Dismissed

E.Prasanna v. Kozhikode Corporation

Kerala HC29 Nov 2016WP(C)/10354/2008

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging the Kozhikode Corporation's action to remove tree trunks obstructing a public road. The Court held that since the Civil Court found the road was public and accessible, the Corporation was entitled to cut obstructing growth, subject to a proper inspection with notice.

What did the court decide?

Writ petition dismissed. Corporation directed to inspect premises with notice and remove only obstructing trunks.

E.Prasanna Vs Kozhikode Corporation — 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.VINOD CHANDRAN

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TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938

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WP(C).No. 10354 of 2008 (G)

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PETITIONER(S):

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1. E. PRASANNA, W/O.LOHITHAKSHAN RESIDING AT ARREEKKANATT HOUSE, BEYPORE, KOZHIKODE.

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2. E. REGHUMATHAN, S/O.MUTHORAKUTTY RESIDING AT EDAKKUDY HOUSE, AGED 60 YEARS, KARUVASSERY, KOZHIKODE.

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BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH

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RESPONDENT(S):

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1. THE KOZHIKODE CORPORATION, REPRESENTED

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BY ITS SECRETARY, CORPORATION BUILDING, BEECH ROAD, KOZHIKODE.

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2. THE SECRETARY KOZHIKODE CORPORATION, CORPORATION BUILDING, BEECH ROAD, KOZHIKODE.

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3. THE HEALTH OFFICER KOZHIKODE CORPORATION, CORPORATION OFFICE, KOZHIKODE.

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4. P.C. JANAKI, W/O.SUBRAMANIAM RESIDING AT SHINE, PUTHENPURA PARAMBA,

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P.O.KARUVASSERI, KOZHIKODE-673 010.

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R1 TO R3 BY SRI.P.V.KUNHIKRISHNAN,STANDING COUNSEL BY SRI.K.D.BABU,STANDING COUNSEL R4 BY ADV. SRI.K.A.SALIL NARAYANAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 10354 of 2008 (G)

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APPENDIX

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PETITIONER'S EXHIBITS :

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P1: COPY OF THE ORDER DT 16/10/2007 IN CMA 44/2007.

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P2: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER.

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P3: COPY OF THE PLAINT AS OS 167/2007 BEFORE THE MUNSIFF COURT-I, KOZHIKODE.

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P4: COPY OF THE INJUNCTION ORDER PASSED IN OS 167/2007.

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P5: COPY OF THE ORDER PASSED by the ORDER PASSED BY R2.

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P6: COPY OF ORDER PASSED BY THE R3.

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P7: COPY OF THE REPLY GIVEN BY THE 2ND PETITIONER.

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RESPONDENT'S EXHIBITS :

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EXT.R4(a): COPY OF THE JUDGMENT IN OS 93/2007 OF THE COURT OF FIRST ADDITIONAL MUNSIFF, KOZHIKODE

//TRUE COPY//

P.S. TO JUDGE

K. Vinod Chandran, J

---------------------------------------W.P.(C) No.10354 of 2008-G

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Dated this the 29^th day of November, 2016

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JUDGMENT

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The petitioners are siblings, who are aggrieved with the

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attempt of the Corporation allegedly at the instigation of the 4^th respondent to cut away a tree standing in the eastern extremity of the petitioners’ property. The petitioners also are aggrieved with the attempt of the Corporation to tar a road, which, according to them, does not exist at all. A pathway, conceded to one Bharathan having property on the southern boundary of the petitioners’ property, is now sought to be converted into a public road, for which, the petitioners contend, an acquisition has to be necessarily made. The petitioners assert that they retain ownership of the land through which the pathway is laid.

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It is also contended that the pathway existing on the eastern boundary is of 3 meter width which was created for providing access to one Bharathan who purchased the property lying to the south of the petitioners property. The said Bharathan purchased the property from the father of the petitioners and the pathway provided

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WP(C) No.10354 of 2008

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was the maximum possible so as to preserve the tree standing in the eastern boundary. The petitioners in the writ petition also relied on a suit filed in which there was an order of temporary injunction passed. The attempt of the Corporation would also result in cutting of the tree standing on the boundary which tree, it is claimed, has an aura of divinity being attached to the ancient temple situated in the property.

