MADHAVA KAMMATH vs GOPALAKRISHNAN S/O RAJAPPANACHARI and VAIKOM MUNICIPALITY, HEALTH INSPECTOR etc.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943** ## **RSA NO. 1059 OF 2018** **[AGAINST THE JUDGMENT AND DECREE DTD.28.2.2018 A.S.NO.16/2015 OF ADDITIONAL DISTRICT COURT-IV, KOTTAYAM WHICH AROSE OUT OF JUDGMENT AND DECREE DTD.27.11.2014 IN O.S.NO. 27/2013 OF MUNSIFF'S COURT, VAIKOM]** ## **APPELLANTS/APPELLANT/PLAINTIFF:** 1 MADHAVA KAMMATH, AGED 76, S/O. GOPALA KAMMATH, VISHNU VIHAR HOUSE, NEAR SALINI HEATER, NADUVILE VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. (DIED, LRS IMPLEADED) ADDL.A2. RADHA MADHAVA KAMMATH ALIAS MOHANA BAI, W/O MADHAVA KAMMATH,AGED 73,VISHNU VIHAR HOUSE,NEAR SALINI THEATER,NADUVILE VILLAGE,VAIKOM TALUK,KOTTAYAM DISTRICT,PIN 686141 ADDL.A3. SREEDEVI.M.KAMMATH, D/O MADHAVA KAMMATH,AGED 47,VISHNU VIHAR HOUSE,NEAR SALINI THEATER,NADUVILE VILLAGE,VAIKOM TALUK,KOTTAYAM DISTRICT,PIN 686141 ADDL.A4. SREENIVASAN.M.KAMMATH, S/O MADHAVA KAMMATH,AGED 46,VISHNU VIHAR HOUSE,NEAR SALINI THEATER,NADUVILE VILLAGE,VAIKOM TALUK,KOTTAYAM DISTRICT,PIN 686141. LRS.OF DECEASED APPELLANT NO.1 ARE IMPLEADED AS ADDL.A2,A3 AND A4 AS PER ORDER DTD.28.6.2021 IN I.A.NO.1/2021. BY ADVS. DR.V.N.SANKARJEE M.SUSEELA V.N.MADHUSUDANAN S.SIDHARDHAN R.UDAYA JYOTHI, SUDHAKARAN V. ARYA BALACHANDRAN R.S.A.No.1059 of 2018 :-2-: ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 GOPALAKRISHNAN S/O. RAJAPPANACHARI, AGED 46, ROHINI, NADUVILE VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT - 686 141. 2 VAIKOM MUNICIPALITY, REPRESENTED BY THE SECRETARY,VAIKOM MUNICIPALITY, VAIKOM TALUK, KOTTAYAM DISTRICT-686141. 3 HEALTH INSPECTOR, VAIKOM MUNICIPALITY, VAIKOM TALUK, KOTTAYAM DISTRICT-686141. 4 D.R. BIJU, JUNIOR HEALTH INSPECTOR, VAIKOM MUNICIPALITY, VAIKOM TALUK, KOTTAYAM DISTRICT-686141. 5 KERALA STATE REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM-695001. ## **OTHER PRESENT:** G.P. SRI. P.M.SATHISH FOR R5. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2021, THE COURT ON 20.07.2021 DELIVERED THE FOLLOWING: R.S.A.No.1059 of 2018 :-3-: **==> picture [328 x 14] intentionally omitted <==** This Regular Second Appeal is preferred against the judgment and decree dated 28.2.2018 in A.S.No.16/2015 on the file of the Additional District Court-IV, Kottayam (hereinafter referred to as 'the first appellate court') arising out of the judgment and decree dated 27.11.2014 in O.S.No.27 of 2013 of the Munsiff's Court, Vaikkom (hereinafter referred to as 'the trial court'). The parties in this appeal are hereinafter referred to as 'the plaintiff' and 'the defendant' in accordance with their rank in the trial court, unless otherwise stated. 2. The first appellant/original plaintiff passed away on 27.5.2021 and an impleading petition (IA No.1/2021) was filed to implead the legal heirs of the first appellant. The above I.A. was allowed on 28[th] June,2021 and additional appellants 2 to 4 were impleaded as per the above order. 3. The suit was one for damages on the ground R.S.A.No.1059 of 2018 :-4-: that the first respondent, who is the neighbouring property owner in collusion with defendants No.2 to 4 illegally and selectively cutting down bigger branches in four mahogany trees, one polyathia and one cashew nut tree with the sole purpose of destroying those trees and thereby the plaintiff sustained damages in terms of money. Hence, the suit was filed for recovery of damages to the tune of Rs.20,000/-. The suit was dismissed by the judgment and decree dated 27.11.2014 which was confirmed in appeal by the first appellate court. Hence, this second appeal. 4. The plaintiff and the first defendant are neighbours. The second defendant is the Vaikkom Municipality represented by its Secretary. The third and fourth defendants are the Health Inspector and Junior Health Inspector of Vaikkom Municipality respectively. The fifth defendant is the Secretary of the Local Self Government Department, Government of Kerala. R.S.A.No.1059 of 2018 :-5-: According to the plaintiff, under the influence of the first defendant, the defendants No.2 to 4 had cut down four mahogany trees, one polyathia and one cashew nut tree in such a destructible manner as to completely ruin those trees. Originally, the first defendant had filed a complaint before the second defendant and on the basis of the complaint, the second and the third defendants fabricated false reports against the plaintiff and passed an order on 15.6.2012, in colourable exercise of power and committed mischief to the trees, whereby the plaintiff sustained a loss of Rs.20,000/-. Previously, there had been litigation between the plaintiff and the first defendant with respect to illegal felling of trees standing in the property of the plaintiff. In the said suit, a decree was pronounced against the first defendant, which was later settled at the Lok Adalath during the first appeal stage. According to the plaintiff, the present felling of trees in collusion with the defendants No.2 to 4 is only a R.S.A.No.1059 of 2018 :-6-: continuation of the animosity, which the first defendant has against the plaintiff. 