Full Judgment
(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the respondents to cut and remove the overhanging trees causing aerial trespass to the petitioner property in Ry.No.619/18A of Karunkal Village, Vilavancode Taluk, Kanyakumari District, within the stipulated time, as fixed by this Court.)
1. Heard both sides.
2. By consent, the main Writ Petition itself is taken up for final disposal.
3. No counter is filed one behalf of Respondent Nos.1 and 2.
4. According to the Petitioner, the Pentecostal Mission Church of Karunkal had purchased the land in R.S.No.619/18A, Karunkal Village, Vilavancode Taluk, admeasuring 52.5 Cents, by means of a registered Sale Deed, dated 07.07.1985. Latter, the compound wall of the Church was constructed in the year 1991 and also Church building was completed during the year 1993, after according sanction by the Authorities, following the requisite formalities.
5. It comes to be known that on the Western boundary margin land belonging to (i) Yovel, (ii). Opeth S/o.David and Northern boundary margin land belonging to Usha Gracy W/o.David Lies. After the construction of the Church compound wall, the aforesaid persons planted Mango, Jack Fruit, Teak wood saplings on the immediate vicinity and boundary line margin of the compound wall. After few years, the saplings grown into trees and the branches are overhanging on the roof of the Church building. The aforesaid trees, in fact, lean over the entire Church building and during rainy season, because of the hurled wind on motion top branches of the trees were broken and many times falling on the roof causing damages etc. The roots of the trees penetrate within the land and under the building and compound wall now have become bulky, causing crack on the building and the compound wall. Apart some portion of the parapets wall and many roof AC sheet were damaged due to the abutting trees leaning over the Church building. In due course, the grown up trees would affect the structural soundness of the building causing serious damages.
6. The grievance of the Petitioner is that he left several representations in the Office of the Respondents, from the year 2012 onwards. Subsequently, he projected a representation, dated 21.06.2016, to the First Respondent (by way of registered post), requesting to cut and remove the overhanging trees, to the Respondents. It appears that the First Respondent had forwarded the complaint to the Second Respondent for submitting a report of the overhanging trees and the damages caused and the same was inspected and a report was also submitted. Further, on the basis of the report, the First Respondent issued proceedings in Na.Ka.No.A3/1963/2016, dated 28.06.2016, for a Mediation between the Petitioner and the tree owners for to cut and remove the trees within 30 days and a copy of the same was served on him. However, the Second Respondent neither initiated any positive action nor cut and removed the trees, as a result thereof, there is an eminent danger to the building and life of the believers causing private and public nuisance. Hence, the Petitioner has filed the present Writ Petition.
7. At this stage, this Court has perused the relief sought for by the Petitioner in the present Writ Petition viz., for passing of an order by this Court in directing the Respondents, to cut and remove the overhanging trees causing aerial trespass to his property in R.S.No.619/18A of Karunkal Village, Vilavancode Taluk, Kanyakumari District, within the time to be determined by this Court.
8. Besides the above, it transpires that the Sub-Collector, Padmanabhapuram in Na.Ka.No.A3/1963/2016, dated 28.06.2016, had issued a Memorandum, addressed to the Second Respondent / Tahsildar, Vilavancode Taluk, Kanyakumari District, mentioning the name of the Writ Petitioner with address, as Petitioner and also pointing out the names of three persons (i) Thiru. Yoves David, (ii). Thiru Opeth Jermi David and (iii) Tmt.Usha Cracy, as Respondents, and also specified the classification of the Trees as (i) Two Mango Trees (ii) Three Mango Trees (iii) One Jack Tree and (iv) Six Teak Wood trees and prayed for taking necessary action, in terms of Section 133 of Cr.P.C. Furthermore, the photo of the trees, the details of trees standing in the ownerships' name, Survey Numbers etc., were also mentioned in the said Memorandum and without fail within 30 days on receipt of the said Memo, the Second Respondent / Tahsildar, Vilavancode Taluk, Kanyakumari District, was directed to take necessary action (with a copy being marked to the Writ Petitioner).
9. The Principal grievance of the Petitioner is that the Second Respondent / Tahsildar, Vilavancode Taluk, Kanyakumari District, has not taken any follow up action pursuant to the Memo, dated 28.06.2016, issued by the Sub-Collector, Padmanabhapuram.
10. Considering the fact that the Sub-Collector had issued the Memo, dated 28.06.2016, addressed to the Second Respondent / Tahsildar, Vilavancode Taluk, Kanyakumari District, requiring the latter to take necessary action and that too, within 30 days without fail, this Court, at this distance point of time, without precipitating the matter any further and also taking note of the prime fact that the trees are in dangerous condition and also they require removal, based on necessity (as stated in the Memo, dated 28.06.2016, by the Sub-Collector, Padmanabhapuram, Kanyakumari District), in the interest of justice and fair play, equity, good-conscience and even as a matter of prudence, directs the Second Respondent / Tahsildar, Vilavancode Taluk, Kanyakumari District, to look into the subject matter in issue, within a period of three days, from the date of receipt of a copy of this order and to take subsequent follow-up action without any deviation or any slackness, in this regard. Furthermore, the Second Respondent is directed to take diligent steps in implementing the orders of Sub-Collector, Padmanabhapuram, dated 28.06.2016, in the subject matter in issue and in this regard, the Second Respondent is not to adapt a lackadaisical attitude or a laissez-faire attitude, he has to bear in mind the precarious / dangerous condition of the hanging-trees in the concerned place and to proceed further, in the manner known to Law and in accordance with Law.
11. With the aforesaid observation(s) and direction(s), the Writ Petition stands disposed of. No costs.