## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.NAGARESH**
**FRIDAY, THE 25[TH] DAY OF JUNE 2021 / 4TH ASHADHA, 1943**
**WP(C) NO. 47 OF 2021**
## **PETITIONER:**
**SUDHA RAJAGOPAL AGED 65 YEARS VANAMALI, C1-55,INDIRA NAGAR, KADAVANTHRA,KOCHI-682 020**
**BY ADVS. PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SMT.K.R.MONISHA SMT.SHRUTHI SARA JACOB SMT.JOAN JOSEPH SMT.RAVEENA NAZ**
## **RESPONDENTS:**
- **1 CORPORATION OF COCHIN REPRESENTED BY ITS SECRETARY, PARK AVENUE, KOCHI-682 011**
- **2 THE HEALTH INSPECTOR, CIRCLE 12, CORPORATION OF COCHIN, PARK AVENUE, KOCHI-682 011**
- **3 K.BALAKRISHNA MENON, C1-54,'GEETHANJALI', INDIA NAGAR, KADAVANTHRA, KOCHI-682 020**
**BY ADVS. R1-2 BY SHRI.K.JANARDHANA SHENOY, SC, KOCHI MUNICIPAL CORPORATION R3 BY SRI.A.B.MOHANAKUMAR**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
~ ~ ~ ~ ~ ~ ~ ~ ~
_**Dated this the 25[th] day of June, 2021**_
The petitioner seeks to set aside Ext.P19 order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram in Revision Petition No.15 of 2020.
2. The petitioner states that she owns 4.5 cents of land in which she constructed a residential house in the year 1994. The 3[rd] respondent owns land on the southern side of the petitioner's property. A coconut tree standing in the land of the 3[rd] respondent is dangerously leaning towards the petitioner’s property and the coconuts and cadjans are falling to the petitioner’s land causing threat to her life. The roots of the tree have gone into the compound wall cracking the same and blocking the drainage. The petitioner and her husband are senior citizens.
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3. In the year 2017, the petitioner submitted a complaint to the 1[st] respondent-Corporation of Cochin. Thereupon, the Health Inspector inspected the site and Ext.P1 notice dated 28.09.2017 was issued to the 3[rd] respondent directing to cut and remove the tree within seven days. As the 3[rd] respondent failed to cut the tree, a further notice Ext.P2 dated 26.10.2017 was issued. A hearing in the matter was conducted and the Corporation issued Ext.P4 order on 09.02.2018 holding that cutting of the tree is necessary to avert accidents. The 3[rd] respondent was directed to cut and remove the tree.
4. The 3[rd] respondent filed an appeal before the Corporation Council. The Corporation dismissed the appeal on 26.05.2018, which decision was communicated as per Ext.P6 dated 26.06.2018. The 1[st] respondent authorised the 2[nd] respondent to cut and remove the tree. The 3[rd] respondent thereupon filed a complaint before the Ombudsman for Local Self Government Institutions as Complaint No.260/2019 on 10.04.2019. The said complaint was withdrawn by the 3[rd]
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respondent on 06.01.2020. In Complaint No.254/2019 filed by the petitioner, the Ombudsman passed Ext.P12 order directing the 1[st] respondent to implement Ext.P4 order. Thereafter, the 3[rd] respondent filed W.P.(C) No.5135/2020 seeking to desist the 1[st] respondent from acting on Ext.P6 of the Corporation. By Ext.P14 judgment, the said writ petition was dismissed as infructuous. The 1[st] respondent filed yet another W.P.(C) No.6828/2020 seeking to set aside Ext.P12 order of the Ombudsman.
5. The petitioner states that the 3[rd] respondent had filed Ext.P16 R.P.No.15/2020 before the Tribunal for Local Self Government Institutions invoking Section 509 of the Kerala Municipalities Act, 1994, in March 2020. The petitioner filed Ext.P18 Written Statement in the R.P. specifically pointing out that the Revision is barred by limitation. The Tribunal, however, allowed the R.P. and remitted the matter back for consideration of the appeal afresh. The petitioner contends that since the R.P is time barred, the Tribunal ought to have dismissed the R.P. _in limine_ .
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6. Heard the learned counsel for the petitioner and the learned Standing Counsel for respondents 1 and 2.
7. The short question arising for consideration is whether Ext.P16 Revision Petition filed by the petitioner is time barred and whether the Tribunal was justified in entertaining the Revision Petition and remitting the matter back. Ext.P16 would show that it has been filed against an order dated 26.06.2018. of the Corporation. Ext.P16 Revision Petition bears the date 17.02.2020. The petitioner would contend that it was actually filed only in March, 2020. At any rate, Ext.P16 could not have been filed prior to 17.02.2020. That means the Revision was filed after a lapse of more than 18 months.
8. In view of Rule 8 of the Tribunal for Kerala Local Self Government Institutions Rules,1999, a Revision Petition should be filed within 30 days from the date of the impugned proceedings. The Tribunal can condone delay only up to a period of 30 days. This Court has held in _**K.N. Thankappan and others v. Tribunal for Local Self Government**_
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_**Institutions and others** [2015 (4) KLJ 294]_ that Section 14 of the Limitation Act is not applicable to the proceedings before the Tribunal.
