Mymoona Azeez vs The Kayamkulam Municipality and Muhammad Sherif

Manjula Chellur, Ag. C.J.

Heard learned counsel for the appellant as well as Standing Counsel for the Municipality and counsel representing the party respondent/3rd respondent. The entire issue revolves round a coconut tree which is in a slanting position overlooking the residential house of the party respondent. According to the party respondent, in spite of several requests and demands, the appellant herein did not heed to the request to see that either the tree is removed or some protective measures are taken as the slanting position of the tree was dangerous to the life and property of the party respondent. In this connection the party respondent approached the 1st respondent Municipality and the Municipality seems to have passed an order u/s 406(1) of the Kerala Municipalities Act directing cutting and removing of the coconut tree standing in a dangerous position in the appellant''s property. A revision came to be filed and the said revision was disposed of as per Ext. P3 wherein the order of the Municipality was set aside. The matter was directed to be placed before the council who could take a decision after hearing both the parties.

The order in question, i.e. Ext. P4 is said to have been passed by the council subsequent to the disposal of the revision as per the directions in the said revision. The main grievance of the writ petitioner was, she was not informed or communicated with the decision indicated at Ext. P4, therefore Ext. P4 is without any basis hence she approached the learned Single Judge challenging the same.

The learned Single Judge after referring to the affidavit filed on behalf of the Municipally at paragraph 4 opined that the decision of the council was not one sided. In other words, both the parties were heard where suggestions were made to the appellant/writ petitioner to take protective measures. However, the counseling was not successful and hence ultimately the council passed an order which lead to the issuance of Ext. P4. The fact remains, on what basis the council took such a decision which was indicated in Ext. P4 was to be made clear to the appellant/writ petitioner. It is also equally the duty on the part of the appellant/writ petitioner to see that her neighbour is not under constant threat of danger to his life and property as the coconut tree belonging to the appellant is in a dangerous slanting position posing danger to the life and property of the party respondent and also his family members. In that view of the matter, we dispose of the above appeal directing the respondent Municipality to send a copy of the order of the council indicated at Ext. P4 giving some time to comply with the directions, if any, so as to allow the appellant to know what exactly was said or held against her.

But, having regard to the statement of the appellant/writ petitioner as early as in March 2012 before the council that she would take proper protective measures if three months time were given, but nothing is done by the appellant/writ petitioner till date in that regard. Therefore, in that view of the matter, before the exercise of communicating and taking a decision in pursuance of the order of the council, if any untoward incident happens resulting danger to the life and property of the party respondent or anyone claiming under him, the appellant/writ petitioner will be solely responsible for all the consequences. The respondent Municipality shall communicate the decision of the council to the appellant within one week from the date of receipt of a copy of this judgment and the appellant shall comply with the directions therein within another two weeks from the date of receipt of a copy of the communication.