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The Corporation and the 4^th respondent, however, contends, based on Exhibit R4(A), that the petitioners had lost before the Civil Court on the very same contentions with respect to the pathway existing on the eastern boundary of the petitioners’ property and is now attempting to agitate the very same cause of action in the writ petition; on the ground of preserving a tree which is claimed to be devine being a part and parcel of the private temple existing in the eastern boundary of the property.

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The petitioners were aggrieved with Exhibits P5 and P6 orders. Exhibit P5 is a notice issued by the Corporation, wherein it was found that there is a pathway existing on the eastern boundary of the property of the petitioners. It was also found that the branches of a tree standing in the eastern boundary of the petitioners’ property leans-on to

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WP(C) No.10354 of 2008

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the pathway in a dangerous manner; thus prohibiting motorable traffic on the road; causing apprehension of threat to life and limb of the persons using the said road. Exhibit P6 is a direction issued to remove the objectionable branches of the tree, which is leaning-on to the motorable road.

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The Civil Suit relied on by the petitioners stood dismissed

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after the filing of the writ petition as is evidenced by Exthibit R4 (a) judgment. The 1^st petitioner was before the Civil Court seeking a permanent prohibitory injunction against the Kozhikode Corporation from forming a pathway on the eastern side of the petitioners’ property. The plaintiff claimed that there is no pathway in existence and there was a mere permission granted to one Bharathan, who had a property on the southern boundary of the petitioners, to use the land of the petitioners for ingress and egress. The said contention, it is to be imediately noticed, is quite contrary to the admision in the writ petition that there was a pathway of 3 meter width on the eastern boundary.

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The Civil Court found that even according to the 2^nd petitioner, who was examined as PW1 and is the brother of the plaintiff/1^st petitioner, there was a motorable road on the eastern

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WP(C) No.10354 of 2008

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boundary of the property having 9 feet width and there was no intention to cause any obstruction to the said road. Exhibit B1 was the file relating to the proceedings initiated by the Corporation to fell the tree initiated on a complaint in the year 2006. The file indicated the 2^nd petitioner, who replied to the notice issued by the Corporation, having admitted to the motorable road and the fact of vehicular traffic being carried on through the road. The plaintiff [1^st petitioner] having objected to the reliance placed on Exhibit B1, called for the documents from the Corporation, which, however, were not marked and the Court drew adverse inference on the plaintiff having not attempted to mark the documents produced by the Corporation. The suit was dismissed as per Exhibit R4(a) and the appeal is also said to have been rejected.

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In such circumstances, at this point it cannot be argued that there was no motorable road existing on the eastern boundary of the petitioners’ property. The petitioners' contention of a permissive use exclusively to Bharathan is contrary to the findings in the suit. The Civil Court categorically found that there was vehicular traffic through the road and in such circumstance if any obstruction is caused by the tree leaning over the pathway, then the same would have to be cut off. The

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ownership over the land, through which the pathway runs, was never asserted before the Civil Court.

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A photograph has been produced by the Corporation,

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across the Bar, which indicates that the tree has branched off with three trunks from its root itself; two of such growths leaning-on to the road and the main growth not at all obstructing the road. There is some anomaly in the branches alone being directed to be cut; while the petitioners assert that it is not the branch but tree itself would have to be cut. The photograph indicates the tree having branched of from the root itself with there being, growth of three trunks from the very same root. These cannot be taken as branches existing on a single tree; as is normally understood. But the branches, as found in the Commission report, could only be taken as the two tree trunks emerging from the root itself, which lean-on to the road. In the circumstances detailed, the Secretary of the Corporation would inspect the premises with notice to the petitioners and also the 4^th respondent and verify as to whether the tree trunks leaning-on to the pathway is causing any obstruction to the vehicular traffic. If any obstruction is caused, then it would have to be removed, but only to the extent of such obstruction.

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The writ petition, hence, would stand dismissed. The Corporation would take appropriate proceedings after issuance of

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notice to the petitioners and the 4^th respondent. Parties are left to suffer their respective costs.

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Sd/- K.Vinod Chandran Judge.

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Vku/-

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[ true copy ]

E.Prasanna v. Kozhikode Corporation

Case brief

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E.Prasanna v. Kozhikode Corporation

Case brief

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