IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 10 of 2005()
1. K. VENKATESH BHAT, S/O. DEVANNA BHAT,
... Petitioner
Vs
1. THE KASARAGOD MUNICIPALITY,
... Respondent
2. K. KAMALAKSHA ACHARY,
For Petitioner :SRI.K.G.GOURI SANKAR RAI
For Respondent :SRI.V.M.KURIAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :08/02/2011
O R D E R
M.N. KRISHNAN,J.
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C.R.P.NO.10 OF 2005
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Dated this the 8th day of February, 2011.
O R D E R
This revision is preferred against the judgment of the
Subordinate Judge, Kasaragod in Appeal Suit No.16/1999.
This appeal in turn was preferred against the judgment and
decree in O.S.No.82/1998. The suit was one for damages on
the ground that the defendants had cut and removed the
tree which belonged to the plaintiff and therefore they are
liable to pay damages in the form of money.
2. According to the plaintiff, the first defendant had
issued a notice to which he had sent a reply raising the
plea of non necessity of cutting and removing the tree. But
the first defendant had proceeded with the act and resulted in
cutting and removing of the tree.
3. The defendants would contend that the plaintiff is
not entitled to maintain the suit itself as there is an
exclusive bar under Section 563 of the Municipality Act. Both
the courts below found in favour of the defendants and
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dismissed the suit. It is against that decision, the plaintiff
has come up in revision.
4. Heard the learned counsel for the revision petitioner
as well as the respondents. The point which necessitates
determination by this Court is regarding the impact of
Sections 412, 509 and 563 of the Kerala Municipality Act.
The learned counsel for the revision petitioner would urge
before me that there is no statutory remedy provided under
the Municipality Act to claim damages for the arbitrary and
unauthorised act of its officials. The civil court has got
jurisdiction and therefore it is liable to be entertained. In
support of the same, he had relied upon the decision rendered
by a Full Bench of this Court reported in Muhammad Haji v.
Kunhunni Nair (1993 (1) KLT 227). In that decision the
learned Judges had relied upon a decision of the Hon’ble
Supreme Court reported in Dhulabhai v. State of M.P (AIR
1969 SC 78). The Hon’ble Supreme Court held that:
“Where the statute gives a finality to the
orders of the special tribunals the civil courts’
jurisdiction must be held to be excluded if
there is adequate remedy to do what the
civil court would normally do in a suit. Such
provision, however, does not exclude those: 3 :
C.R.P.NO.10 OF 2005cases 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”.
5.Now I may refer to the relevant sections under the
Municipality Act. Section 412 gives power to the Secretary
to secure, lop or cut down the tree or any branch thereof
so as to prevent any danger therefrom. So it is the statutory
power which is expected to be judicially exercised by the
person enforcing the statutory obligation. Section 509 of the
Municipality Act, 1994 as it stood prior to the amendment
provides an appeal to the Council in an order passed under
Section 412 of the Act and also gives power for a revision
either of suo motu nature or by moving an application. Now
the impact of this section and Section 563 which bars
jurisdiction of the civil court is a matter to be considered.
Under Section 563 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
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Chapters XVII, XVIII and XIX or the rules and regulations,
if any, made thereunder. When a statutory duty is performed
by an authority, the Act gives protection against proceeding
in a civil court. In order to enable a person to find out
whether the action has been initiated in accordance with
the law, the statute has provided an appeal as well as a
revision.
6. In this case when the Secretary orders or gives a
notice directing to cut and remove a tree, it is challengeable
under Section 509 before the Council in appeal. When the
Council also turns down the appeal, the revision also will lie
to the Government or in other words, it is the propriety of
the action of the Secretary taken under Section 412 that is
subject to statutory scrutiny by the appellate and the
revisional forums. So the statute provides a methodology to
find out the correctness or incorrectness of an order passed
by the lowest authority. In this case the Secretary had
directed the tree to be cut and removed. Correctness of
this on receipt of notice was challenged. It was dismissed.
The plaintiff did not pursue further action. So one of the
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authorities exercising the statutory power had confirmed
the legality or propriety of the order passed by the lower
authority. Since it has become final under the statute,
whether the civil court can entertain it to find out whether
such an order passed by the authority is correct or not, I am
afraid, it is to shield the officer and to protect, the provision
under Section 563 is incorporated whereby the statue holds
that the civil court has no jurisdiction in such mattes. So far
as this case is concerned, what is challenged is legality of
the action taken by the Secretary. It has become final by
confirmation by the Council.
Now a civil suit is filed indirectly challenging the
credibility of the order which exactly the State wants to
prevent or in other words as held by the decision referred to
by the Hon’ble Supreme Court in Dhulabhai v. State of
M.P (AIR 1969 SC 78) the statute provides remedies when
it is found that it has become final, may not be correct to
again entertain it in another jurisdiction. So, I concur with
the findings of the courts below and hold that the suit is
barred under Section 563 of the Municipality Act and
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therefore dismissal of the suit is confirmed and the revision
petition is dismissed accordingly.
M.N. KRISHNAN, JUDGE.
cl
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M.N. KRISHNAN, J.
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M.A.C.A/A.S/C.R.P.NO.OF
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17th January, 2011.
J U D G M E N T/O R D E R