IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 3622 of 2000(F)
1. MONIYAMMA
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.K.S.ROCKEY
For Respondent :SRI.JOHNSON P.JOHN
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :07/03/2008
O R D E R
P.N.RAVINDRAN,J.
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O.P. NO.3622 OF 2000
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Dated this the 7th day of March 2008
JUDGMENT
A parcel of land, 1 hectare in extent, situated Sy.No.77/1 of
KDH Village, was assigned to the petitioner’s husband – late
Soman under the provisions of the Kannan Devan Hills
(Reservation and Assignment of Vested Lands) Rules 1977
(hereinafter referred to as ‘the Rules’ for short). The petitioner’s
husband had put up a residential building therein.
2. The proprietary right over the trees standing in the lands
assigned to the petitioner’s husband stood vested in the State
Government. Rule-18 of `the `Rules’, however permitted the
assignee to purchase the trees on payment of the value at the
prevailing seigniorage rates. In terms of Rule-18, the petitioner’s
husband submitted an application dated 4.10.1995 to the District
Collector for permission to cut and remove the trees standing in
his property. Repeated requests for permission to cut and remove
the trees on payment of seigniorage value did not meet with
success. The petitioner’s husband thereupon filed O.P.No.19933
O.P.3622/2000 2
of 1996 in this Court along with four other persons, who had filed
similar applications under the Rules. By Ext.P3 judgment
delivered on 15.1.1997, this Court directed the second
respondent – the District Collector to consider the applications
filed by the petitioner and others and to pass appropriate orders
thereon, within a period of two months from the date of receipt
of a copy of the judgment. The petitioner has stated that a
certified copy of Ext.P3 judgment was furnished to the second
respondent on 5.2.1997 and that for not complying with the
directions therein, the petitioner’s husband had filed CCC No.309
of 1997 in this Court against the third respondent, who was then
holding office as the District Collector of Idukki District. The
petitioner has further stated that with a view to cover up the
latches and negligence on his part in complying with the
directions in Ext.P3, the third respondent rejected the application
submitted by the petitioner’s husband as per Ext.P5 proceedings
dated 29.9.1997 and filed Ext.P4 counter affidavit in CCC No.309
of 1997 stating that on local inspection, it was found that the
trees standing in the lands belonging to the petitioner’s husband
do not pose a threat to the crops or the house erected therein. It
O.P.3622/2000 3
is submitted that based on Ext.P4, the contempt of court case
was closed. The petitioner has further stated that on 1.7.1998, a
huge tree fell on the top of the house resulting in the death of the
petitioner’s husband and serious injuries to her. She thereafter
filed Ext.P6 representation dated 15.8.1999 before the Hon’ble
the Chief Minister seeking payment of damages and also for
taking appropriate action against the third respondent – the then
District Collector Idukki. The petitioner has, in this Original
Petition filed on 2.2.2000 prayed for the following reliefs:
i) call for the records relating to
Ext.P5;
ii) issue a writ of mandamus or any
other writ, order or direction to the first
respondent to order an enquiry on the
circumstances on which Ext.P5 was
passed by the third respondent and to
take appropriate action against the
third respondent;
iii) issue a writ of mandamus or any
other writ, order or direction to the
respondents to give expert and
specialist treatments at the expenses of
the respondents;
iv) issue a writ, order or direction to
the respondents to give ten lakhs
rupees to compensate the calamity
which was occurred due to the laches,O.P.3622/2000 4
negligence, dereliction and irresponsible
rash act of the third respondent;
v) issue a writ of mandamus or any
other writ, order or direction to the 2nd
respondent to take urgent steps to cut
trees which are standing dangerously to
the life, property and crops of the
petitioner;
3. A counter affidavit has been filed on behalf of the first
respondent, wherein it is stated that the petitioner’s husband had
applied for cutting and removing 63 trees from the lands
assigned to him stating that they are dangerous to the standing
crops, the house and also to human life. It is also stated in the
counter affidavit that the other petitioners in O.P.No.19933 of
1996 had applied for cutting and removing 181 trees and that
the applications filed by the petitioners in the said Original
Petition related to 244 trees in all. It is further stated in the
counter affidavit that as the cutting and removal of such a large
number of trees would have led to ecological imbalance in the
locality, the District Collector decided to inspect the site and that
on such inspection, it was found that the trees do not pose any
danger to the standing crops or to the residential building or to
human life and that the applications filed by the petitioner and
O.P.3622/2000 5
others were therefore rejected. The counter affidavit proceeds to
state that when the land was assigned to the petitioner in the
year 1995, he did not have the financial ability to pay the
seigniorage value and that his subsequent conduct in seeking
permission to cut and remove 63 trees discloses that the
application was filed at the instance of timber merchants. It is
further stated in the counter affidavit that in the monsoon of
1998, there was extensive natural calamity in the State of Kerala
and that one tree standing in the lands assigned to the
petitioner’s husband fell down resulting in the death of Soman
and caused injuries to the petitioner. The counter affidavit
further proceeds to state that the said incident was a natural
calamity and did not happen due to the negligence or dereliction
of duty on the part of the State or its officers. It is also stated
that financial assistance to the tune of Rs.75,000/= was
sanctioned and disbursed to the petitioner. The third respondent,
the then District Collector, Idukki has also filed a counter affidavit
denying and disputing the claims and contentions of the
petitioner. The third respondent has also stated that in the
monsoon of 1998, a large number of persons died in the State of
O.P.3622/2000 6
Kerala, especially in Idukki District and that tree standing in the
lands assigned to the petitioner’s husband was uprooted in the
heavy rains that lashed Idukki District.