5. Defendant No.1 has filed a written statement contending that the plaintiff has been maintaining a hostile relationship with the first defendant and his family for a considerable long period of time. According to the defendant, the plaintiff had planted several trees close to the boundary wall between the properties of the plaintiff and the first defendant. The branches of all those trees are overhanging the first defendant's property in such a manner that its branches rested on the terrace of his building and also on the old car porch. Leaves from those trees continuously fell into the property of the first defendant. The roots of the trees protrude beneath the first defendant's property causing damages to the walls of the septic tank as well. Often due to the swaying of the branches of those trees, the electric line passing through the first defendant's property generates spark. R.S.A.No.1059 of 2018 :-7-: Therefore, the first defendant filed a complaint before the Municipality to abate the above nuisance. The branches of the trees were chopped and trimmed by the Municipality in accordance with law. 6. The second defendant filed a separate written statement contending that on 13.1.2012, the first defendant filed a complaint stating that the trees standing in the plaintiff's property are dangerously affecting the life of the first defendant and also causing health hazards. On receipt of the complaint, the fourth defendant inspected the property and reported that the allegations were true. Therefore, on 17.2.2012, notice was issued to the plaintiff. The plaintiff sent a reply stating that a case is pending between the parties before this Court. On enquiry, the contents of the reply letter were found to be incorrect and the branches of the trees, which were dangerously standing and causing nuisance to the first defendant's property, were cut and removed R.S.A.No.1059 of 2018 :-8-: on 15.6.2012. The second defendant had acted only in accordance with law. 7. After settlement of the issues, the trial court referred the case for mediation. But, the dispute could not be settled there. To prove the case of the plaintiff, PWs.1 and 2 were examined and marked Exts.A1 to A12. The second defendant was examined as DW1. The first defendant produced Exts.B1 to B5. The second defendant produced Exts.B6 to B11. The Advocate Commissioner's report and plan were marked as Exts.C1 and C1(a) respectively. The trial court dismissed the suit holding that the plaintiff is not entitled to maintain the suit itself as there is an exclusive bar under Section 563 of the Kerala Municipality Act, 1994 (hereinafter referred to as 'the Act'). Both the courts below concurrently found in favour of the defendants and the suit was ultimately dismissed. 8. Heard Dr.V.N.Sankarjee, the learned counsel R.S.A.No.1059 of 2018 :-9-: for the appellants and Sri.P.M.Sathish, the learned Government Pleader for the fifth respondent. 9. Learned counsel for the appellants contended that the civil court has jurisdiction to entertain a suit for damages when the Municipality and its officers have committed gross illegality in cutting down the trees owned by the appellants. According to the learned counsel for the appellants, Ext.A6 notice issued by the Municipality did not make a requirement to cut and remove the main trunk and branches, but rather to chop the so-called overhanging branches alone. Relying on Ext.C1 report, it was argued that the appellants suffered damages due to the illegal activities perpetrated by respondents No.2 to 4. It was further contended that Sections 441 and 563 of the Act are liable to be declared as unconstitutional inasmuch as it bars remedy to a person aggrieved under Chapter XIX of the Act. 10. The point, which necessitated consideration ## R.S.A.No.1059 