Kerala High Court
Ravi Chandran vs Sivaji on 5 August, 2016
Author: K.T.Sankaran
Bench: Mohan M.Shantanagoudar, K.T.Sankaran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HON'BLE THE ACTING CHIEF JUSTICE MR. MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
THURSDAY,THE 1ST DAY OF SEPTEMBER 2016/10TH BHADRA, 1938
WA.No. 1682 of 2016
AGAINST THE JUDGMENT IN WP(C) NO.10136/2016 OF THE HIGH COURT OF
KERALA DATED 05-08-2016.
APPELLANT/PETITIONER:
RAVI CHANDRAN, S/O.K.RAMACHANDRAN NAYAR
AGED 46 YEARS, PALLATH HOUSE,
EDAYARANMULA WEST P.O., NOW RESIDING AT
KALLOOR VADAKETHIL KARTHIKA,EDAYARANMULA PO,
ARANMULA VILLAGE, KOZHANCHERY TALUK,
PATHANAMTHITTADISTRICT-689 532.
BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.P.B.KRISHNAN
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
SRI.P.M.NEELAKANDAN
SRI.S.NITHIN (ANCHAL)
RESPONDENTS/RESPONDENTS:
1. SIVAJI
AGED 50 YEARS, S/O.LATE SATHYAVRATHAN,
PADINJARE UMMUZHAKATHU HOUSE,
EDAYARANMULA P.O, ARANMULA VILLAGE,
KOZHANCHERY TALUK,
PATHANAMTHITTADISTRICT-689 532.
2. THE SUB DIVISIONAL MAGISTRATE
ADOOR, PATHANAMTHITTA -683 579.
3. THE KERALA STATEHUMAN RIGHTS COMMISSION
TURBO PLUS TOWERS, PMG JUNCTION,
VIKAS BHAVAN P.O, THIRUVANANTHAPURAM-695 033.
R2 & R3 BY GOVERNMENT PLEADER SRI.TEKCHAND
R1 BY ADV. SRI.ARUN B.VARGHESE UTY.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-09-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mohan M. Shantanagoudar, Ag. C.J.
&
K.T.Sankaran, J.
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W.A. No.1682 of 2016
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Dated this the 1st day of September, 2016
JUDGMENT
K.T.Sankaran, J.
The Writ Petition filed by the appellant challenging Ext.P11 order passed by the Sub Divisional Magistrate, Adoor was dismissed by the learned single Judge on the ground of availability of alternative remedy of revision to the appellant.
2. The learned senior counsel appearing for the appellant submitted that Ext.P11 order was passed without hearing the appellant and clear averments have been made in paragraph 12 of the Writ Petition in that regard. The learned Government Pleader submitted that originally, the case was posted before the Sub Divisional Magistrate on 1.2.2016 and there was no sitting on that day. The case was posted to 17.2.2016. On that day, the appellant was heard and Ext.P11 order was passed on 1.3.2016. A reading of W.A. No.1682 of 2016 :: 2 ::
paragraphs 11 and 12 of the Writ Petition does not make the position clear that no opportunity was afforded to the appellant to appear before the Sub Divisional Magistrate.
3. The learned senior counsel for the appellant submitted that on an earlier occasion, as directed by the Sub Divisional Magistrate, the branches of the jack fruit tree were cut and the nuisance, if any, was abated. Thereafter, the first respondent filed an application before the Kerala State Human Rights Commission. The Human Rights Commission, as per Ext.P7 order, directed to cut the branches of the jack fruit tree and directed the Sub Divisional Magistrate to take action under Section 133 of the Code of Criminal Procedure. Accordingly, the Sub Divisional Magistrate issued Ext.P8 notice under Section 133 of the Code of Criminal Procedure and the final order under Section 138 was passed as per Ext.P11 order. Ext.P11 order as well as Ext.P7 order passed by the Human Rights Commission were under challenge in the Writ Petition.
4. Sri.S.V.Balakrishna Iyer, the learned senior counsel for the appellant, submitted that even if it is to be held that as against W.A. No.1682 of 2016 :: 3 ::
Ext.P11 order there is an alternative remedy of revision, there is no alternative remedy as against Ext.P7 order passed by the Human Rights Commission, on the basis of which, proceedings were initiated before the Sub Divisional Magistrate. It is also submitted that the first respondent did not make any application before the Sub Divisional Magistrate and the proceedings were initiated only on the basis of Ext.P7 order passed by the Human Rights Commission.
5. We do not propose to dispose of the Writ Appeal only on the basis of availability of alternative remedy or on the question whether independently of Ext.P11, Ext.P7 order can be challenged. It is fairly clear that the house of the first respondent is situated very close to the property of the appellant and a jack fruit tree is standing very close to the roofing sheet of the house of the first respondent. Ext.R1(f) series photographs would show that small branches of the jack fruit tree lean towards the roof of the house of the first respondent. It is submitted by the learned counsel for the first respondent that the total extent of the land belonging to the first respondent is only 3= cents in which there is a house. W.A. No.1682 of 2016
:: 4 ::
6. The learned senior counsel appearing for the appellant submitted that the property in which the tree is standing originally belonged to the father of the appellant. The father of the appellant died and the property is now allotted in partition to the brother and sisters of the petitioner. Therefore, the proper parties should have been impleaded before the Sub Divisional Magistrate. It is also pointed out that the Human Rights Commission erroneously observed that the title to the property in which the jack fruit tree is standing is quite irrelevant. We do not propose to finally arrive at any conclusion as to the title to the property in which the jack fruit tree is standing, since it is fairly conceded by all the parties that it would be sufficient to cut and remove the overhanging branches of the jack fruit tree so as to obviate nuisance.
7. As stated above, the appellant as well as the first respondent submitted that to resolve the controversy and to maintain peace and harmony, it would be sufficient to cut and remove the overhanging branches of the jack fruit tree which overhang on the roof of the house of the first respondent. The learned senior counsel for the appellant submitted that the overhanging branches would be W.A. No.1682 of 2016 :: 5 ::
cut and removed within a period of three weeks and the matter will be reported to the Sub Divisional Magistrate. If the first respondent disputes the statement made by the appellant that the overhanging branches have been cut, the Sub Divisional Magistrate may appoint Revenue Officers to ascertain the truth or otherwise of the same. If any dispute arises as to the cutting of the branches of the jack fruit tree, the same shall be resolved by passing appropriate orders by the Sub Divisional Magistrate.
Accordingly, the Writ Appeal is allowed to the extent indicated above, setting aside the judgment in the Writ Petition and recording the agreement arrived at between the parties with respect to the cutting of the branches of the jack fruit tree.
Mohan M. Shantanagoudar Acting Chief Justice K. T.Sankaran Judge ahz/