9. The Tribunal has considered the objection of the petitioner as to the limitation in page 11 of Ext.P19 as follows:
“Another contention with respect to the limitation. From annexure P6, it can be seen that revision petitioner firstly approached the Hon'ble Ombudsman challenging the order issued by the 1[st] respondent. But on 06.01.20 it was withdrawn by the revision petitioner herein. If a party litigating in good faith before a forum, such period could not taken into account in order to compute the period of limitation. This is the general law. So against the 1[st] order issued by the 1[st] respondent, proceedings was initiated before the Ombudsman and the same was withdrawn on 06.01.20. Through its order, which is received by the revision petitioner on 15.02.20. If that be so before this Court it is to be filed on or before 14.03.20. This revision petition is filed on 07.03.20 as per the available records. So I am of the view that there is no limitation in filing the revision petition before this Tribunal and such a contention raised by the learned counsel for the 3[rd] respondent is not at all sustainable.”
The said conclusion made by the Tribunal goes against the law laid down by this Court in _**K.N. Thankappan and others**_ (supra) and hence the order cannot be sustained.
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In the facts of the case and for the reasons stated above, the writ petition is allowed and Ext.P19 order dated 02.12.2020 in R.P. No.15/2020 of the Tribunal for Local Self Government Institutions, Thiruvananthapuram, is set aside.
Sd/- **N. NAGARESH, JUDGE**
aks/28.06.2021
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## **APPENDIX OF WP(C) 47/2021**
## **PETITIONER'S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF NOTICE NO.MOH8/034975/2017 ISSUED BY THE 2ND RESPONDENT DATED 28.09.2017**
- **EXHIBIT P2 TRUE COPY OF NOTICE NO.MOH8/34975/2017 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT DATED 26.10.2017**
- **EXHIBIT P3 TRUE COPY OF NOTICE NO.MOH8/034975/2017 ISSUED BY THE 2ND RESPONDENT DATED 01.12.2017**
- **EXHIBIT P4 TRUE COPY OF ORDER NO.ISO/ MOH8/34975/2017 ISSUED BY THE 1ST RESPONDENT DATED 09.02.2018**
**EXHIBIT P5 TRUE COPY OF HEARING NOTICE NO.ISO/ MOH8/34975/2017 ISSUED BY THE 1ST RESPONDENT 22.05.2018 EXHIBIT P6 TRUE COPY OF INTIMATION NO.ISO/ MOH834975/2017 ISSUED BY THE 1ST RESPONDENT DATED 26.06.2018**
- **EXHIBIT P7 TRUE COPY OF THE WRIT PETITION FILED AS WPC NO.23758/2018 (WITHOUT EXHIBITS ) DATED 16.07.2018**
**EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THE HIGH COURT OF KERALA IN WPC NO.23758/2018 DATED 09.08.2018**
**EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THE HIGH COURT OF KERALA IN WPC NO.23758/2018 DATED 07.11.2018**
- **EXHIBIT P10 TRUE COPY OF COMPLAINT FILED AS COMPLAINT NO.260/2019 BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED 22.12.2018 AND FILED ON 10.04.2019**
- **EXHIBIT P11 TRUE COPY OF THE ORDER OF THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN COMPLAINT NO.260/2019 DATED 06.01.2020**
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**EXHIBIT P12**
- **TRUE COPY OF THE ORDER OF THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN COMPLAINT NO.254/2019 DATED 19.02.2020**
- **EXHIBIT P13 TRUE COPY OF THE MEMORANDUM OF WRIT PETITION FILED AS WPC NO.5135/2020 DATED 20.02.20 (WITHOUT EXHIBITS)**
- **EXHIBIT P14 TRUE COPY OF THE JUDGMENT OF THE HIGH COURT OF KERALA IN WPC NO.5135/2020 DATED 10.03.2020**
- **EXHIBIT P15 TRUE COPY OF THE MEMORANDUM WRIT PETITION FILES AS WPC NO.6828/2020 DATED 05.03.2020 (WITHOUT EXHIBITS)**
- **EXHIBIT P16 TRUE COPY OF THE MEMORANDUM OF REVISION FILED BY THE 3RD RESPONDENT (WITHOUT EXHIBITS) BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS AS RP NO.15/2020 SHOWING THE DATED 17.02.2020**
- **EXHIBIT P17 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENTS IN RP NO.15/2020 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED NIL**
- **EXHIBIT P18 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 3RD RESPONDENT IN RP NO.15/2020 OF THE TRIBUNAL, FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED 15.09.2020**
- **EXHIBIT P19 TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS , THIRUVANTHAPURAM IN RP NO.15/2020 DATED 02.12.2020**
- **EXHIBIT P20 TRUE COPIES OF THE PHOTOGRAPHS OF THE COCONUT TREE IN ISSUE**
