, KOTTAYAM DISTRICT,
PIN - 686 141.
8 ADDL R8 RADHA
W/O.MADHAVA KAMMATH, VISHNU VIHAR HOUSE, NEAR
GOVERNMENT HOSPITAL, VAIKOM, KOTTAYAM DISTRICT,
PIN-686 141.
9 ADDL R9 SREENIVASA KAMMATH
AGED 45 YEARS
S/O.MADHAVA KAMMATH, VISHNU VIHAR HOUSE, NEAR
GOVERNMENT HOSPITAL, VAIKOM, KOTTAYAM DISTRICT,
PIN-686 14.
10 ADDL R10 SREEDEVI
AGED 47 YEARS
S/O.MADHAVA KAMMATH, VISHNU VIHAR HOUSE, NEAR
GOVERNMENT HOSPITAL, VAIKOM, KOTTAYAM DISTRICT,
PIN-686 14.
ADDL.R8 TO R10 IMPLEADED AS PER ORDER DATED 11-
06-21 IN IA 2/21.
W.P.(C).Nos.8463 & 11281/21
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BY ADVS.
GOVERNMENT PLEADER
SMT. SREEKALA. A, SC, VAIKOM MUNICIPALITY
DR.V.N.SANKARJEE
SRI.V.N.MADHUSUDANAN
SMT.R.UDAYA JYOTHI
SRI.M.M.VINOD
SMT.M.SUSEELA
SMT. KEERTHI B. CHANDRAN
SHRI.VIJAYAN PILLAI P.K.
SRI.C.PURUSHOTHAMAN NAIR
SHRI.SANAL C.S
SHRI.NITHEESH.M
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.02.2022, ALONG WITH WP(C).11281/2021, THE
COURT ON 08.04.2022 DELIVERED THE FOLLOWING:
W.P.(C).Nos.8463 & 11281/21
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 8TH DAY OF APRIL 2022 / 18TH CHAITHRA, 1944
WP(C) NO. 11281 OF 2021
PETITIONERS:
1 MADHAVA KAMMATH, (DECEASED)
AGED 81 YEARS
S/O. GOPALA KAMMATH, VISHNU VIHAR HOUSE, NEAR
SALINI THEATER, NADUVILE VILLAGE, VAIKOM
TALUK,KOTTAYAM DISTRICT , PIN 686 141
2 ADDL P2. RADHA MADHAVA KAMMATH @ MOHANA BAI,
AGED 73 YEARS
W/O. MADHAVA KAMMATH, AGED 73,VISHNU VIHAR HOUSE,
NEAR SALINI THEATER, NADUVILE COLLEGE, VAIKOM
TALUK, KOTTAYAM DISTRICT-686141.
3 ADDL P3.SREEDEVI M.KAMMATH,
AGED 47 YEARS
D/O. MADHAVA KAMMATH, AGED 47,VISHNU VIHAR HOUSE,
NEAR SALINI THEATER, NADUVILE COLLEGE, VAIKOM
TALUK, KOTTAYAM DISTRICT-686141.
4 ADDL P4. SREENIVASAN M.KAMMATH,
AGED 46 YEARS
S/O. MADHAVA KAMMATH, AGED 46,VISHNU VIHAR HOUSE,
NEAR SALINI THEATER, NADUVILE COLLEGE, VAIKOM
TALUK, KOTTAYAM DISTRICT-686141.
(ADDITIONAL P2 TO P4 ARE IMPLEADED AS PER ORDER
DATED 09/06/2021 IN IA 1/2021 IN WPC)
W.P.(C).Nos.8463 & 11281/21
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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
SANAL C.S
NITHEESH.M
RESPONDENTS:
1 VAIKOM MUNICIPALITY
REPRESENTED BY THE SECRETARY, VAIKOM MUNICIPALITY,
VAIKOM TALUK, KOTTAYAM DISTRICT, PIN 686 141.
2 THE SECRETARY,
VAIKOM MUNICIPALITY, VAIKOM VILLAGE, VAIKOM TALUK,
KOTTAYAM DISTRICT, PIN 686 141
3 THE CHAIRMAN,
VAIKOM MUNICIPALITY, VAIKOM VILLAGE, VAIKOM
TALUK , KOTTAYAM DISTRICT, PIN 686 141
4 GOPALAKRISHNAN,
AGED 46 YEARS
S/O. RAJAPPANACHARI, ROHINI, NADUVILE VILLAGE,
VAIKOM TALUK , KOTTAYAM DISTRICT, PIN 686 141
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.02.2022, ALONG WITH WP(C).8463/2021, THE
COURT ON 08.04.2022 DELIVERED THE FOLLOWING:
W.P.(C).Nos.8463 & 11281/21
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ANU SIVARAMAN, J.