of 2018 :-10-: by this court, is regarding the application of Sections 412,509 and 563 of the Act. Learned counsel for the appellants would contend that there is no statutory remedy provided under the Act to claim damages for the arbitrary and unauthorised acts of these officials. According to the learned counsel for the appellants, Section 563 of the Act however, does not exclude those cases where the provisions of the particular Act have not been complied with or the Authority has not acted in conformity with the fundamental principles of judicial procedure. Therefore, it is contended that the civil court has got jurisdiction to entertain the suit. 11. In this context, Sections 412,509 and 563 of the Act are relevant and are extracted hereunder. “ **412. Precautions in case of dangerous trees** .— (1) Where any tree or any branch of a tree or the fruits of any tree deemed by the Secretary to be likely to fall and thereby endanger any person or any structure, the Secretary may, by notice, require the owner of the said tree to secure, lop or cut down the said tree or any branch thereof so as to prevent any danger therefrom. R.S.A.No.1059 of 2018 ## :-11-: (2) Where immediate action is necessary, the Secretary shall before giving such notice or before the period of such notice expires cause to secure, lop or cut down the said tree or branch thereof or remove the fruits thereof or fence off a part of any street or take such other temporary measures as he deems fit to prevent danger, and the cost thereof shall be recoverable from the owner of the tree in the manner provided in section 538. ## xxxxx xxxxxx xxxxxx ## **509. Appeal and revision** — 1. An appeal may be preferred to the Council against any notice issued or any order passed or action taken by the Chairperson or the Secretary under any of the provisions of this Act other than Sections 390, 391, 395, 406 and 408 or the rules or bye-laws or regulations made thereunder. 2. An appeal against any notice or order of the Secretary on the levy of tax, may be preferred to the Standing Committee for Finance in the case of Town Panchayat or Municipal Council and to the Standing Committee for appeals on taxation in the case of Municipal Corporation. 3. Pending decision on an appeal filed under sub-section (1) the Chairperson may, if an application is made, stay the operation of the notice, order or other proceedings on which the appeal is based. 4. Every case in which an order has been passed under sub-section (3) shall be reported R.S.A.No.1059 of 2018 :-12-: to the Council at its next ordinary meeting or at its next meeting along with the reasons in full for passing such order by the Chairperson and the Council shall either ratify the said order with or without modification or revoke it failing which it shall lapse. 5. An appeal under sub-section (1) or subsection (2) shall be filed within thirty days from the date of receipt of the order and dispose of the same by the Council or the Standing Committee, as the case may be, in the manner as it deems fit, within sixty days from the date of its receipt. 6. Any person may file an appeal against any notice issued or any order passed by the Secretary under Sections 390, 391, 395, 406 and 408 to the Tribunal Constituted for the Local Self Government Institutions under Section 271 S of the Kerala Panchayat Raj Act, 1996 (13 of 1994), within thirty days from the date of passing of such order. 7. An appeal may be preferred to the Tribunal, against any decision passed by the Council or any order or notice issued by the Chairperson or Secretary on the basis of such decision on any matter provided in Sections 310 to 508 other than Sections 390, 391, 395,406 and 408 or the rules, bye-laws or regulations made thereunder, within thirty days from the date of passing of such decisions, order or notice. 8. Any person may prefer a revision petition to the tribunal within thirty days against the decision in an appeal filed before the Council or Standing Committee, as the case may be, under sub-section (1) or sub-section (2), or against R.S.A.No.1059 of 2018 :-13-: any order or notice issued by the Chairperson or Secretary on the basis of such decision. 9. The Tribunal shall, as soon as possible, pass appropriate order on an appeal or revision petition filed before it and the order so passed shall be final. 10. The Tribunal may, during the pendency of an appeal or revision petition before it, direct the Council or the Secretary to stay all further proceedings on the said subject, if it deems necessary. 