4. I heard Sri.Augustine Joseph, the learned counsel
appearing for the petitioner, Sri.K.Sandesh Raja, the learned
Government Pleader appearing for respondents 1 and 2 and
Sri.Johnson P.John, the learned counsel appearing for the third
respondent. The learned counsel appearing for the petitioner
submitted that it was solely on account of the negligence on the
part of the third respondent, in complying with the directions
issued in Ext.P3 judgment that the tree could not be cut and
removed before it fell down on 1.7.1998. The learned counsel for
the petitioner submitted that Ext.P5 order was passed rejecting
the application filed by the petitioner’s husband for permission to
cut and remove the dangerous trees standing in the lands
assigned to him solely on account of malice and that the third
respondent was motivated by extraneous considerations in
turning down the request made by the petitioner’s husband. The
learned counsel for the petitioner submitted that if the third
respondent had acted expeditiously and complied with the
O.P.3622/2000 7
directions in Ext.P3 judgment in time and had also granted the
permission sought by the petitioner’s husband to cut and remove
the dangerous trees, the petitioner’s husband would not have
succumbed to the injuries sustained by him on 1.7.1989 when
the tree fell down on the house and that the petitioner also would
not have suffered any injuries in the said incident.
5. Per contra, the learned counsel appearing for the
respondents submitted that it was on account of reasons beyond
the control of the respondents that the tree fell on the top of the
petitioner’s house resulting in the death of the petitioner’s
husband and causing injuries to the petitioner. The learned
Government Pleader appearing for the respondents further
contended that from the very nature of the request made by the
petitioner’s husband and the large number of trees involved, it is
evident that the petitioner’s husband and the other petitioners in
O.P.No.19933 of 1996 had been put forward by influential
timber merchants.
6. I have considered the rival contentions. It is evident from
the averments made in paragraph-7 of the counter affidavit filed
by the first respondent that there was a very clever attempt on
O.P.3622/2000 8
the part of the petitioner’s late husband and other petitioners in
O.P.No.19933 of 1996 to cut and remove a large number of trees
under the pretext that they pose a danger to human life, standing
crops and to their houses. It is seen from the averments in the
counter affidavit that they had jointly applied for cutting and
removing 244 trees. It is not clear whether the tree that fell
down on the top of the petitioner’s house on 1.7.1998 was one
among the 63 trees in respect of which the petitioner had
submitted an application under Rule 18 of the Rules. Rule 18
does not refer to cutting and removal of dangerous trees. In any
case, it is borne out by the counter affidavit filed by the
respondents that the tree fell in the heavy rains that lashed the
State in the night of 30th June 1998, and that the respondents
cannot be held liable for the mishap that occurred on 1.7.1988. It
is seen from Ext.P2 Newspaper report produced by the petitioner
that in Idukki District alone 300 houses were damaged, 60
houses were completely destroyed and thousands of trees were
uprooted and a large number of persons met with untimely
death in the heavy rains that lashed the State in June 1998. The
counter affidavit also discloses that a sum of Rs.75,000/- was
O.P.3622/2000 9
paid to the petitioner from the State funds by way of financial
assistance. On the materials available in the case, I am not
persuaded to agree with the contention of the learned counsel
for the petitioner that it was on account of the latches and
negligence on the part of the third respondent that the tree fell
on top of the petitioner’s house on 1.7.1998. In that view of the
matter, I hold that the petitioner is not entitled to any of the
reliefs prayed for in this Original Petition. The petitioner has not
chosen to challenge Ext.P5 in these proceedings. The petitioner
cannot take advantage of the natural calamity to assail Ext.P5
indirectly and collaterally and seek reliefs against the
respondents.
In the result, the Original Petition fails and it is dismissed.
No costs.
P.N.RAVINDRAN, JUDGE
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