Dismissed

Vijayalekshmi v. Pokker

Kerala HC26 Aug 2016OP(C)/2107/2016

Case brief

AI extract

What is this about?

High Court of Kerala dismissed a writ petition challenging an order advancing an irregular application in a civil suit. The petitioner, a school manager wishing to remove dangerous trees on adjacent disputed land, lacked locus standi despite pressing educational and safety concerns.

What did the court decide?

Petition dismissed with observations that petitioner has no locus standi in civil proceedings regarding property she does not claim a right in.

Vijayalekshmi Vs Pokker — Landlord and Tenant | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938

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OP(C).No. 2107 of 2016 (O)

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IA.1018/2016 IN AS.NO.25/2013 OF SUB COURT, OTTAPALAM, DATED 8/6/2016

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PETITIONER(S):

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VIJAYALEKSHMI, AGED 65 YEARS, W/O. LATE VASU, EZHUTHASSAN, MAKKARA HOUSE, ELAD POST, CHERUKARA, MALAPPURAM DISTRICT (MANAGER, AIDED MAPPILA LOWER PRIMARY SCHOOL, K T PADI, MARAYAMANGALAM).

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BY ADVS.SRI.R.SREEHARI SRI.SACHIN VYAS

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RESPONDENT(S):

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1. POKKER, AGED 47 YEARS, S/O. LATE MOHAMMEDKUTTY. 2. AYISHA @ ASIYA, AGED 45 YEARS, D/O. MOHAMMEDKUTTY. 3. SALIHA, AGED 44 YEARS, D/O. LATE MOHAMMEDKUTTY. 4. VEERAN, AGED 41 YEARS, S/O. LATE MOHAMMEDKUTTY.

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5. NABEESA, AGED 34 YEARS, D/O. LATE MOHAMMEDKUTTY.

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6. KHADEEJA UMMA AGED 71 YEARS, W/O. LATE MOHAMMEDKUTTY.

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ALL RESIDING AT KULAVAR KUNNATH, MARAYAMANGALAM AMSOM, DESOM AND POST, PIN-679335.

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7. MOITHUTTY AGED 54 YEARS, S/O. LATE MOHAMMED, KULAVAR KUNNATH, MARAYAMANGALAM AMSOM, DESOM AND POST, PIN-679335.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2107 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	PHOTOCOPY OF THE ACKNOWLEDGEMENT OF THE DISTRICT COLLECTOR, PALAKKAD REGARDING THE COMPLAINT.
EXHIBIT P2	PHOTOCOPY OF THE COMPLAINT DATED 11-05-2015 SUBMITTED TO THE CHIEF MINISTER OF KERALA.
EXHIBIT P3	PHOTOCOPY OF THE COMPLAINT DATED 18-06-2015 SUBMITTED TO THE ASST. EDUCATIONAL OFFICER, SHORNUR.
EXHIBIT P4	PHOTOCOPY OF THE COMPLAINT DT. 11-04-2016 TO THE SECRETARY, NELLAYA GRAMA PANCHAYAT.
EXHIBIT P4A	PHOTOCOPY OF ACKNOWLEDGEMENT OF NELLAYA GRAMA PANCHAYAT.
EXHIBIT P5	PHOTOCOPY OF THE PETITION FILED BEFORE THE SUB COLLECTOR/RDO OTTAPALAM DT. 27-04-2016.
EXHIBIT P6	PHOTOCOPY OF JUDGMENT IN OS NO. 158/2007 OF MUNSIFF COURT, OTTAPALAM DT. 31-01-2013.
EXHIBIT P7	PHOTOCOPY OF APPEAL MEMO OF AS NO. 25/2013 OF SUB COURT, OTTAPALAM.
EXHIBIT P8	PHOTOGRAPH SHOWING THE TREES STANDING IN THE PLAINT SCHEDULE PROPERTY.
EXHIBIT P9	PHOTOGRAPH SHOWING THE TREES STANDING IN THE PLAINT SCHEDULE PROPERTY.
EXHIBIT P10	PHOTOCOPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 1019/2016 IN AS 25/2013 OF SUB COURT, OTTAPALAM.
EXHIBIT P11	PHOTOCOPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 1018/2016 IN AS 25/2013 OF SUB COURT, OTTAPALAM.
EXHIBIT P12	PHOTOCOPY OF THE OBJECTION FILED BY THE 7TH RESPONDENT IN IA 1018/2016 IN AS 25/2013 OF SUB COURT, OTTAPALAM.
EXHIBIT P13	CERTIFIED COPY OF THE ORDER IN IA 1018/2016 IN AS NO.25/2013 OF SUB COURT, OTTAPALAM DATED 08-06-2016.