11. No appeal or revision shall be filed against the levy of tax, if the tax shown in the demand notice has not been paid. 12. Notwithstanding anything contained in this section all appeals and revisions filed and pending before any authority before the date of commencement of the Tribunal shall be handed over by such authority to the Tribunal. xxx xxxx xxxx xxx xxxx **563. Jurisdiction of Civil Courts barred** .— No civil Court shall have jurisdiction to entertain any suit, application or petition challenging the legality or propriety of any action taken by or under the authority of the Secretary under any provisions comprised in Chapters XVII, XV1I1 and XIX or the rules and regulations, if any, made thereunder.” R.S.A.No.1059 of 2018 :-14-: 12. Section 412 of the Act provides that where any tree or any branch of a tree is likely to fall and thereby endanger any person or any structure, the Secretary may, by notice, require the owner of the said tree to secure, lop or cut down the tree or any branch thereof so as to prevent any danger therefrom. Section 412(2) provides that where immediate action is necessary, the Secretary is competent to take appropriate action even before giving such notice or before the period of such notice expires to avert the nuisance. This is certainly a quasi judicial power given to the Secretary for enforcing the statutory obligations contemplated under Section 412 of the Act to protect the life and liberty of the people. 13. Section 509(1) of the Act provides an appeal to the Council against any notice issued or any order passed or action taken by the Secretary under Section 412 of the Act. Section 509(7) of the Act provides an R.S.A.No.1059 of 2018 :-15-: appeal to the Tribunal against any decision passed by the Council or any decision provided under Section 412 within thirty days from the date of passing such decision, order or notice. Section 563 of the Act bars jurisdiction of the civil court to entertain any suit, application or petition challenging the legality or propriety of any action taken by or under the authority of the Secretary under any provisions comprised in Chapters XVII, XVIII and XIX or the rules and regulations, if any, made thereunder. 14. DW1 was examined for and on behalf of the second defendant. DW1 admitted that the trees standing in the plaintiff's property were cut and removed pursuant to complaints, which were filed by the first defendant as per Exts.B2 and B9 respectively. It is clear from Ext.B7 that on receipt of the said complaint, the Secretary of the second defendant called for a report from the third defendant. The third defendant submitted Ext.B7 stating that on his inspection, he saw three trees standing close R.S.A.No.1059 of 2018 :-16-: to the eastern boundary of the first defendant's property and in the plaintiff's property. It was further reported that the branches of all those trees were overhanging into the first defendant's property and his house. The report would further show that those trees were causing nuisance to the first defendant. Consequent to the report, the second defendant issued Ext.B8 notice under Section 412 of the Act directing to lop off the branches slanting over the property of the first defendant. After Ext.B8 notice, the plaintiff replied by way of Ext.B9 stating that a case has been pending between the parties. Subsequently, Ext.B10 notice was issued by the second defendant on 1.6.2012 under Section 412 of the Act directing him to lop off the overhanging branches of the trees. Though such a notice was received as per Ext.B10 by the plaintiff, he did not lop off the branches of the tree as directed in Ext.B10. Consequently, it was executed by the Junior Health Inspector by Ext.B11 mahazar. Ext.C1 R.S.A.No.1059 of 2018 :-17-: report prepared by the Advocate Commissioner, inter alia would show that even after lopping off the branches of the trees, the Commissioner had noticed the branches of the trees standing close to the western boundary overhanging into the first defendant's property. Ext.C1 report was prepared on 20.2.2014 whereas the branches of the trees were lopped off on 15.6.2012. 