Disposed

D.Parameswaran Nair, v. Thripunithura Municipality

Kerala HC10 Jul 2019WP(C)/11052/2019

Case brief

AI extract

What is this about?

Petitioner sought mandamus directing Municipality to take action against neighbour regarding tree encroachment. Court held that subsequent appeal and stay application are pending before Municipality and directed authorities to dispose of them within specific time limits under Section 509 to expedite resolution.

What did the court decide?

Directed Chairperson to consider stay application within two weeks and Municipal Council to dispose of appeal within two months.

D.Parameswaran Nair, Vs Thripunithura Municipality — Writ and Judicial Review | Kerala HC (2019)

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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 ANIL K.NARENDRAN

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WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941

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WP(C).No.11052 of 2019

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PETITIONER/S:

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D.PARAMESWARAN NAIR, AGED 71 YEARS, S/O.GANGADHARAN NAIR, PREM NIVAS, THIRUVANKULAM P.O., ERNAKULAM DISTRICT - 682 035.

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BY ADVS.

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SRI.K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT

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RESPONDENT/S:

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1 THRIPUNITHURA MUNICIPALITY, MUNICIPAL OFFICE, THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682 301, REP. BY ITS SECRETARY.

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2 SECRETARY, THRIPUNITHURA MUNICIPALITY, MUNICIPAL OFFICE, THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682 301.

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3 GIRIJA SIVAJNANAN PILLAI, AGED 55 YEARS, W/O.SIVAJNANAN PILLAI, APARNA HOUSE, KESAVANPADY, THIRUVANKULAM, ERNAKULAM DISTRICT, PIN- 682 305.

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BY ADVS.

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SRI.C.V.MANUVILSAN, SC, TRIPUNITHURA MUNCIPALITY SRI.S.SHYAM SRI.KIRAN PETER KURIAKOSE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.C.11052/2019

J U D G M E N T

The petitioner and the 3^rd respondent are neighbours. Petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 1 and 2 to take action against the 3^rd respondent in furtherance of Ext.P1 notice dated 13.12.2018, which is one issued invoking the provisions under Section 412 of the Kerala Municipality Act, 1994, whereby the 3^rd respondent has been directed to cut and remove the tree standing in her property, which are allegedly slanting towards the residential property of the petitioner.

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On 08.04.2019, when this writ petition came up for admission, the learned Standing Counsel took notice on admission for respondents 1 and 2. Urgent notice on admission

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W.P.C.11052/2019

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by speed post was ordered to the 3^rd respondent, returnable by 24.04.2019.

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respondents 1 and 2. A counter affidavit has been filed by the 3^rd respondent, opposing the

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reliefs sought for in the writ petition. The petitioner has also filed reply affidavit.

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petitioner, the learned Standing Counsel for the Municipality, representing respondents 1 and 2,

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and also the learned counsel for the 3^rd respondent.

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respondent would point out that subsequent to the issuance of Ext.P1 notice, the 3^rd respondent

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has been issued with Ext.R3(a) notice dated

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06.02.2019, invoking the provisions under Section 412 of the Kerala Municipality Act.

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Challenging that notice, the 3^rd respondent has

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preferred Ext.R3(d) appeal, along with an

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W.P.C.11052/2019

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interlocutory application seeking stay of

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operation of Ext.R3(a) notice, which are now

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pending consideration before respondents 1 and 2.

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Having considered the submissions made

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by the learned counsel on both sides, this Court finds that, subsequent notice, i.e., Ext.P3(a) notice issued by the 2^nd respondent, invoking the Provisions under Section 412 of the Kerala Municipality Act, is under challenge in Ext.R3(d) appeal filed by the 3^rd respondent, which is accompanied by an interlocutory

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application for stay. In view of the Provisions under Section 509 of the Kerala Municipality Act, Ext.R3(d) appeal has to be considered by the Municipal Council and the interlocutory

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application for stay has to be considered by the Chairperson of the Municipality.

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The learned standing counsel for the

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Municipality would submit that the Chairperson

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W.P.C.11052/2019

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of the Municipality shall consider and pass

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appropriate orders on the interlocutory application filed along with Ext.R3(d) appeal, with notice to the petitioner and also to the 3^rd respondent, and thereafter the Municipal Council

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shall dispose of that appeal, within a time limit to be specified by this Court.

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Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of, leaving open the legal and factual contentions raised by both sides, by directing the Chairperson of the 1^st respondent Municipality to consider and pass appropriate orders on the interlocutory application filed along with Ext.R3(d) appeal, with notice to the petitioner and also to the 3^rd respondent, as expeditiously as possible, at any rate within a period of two weeks from the date of receipt of a certified copy this judgment.

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Thereafter, the Municipal Council shall

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W.P.C.11052/2019

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consider Ext.R3(d) appeal filed by the

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petitioner and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and also to the 3^rd respondent, as expeditiously as possible, at any rate within a further period of two months.

Sd/-

ANIL K.NARENDRAN

JUDGE

W.P.C.11052/2019

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 13/12/2018 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.

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EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS DATED 18.11.2017 OF THE TAHASILDAR, KANAYANNUR TALUK.

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EXHIBIT P3 TRUE COPY OF THE REPORT DATED 10.11.2017 OF THE TALUK SURVEYOR, KANAYANNUR TALUK ALONG WITH SKETHC.

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EXHIBIT P4 PHOTOGRAPHS SHOWING THE TREES SLANTING TOWARDS THE ROOF OF THE PETITIONERS.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT-R3(A) TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 06/02/2019

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EXHIBIT-R1(B) TRUE COPY OF THE COMPLAINT GIVEN BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT DATED 18/12/2018

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EXHIBIT-R1(C) TRUE COPY OF THE COMPLAINT GIVEN BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT DATED 12/09/2018

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EXHIBIT-R3(D) TRUE COPY OF THE APPEAL SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT DATED 16/03/2019

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EXHIBIT-R3(E) TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT UNDER WHICH EXHIBIT-R3(D) WAS RECEIVED BY THE 1ST RESPONDENT

D.Parameswaran Nair, v. Thripunithura Municipality

Case brief

What is this about?

What did the court decide?

D.Parameswaran Nair, v. Thripunithura Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

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