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RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

K.RAMAKRISHNAN, J.

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O.P (C) No.2107 of 2016

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========================== Dated this the 26^rd day of August, 2016

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JUDGMENT

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This petition has been filed by the petitioner challenging Ext.P13 order passed by the Sub Court, Ottappalam under Article 227 of the Constitution of India.

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It is alleged in the petition that petitioner is the Manager

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of an aided Mappila Lower Primary School, K T Padi, Marayamangalam. It is functioning there from 1939 onwards. Adjacent to the school compound the properties belonging to the respondents and others are situated and there is a suit between the respondents and others pending before Munsiff Court, Ottappalam as O.S No.158 of 2007 and that suit was for partition, which is pending in appeal before Sub Court, Ottappalam as A.S No.25 of 2013. Certain trees standing in that property is dangerously slanting towards the school compound causing danger to the children in the school. So they filed a petition, which was acknowledged by the District Collector evidenced by Ext.P1 and they also filed petitions before the Chief Minister evidenced by Ext.P2 and Assistant Education Officer, Shornur

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O.P(C) No.2107 of 2016

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Page numbers

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evidenced by Ext.P3 and also Ext.P5 application has been filed before the Revenue Divisional Officer, Ottapalam. None of them had taken action on the ground that the civil suit is pending. So the petitioner moved the Sub Court, Ottapalam by filing Ext.P10 application as I.A No.1019 of 2016 in A.S No.25 of 2013 for directing the respondents to cut and remove the trees after taking out a commission to note the present stage of the trees. But the application was posted to a longer date. Thereafter he filed an application for advance hearing and after advance hearing Ext.P13 order was passed by the court below. This order is being challenged by the petitioner.

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Considering the nature of dispute, this Court felt that the same can be disposed of at the admission stage itself after hearing the counsel for the petitioner Sri.R.Sreehari.

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Counsel for the petitioner submitted that because of the pendency of the suit, the authorities are not taking any steps to redress the grievance of the petitioner. So he had no option except approach this Court for that purpose.

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It is an admitted fact that petitioner is not a party to the

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O.P(C) No.2107 of 2016

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Page numbers

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suit O.S No.158 of 2007, which is pending in appeal before the Sub Court as A.S No.25 of 2013. That was a suit for partition filed between the parties who are having right in the property. Grievance of the petitioner was that she is the Manager of an aided Mappila Lower Primary School and some of the trees in the property, which is subject matter in the civil proceedings, is slanting dangerously towards school compound causing imminent threat to the life of the children coming to the school. Though she filed applications before the authorities including Collector and Sub divisional Magistrate, they are not taking any action on the ground that civil suit is pending. That prompted the petitioner to file an application before the Sub Court where the appeal is pending to appoint a commissioner and direct the parties to the proceedings, who are found liable for that purpose, to cut and remove the dangerously slanting branches of the trees. Since that petition was not heard and posted along with the appeal, the petitioner filed the present petition as I.A No.1018 of 2016 to advance the hearing of I.A No.1019 of 2016 and court below dismissed the application vide Ext.P13 order.

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O.P(C) No.2107 of 2016

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Page numbers

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It may be mentioned here the petitioner had chosen a wrong forum to get her grievances redressed. If the trees standing in the property of another causing danger to the life of persons or children in the school, then, the remedy of the petitioner is to move the Sub divisional Magistrate under Section 133 of the Code of Criminal Procedure. Since the petitioner is not a party to the partition suit and she is not claiming any right in that property, pendency of that suit may not be a hurdle for the petitioner to file such an application. But, who has to be directed to cut and remove the trees will have to be considered by the authorities on the basis of evidence in that case. Further, if the Sub divisional Magistrate is not considering her petition and without passing any order keeping the petition pending there, then, the remedy of the petitioner is to move this Court under Section 482 of the Code of Criminal Procedure to direct the Sub divisional Magistrate to pass appropriate orders in that application.

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So, under such circumstances, this Court feels that there is no illegality committed by the court below in dismissing the

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O.P(C) No.2107 of 2016

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Page numbers

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application expressing its view that the petitioner is not a party to the proceedings and she has no locus standi to file an application of that nature before that court. So the petitioner is not entitled

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to get any relief and the petition is liable to be dismissed.

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This petition is dismissed with the above observations.

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Sd/-

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K.RAMAKRISHNAN, JUDGE

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vdv/29/08/16

Vijayalekshmi v. Pokker

Case brief

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Vijayalekshmi v. Pokker

Case brief

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