15. Going by the provisions of the Act, it is clear that the Secretary is competent to initiate action under Section 412 of the Act subject to the statutory scrutiny by the first appellate and revisional forums constituted under the Act. Hence, the statute provides a methodology to challenge the order passed by the Secretary under Section 412 of the Act. In this case, admittedly, the Secretary had issued statutory notice under Section 412 of the Act directing the plaintiff to lop off the branches of the trees. The suit was filed indirectly questioning the correctness of the notice issued by the R.S.A.No.1059 of 2018 :-18-: Secretary alleging that the action initiated was not in accordance with law. It was further contended that in the execution of the order, branches were cut and removed to the detriment of the plaintiff. It is a fact that the second defendant was exercising his statutory powers as provided under the Act. The regularity, legality and propriety of the order passed by the Secretary has not been challenged in accordance with law. The order has become final. Accordingly, in execution of the order, the branches were cut and removed. When statute provides the remedy, Section 563 of the Act bars jurisdiction to entertain any suit challenging the legality or propriety of an action taken by the Secretary under Section 412 of the Act. It is clear from the facts of this case that what is challenged in this case is legality of the action taken by the second defendant. The order passed by the second defendant has become final. The plaintiff has filed a suit indirectly challenging the credibility of the order which R.S.A.No.1059 of 2018 :-19-: has become final. ## 16. In **Dhulabhai And Others v The State Of** **Madhya Pradesh** [AIR 1969 SC 78], the Apex Court held as follows:- _“Where the statute gives a finality to the orders of the Special Tribunals, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.”_ In the case at hand, the plaintiff has chosen not to file appeal or revision as contemplated under the Act. The second defendant has passed an order in conformity with the provisions of the Act. It has become final. In the circumstances, the civil court's jurisdiction must be held to be excluded. 17. Last but not least, the learned counsel for the appellants contended that Sections 441 and 563 of R.S.A.No.1059 of 2018 :-20-: the Act are unconstitutional. According to the learned counsel, Section 441 does not provide compensation for damages to the persons aggrieved by illegally cutting down trees and Section 563 of the Act bars remedy to an aggrieved person under Chapter XIX of the Act. Considering the facts and circumstances involved, this Court is of the view that it would be appropriate to relegate the plaintiff to the remedy of a writ petition filed under Article 226 of the Constitution of India challenging the constitutional validity of various provisions of the Act. The powers under Section 100 of the Civil Procedure Code cannot be exercised to declare a law unconstitutional. 18. A second appeal only lies on a substantial question of law. Section 100 of the CPC, as amended, restrict the rights of the second appeal, to only those cases, where a substantial question of law is involved. To be a question of law involved in the case, there must be first, a foundation for it laid in the pleadings, and the R.S.A.No.1059 of 2018 :-21-: question should emerge from the sustainable findings of fact, concurrently arrived at by the two courts below, and it must be necessary to decide that question of law for a just and proper decision of the case. No such question of law nor even a mixed question of law and fact was urged before the trial court or the first appellate court. In a second appeal, the jurisdiction of the High Court being confined to a substantial question of law, a finding of facts arrived at by the two courts below, that the second defendant, in exercise of his jurisdiction under Section 412 of the Act, passed an order directing to cut down the branches of the trees, which were causing nuisance to others, is not open to challenge in a second appeal even if the appreciation of evidence is palpably erroneous and the finding of fact is incorrect. An entirely new point, raised for the first time, before the High Court, challenging the validity of Sections 441 and 563 of the Act is not a question involved in the case. Hence, this R.S.A.No.1059 of 2018 :-22-: Second Appeal is liable to be dismissed. In view of the foregoing conclusions, this Regular Second Appeal is dismissed in limine. There will be no order as to costs. Pending applications, if any, stand closed. Sd/- **N.ANIL KUMAR** , JUDGE MBS/