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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. ANIL KUMAR, J.
Madhava Kammath S/o. Gopala Kammath & Ors. - Appellants
Versus
Gopalakrishnan S/o. Rajappanachari & Ors. - Respondents
R.S.A. No. 1059 of 2018
Decided On : 20-07-2021
Kerala Municipality Act, 1994 - Section 563 -Second Appeal – Suit for damages – Application of Sections 412,509 and 563 of the Act – Whether Sections 441 and 563 of the Act are unconstitutionalsuit was one for damages on the ground 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.
Finding of the Court:
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 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 has become final- 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- 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
Result: Second Appeal dismissed
JUDGMENT :
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 28th 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 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. 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 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. 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
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