= = = = = = = = = = = = = = =
W.P.(C).Nos.8463 & 11281 of 2021
= = = = = = = = = = = = = = = =
Dated this the 8th day of April, 2022
JUDGMENT
1. Heard the learned counsel for the petitioners, the learned Government Pleader and learned counsel appearing for the Municipality.
2. W.P.(C).No.8463/2021 is filed seeking the following reliefs:-
"i. issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 4 and 6 to implement Ext. P17 order in totality and thereby cut and remove all the trees noted as dangerous and nuisance to the petitioner in Ext.P6, Ext.P15 reports forthwith; ii.Issue a writ of mandamus or any other appropriate writ, order or direction directing 4th respondent to invoke the powers under section 430 of the Kerala Municipality Act and cause the act or the work mentioned in Ext. P17 to be done and to recover the expenses incurred for the same from the 7th respondent as arrears of property tax.
iii issue a writ of mandamus or any other writ, direction or order, directing the 1st respondent to take immediate action to cut and remove the trees standing in the property of the 7th respondent in the light of Ext. P6, Ext. P11 and Ext. P12 and Ext. P15 report and mitigate the danger before monsoon under the provisions of the Disaster Management Act 2005 dehors the pendency of the application before the 2nd respondent and actions taken by the 3rd respondent municipality under the Municipality Act 1994;
iv. issue a writ of mandamus or any other appropriate writ, order or direction directing 2nd respondent to consider and pass orders on Ext P9 de hors the proceedings under the Kerala Municipality Act 1994."
W.P.(C).Nos.8463 & 11281/21 7
3. Petitioner contends that additional respondents 8 to 10 are his immediate neighbours and that there are several large trees planted in their property which causes severe threat to the life and property of the petitioner. It is submitted that since the 7 th respondent, who is the predecessor in interest of respondents 8 to 10 was an employee of the municipality, the complaints made by the petitioner were not properly entertained by the municipality. It is submitted that when orders were passed to cut and remove the trees and the offending branches, the 7 th respondent refused to do so and when the municipality proceeded to abate the nuisance, a suit was filed for damages, which was dismissed against which an RSA is now pending consideration. It is contended by the petitioner that due to the roots of the trees, the basement of the petitioner's eastern wall had collapsed and the offensive waste and leaves have accumulated in the properties of both the petitioner as well as additonal respondents 8 to 10 and is creating untold nuisance to the petitioner and to his properties. It is submitted that the reports submitted by the village officer and the panchayat authorities are clear indication that the contentions raised by W.P.(C).Nos.8463 & 11281/21 8 the petitioner are completely true and warranted. It is submitted that even after Exhibit P17 order has been passed, the respondents are refusing to comply with the directions contained therein.
4. A statement has been filed by the 3 rd respondent stating that the allegations raised in the writ petition are justified and that orders had been passed requiring the 7 th respondent to cut and remove the trees which were causing danger to the petitioner's properties. It is stated that on 30.10.2020 the 6 th respondent cut the trees and branches and removed one of the most dangerous trees from its root that the trees had sprouted from where they were cut, but there is no imminent danger as of now. A report filed by the RDO, Pala is also on record stating that the matter is being considered by the 3 rd respondent.
5. A detailed counter affidavit had also been placed on record by additional respondents 8 to 10. It is the contention of respondents 8 to 10 that branches of several trees had been W.P.(C).Nos.8463 & 11281/21 9 cut and removed by the Municipality and that the damage found on the property of the petitioner is due to age of the structures and not due to the trees standing in the respondents' property. W.P.(C).No.11281/2021 is filed challenging Exhibit P17 order of the municipality, which is sought to be implemented in the other writ petition. It is contended that the orders were passed without considering the objections raised by the petitioner and that there are suits filed for damages, which are pending consideration in appeal. It is submitted that an appeal preferred against the decision of the Panchayat as evidenced by Exhibit P6, is still pending consideration and has not been disposed of.
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 W.P.(C).Nos.8463 & 11281/21 10 deemed by the Secretary to be likely to fall an 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.
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, W.P.(C).Nos.8463 & 11281/21 11 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.
sd/-
Anu Sivaraman, Judge sj W.P.(C).Nos.8463 & 11281/21 12 APPENDIX OF WP(C) 8463/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 27.11.2014 IN O.S.NO.27/2013 ON THE FILES OF THE MUNSIFF COURT, VAIKOM.
