Can't Invoke Article 226 Jurisdiction For Removal Of Dangerous Trees, Approach SDM U/S 133 CrPC: Kerala High Court
The Kerala High Court recently held that the remedy in case of a tree standing dangerously on any property would be before the Sub Divisional Magistrate under Section 133 of the Code of Criminal Procedure, 1973.Justice Bechu Kurian Thomas explained that the writ jurisdiction under Article 226 of the Constitution could not be invoked for the said purpose. “The jurisdiction under Article 226...
The Kerala High Court recently held that the remedy in case of a tree standing dangerously on any property would be before the Sub Divisional Magistrate under Section 133 of the Code of Criminal Procedure, 1973.
Justice Bechu Kurian Thomas explained that the writ jurisdiction under Article 226 of the Constitution could not be invoked for the said purpose.
“The jurisdiction under Article 226 of the Constitution of India cannot be invoked for the purpose of directing cutting and removal of trees, especially since there is no basic order that has been produced to exercise such a jurisdiction or to allege inaction,” the Court explained.
The petitioners in this case sought the issuance of a direction to cut and remove cut and remove an old teak tree, with signs of decay and hollow section, standing adjacent to the boundary of the property of the 2nd petitioner.
The petitioners averred that they feared danger to their lives and that of the family members. It was submitted that requests before the statutory authorities did not evoke any action. The petitioners further submitted that although an auction had been scheduled to cut and remove the tree, the did not take place since no one turned up, due to which the petitioners were constrained to approach the Court.
The Assistant Conservator of Forest in the written statement submitted that although the Secretary of the Thrissur Corporation had requested for permission to cut and remove the dangerous teak tree, the Local Level Tree Committee constituted by the Government found that only four branches of the tree required to be cut and removed in order to avoid any possible danger.
The Court in this case noted that the petitioners had not approached the Sub Divisional Magistrate under Section 133 of Cr.P.C., and that it was the Tree Committee which took the decision to cut and remove the four branches of the tree.
The Court was thus of the view that if the petitioners were not satisfied with the said decision, they could approach the appropriate authority against the same.
"In the absence of any order produced by the petitioners and in the absence of any order evident from the records produced before this Court directing the cutting and removal of the tree, it is not proper for this Court to exercise the jurisdiction directing the tree to be cut and removed, especially since the Tree Committee states that by cutting and removing the four branches, the danger can be avoided," it observed.
The Court thus granted liberty to the petitioners to approach the statutory authority if they believed the tree to continue to pose danger.
Counsel for the Petitioners: Advocates Bharath Mohan, Tellmy Jolly, N. Krishna Prasad, and Shanes Mather
Counsel for the Respondents: Special Government Pleader T.P. Sajan, and Standing Counsel for Thrissur Municipal Corporation Santhosh P. Poduval
Citation: 2023 LiveLaw (Ker) 640
Case Title: Keerthi Nagar Residents Association & Anr. v. State of Kerala & Ors.
Case Number: WP(C) NO. 26821 OF 2023