EXHIBIT P2 TRUE COPY OF THE CASE STATUS REPORT OF R.S.A.NO.1059/2018 AS DOWNLOADED FROM THE WEBSITE OF THE HON'BLE HIGH COURT OF KERALA.
EXHIBIT P3 TRUE COPY OF THE EXTC1(a) SKETCH ATTACHED TO THE COMMISSION REPORT SUBMITTED IN O.S.NO.27/2013 OF MUNSIFF COURT, VAIKOM DATED 16.06.2014.
EXHIBIT P4 PHOTOGRAPH OF THE WELL, TERRACE PORTION, WALL IN THE PROPERTY OF PETITIONER.
EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED 13.06.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE NOTICE NO.H1 DATED 6.7.2019 ISSUED BY THE HEALTH INSPECTOR, VAIKOM MUNICIPALITY TO THE 7TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE REPORT OF THE 6TH RESPONDENT DATED 05.07.2019.
EXHIBIT P7(a) PHOTOGRAPH DATED 14.10.2019, AT 10 P.M. WITH TREE FELL UPON THE HOUSE OF THE PETITIONER.
EXHIBIT P8 PHOTOGRAPH OF THE EASTERN BOUNDARY WALL OF PETITIONER.
W.P.(C).Nos.8463 & 11281/21 13 EXHIBIT P9 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 14.10.2019.
EXHIBIT P10 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 14.10.2019.
EXHIBIT P11 TRUE COPY OF THE REPORT DATED 27.08.2019 PREPARED AND SUBMITTED BY THE VILLAGE OFFICER, VAIKOM TO THE TAHASILDAR, VAIKOM.
EXHIBIT P12 TRUE COPY OF THE REPORT DATED 29.08.2019 ALONG WITH THE SKETCH SUBMITTED BY THE TAHASILDAR, VAIKOM TO THE 2ND RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 27.04.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE NEWS-PAPER REPORT DATED 18.05.2020 IN MALAYALA MANORAMA DAILY. EXHIBIT P15 TRUE COPY OF THE REPORT AND ANNEXURE SUBMITTED IN BY THE ASSISTANT ENGINEER, LSGD, ENGINEERING WING, VAIKOM MUNICIPALITY BEFORE THIS HON'BLE COURT ALONG WITH THE MEMO FILED BY THE SENIOR GOVERNMENT PLEADER DATED 8.6.2020 IN W.P.(C) NO.9657 OF 2020.
EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 22.06.2020 IN WP(C) NO.9657 OF 2020.
EXHIBIT P17 TRUE COPY OF THE ORDER NO.H1-3723/2019 DATED 15.10.2020 PASSED BY THE 4TH RESPONDENT.
W.P.(C).Nos.8463 & 11281/21 14 EXHIBIT P18 PHOTOGRAPHS OF THE TREES STANDING IN THE PROPERTY OF THE 7TH RESPONDENT AS ON 27.11.2020.
EXHIBIT P19 PHOTOGRAPHS OF THE TREES STANDING IN THE PROPERTY OF THE 7TH RESPONDENT AS ON 25.03.2021.
W.P.(C).Nos.8463 & 11281/21 15 APPENDIX OF WP(C) 11281/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 22-06- 2020 IN W.P(C) NO. 10182/2020 AND W.P(C) NO 99657/2020 OF THIS HONOURABLE COURT. EXHIBIT P2 TRUE COPY OF THE PETITIONER'S OBJECTION DATED 8-07-2020 SUBMITTED TO THE 2ND RESPONDENT (WITHOUT ANNEXRES) EXHIBIT P3 TRUE COPY OF THE 2ND RESPONDENT'S ORDER NO. H1-3723/19 DATED 15-10-2020 ISSUED TO THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE PETITIONERS REQUEST DATED 18-10-2020 SUBMITTED TO THE 2NED RESPONDENT TOGETHER WITH WITH THE RECEIPT DATED 19-10-2020 EXHIBIT P5 TRUE COPY OF THE 2ND RESPONDENT'S LETTER DATED 28-10-2020 ISSUED TO THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE PETITIONER'S APPEAL DATED 30-10-2020 PREFERRED BEFORE THE COUNCIL OF THE RESPONDENT MUNICIPALITY TOGETHER WITH RECEIPT DATED 30-10-2020.
True copy PS to Judge