Gopinathan v. District Collector, Palakkad; Peruvambu Grama Panchayat; its Secretary; Venugopal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941** ## **WP(C).No.16048 OF 2019(E)** ## **PETITIONER:** **GOPINATHAN, AGED 59 YEARS, S/O.RAMAN, PANCHANAKOLUMBIL, PALATHULLI, PERUVEMBU P.O., PALAKKAD.** **BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD-678 001.** - **2 THE PERUVAMBU GRAMA PANCHAYAT, PERUVAMBU P.O., PALAKKAD-678 531 REPRESENTED BY ITS SECRETARY.** **3 THE SECRETARY, THE PERUVAMBU GRAMA PANCHAYAT, PERUVAMBU P.O., PALAKKAD-678 531. 4 VENUGOPAL, AGED 70 YEARS, S/O.MADHAVAN, PANCHANAKOLUMBIL, PALATHULLI, PERUVEMBU P.O., PALAKKAD-678 531. R2&R3 BY ADV.SRI.BRIJESH MOHAN R2&R3 BY ADV.SRI.R.RAJPRADEEP R4 BY ADV.SRI.SAJAN VARGHEESE K. R4 BY ADV.SRI.LIJU M.P R1 SRI.HARISH K.P, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16048 OF 2019(E)** -2- ## **JUDGMENT** The petitioner, who is residing at Peruvembu within the jurisdiction of the 2[nd] respondent Grama Panchayat, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 notice dated 04.06.2019 issued by the 3[rd] respondent, who is the Secretary of that Grama Panchayat, whereby he has been directed to cut and remove the branches of the tree standing on his property. Such a notice has been issued based on a complaint made by the 4[th] respondent. 2. On 12.06.2019, when this writ petition came up for consideration, the learned Government Pleader took notice on admission for the 1[st] respondent. Urgent notice on admission was ordered to respondents 2 to 4, returnable within two weeks. The learned Government Pleader was directed to get instructions. 3. A counter affidavit has been filed by respondents 2 and 3, opposing the reliefs sought for in this writ petition. The 4[th] respondent has also filed a detailed counter affidavit. 4. Heard the learned counsel for the petitioner, the **WP(C).No.16048 OF 2019(E)** -3- learned Government Pleader appearing for the 1[st] respondent, the learned counsel for respondents 2 and 3 and also the learned counsel for the 4[th] respondent. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P7 notice dated 04.06.2019 issued by the 3[rd] respondent, in view of the statutory remedy of appeal available under Rule 276 of the Kerala Panchayat Raj Act, before the appropriate forum. 6. In **Joseph V.M. v. Kadanad Grama Panchayat [2019 (3) KHC 545]** this Court held that, the difference which is discernible from the language of sub-section (1) and sub-section (2) of Section 238 of the Act is that, subsection (1) empowers the Village Panchayat to take appropriate measures when any branch or portion of a tree or the fruits of any tree is likely to fall and thereby endanger any person or any structure or any cultivation. Though clause (a) of sub-section (1) contemplates a notice by the Village Panchayat to the owner of the said tree, requiring **WP(C).No.16048 OF 2019(E)** -4- him to secure, lop or cut down the said tree or remove the fruits thereof, so as to prevent any danger therefrom; clause (b) of sub-section (1) empowers the Village Panchayat to secure, lop or cut down the said tree or remove the fruit thereof, etc. before giving notice under clause (a) of subsection (1) or before the period of such notice expire, if immediate action is necessary. On the other hand, subsection (2) of Section 238 empowers the Secretary of the Village Panchayat, without notice, trim or prune any hedge bordering on a public street; cut and trim any hedge or tree overhanging the said street and obstructing it or the view of traffic or cause damage to it; or remove fallen trees on public roads and water ways which obstruct traffic. Paragraphs 5 to 8 of the said decision read thus; “5. Section 238 of the Act deals with precautions in cases of dangerous trees and pruning of hedges and trees. Subsection (1) of Section 238 deals with the powers of a Village Panchayat. As per clause (a) of sub-section (1) of Section 238, if any tree or any branch or portion of a tree or the fruits of any tree be deemed by the Village Panchayat to be likely to fall and thereby endanger any person or any structure or any cultivation, the Village **WP(C).No.16048 OF 2019(E)** -5- Panchayat may, by notice, require the owner of the said tree to secure, lop or cut down the said tree or remove the fruits thereof so as to prevent any danger therefrom. As per clause (b) of sub-section (1), if immediate action is necessary, the Village Panchayat shall itself, before giving such notice or before the period of such notice expires, secure, lop or cut down the said tree or remove the fruit thereof, fence off a part of any street or take such other temporary measures as it thinks fit to prevent danger, and the cost of so doing shall be recoverable from the owner of the tree in the same manner as an arrear of public revenue due on land. As per clause (c) of sub-section (1), if any tree or the branch thereof in the opinion of the Village Panchayat, causes pollution to the drinking water of a well or tank, the Village Panchayat may, by notice, require the owner of such tree to cut down and remove such tree or branch thereof. 6. Sub-section (2) of Section 238 of the Act deals with the power of the Secretary of a Village Panchayat. As per sub-section (2), the Secretary of a Village Panchayat may, without notice, (a) trim or prune any hedge bordering on a public street so that it may not exceed such height from the level of the adjoining roadways as may be provided for this purpose; or (b) cut and trim any hedge or tree overhanging the said trees and obstructing it or the view of traffic or causing damage to it; or (c) remove fallen trees on public roads and waterways which obstruct traffic. 7. The difference which is discernible from the language **WP(C).No.16048 OF 2019(E)** -6- of sub-section (1) and sub-section (2) of Section 238 of the Act is that, sub-section (1) empowers the Village Panchayat to take appropriate measures when any branch or portion of a tree or the fruits of any tree is likely to fall and thereby endanger any person or any structure or any cultivation. Though clause (a) of subsection (1) contemplates a notice by the Village Panchayat to the owner of the said tree, requiring him to secure, lop or cut down the said tree or remove the fruits thereof, so as to prevent any danger therefrom; clause (b) of sub-section (1) empowers the Village Panchayat to secure, lop or cut down the said tree or remove the fruit thereof, etc. before giving notice under clause (a) of subsection (1) or before the period of such notice expire, if immediate action is necessary. On the other hand, subsection (2) of Section 238 empowers the Secretary of the Village Panchayat, without notice, trim or prune any hedge bordering on a public street; cut and trim any hedge or tree overhanging the said street and obstructing it or the view of traffic or cause damage to it; or remove fallen trees on public roads and water ways which obstruct traffic. 8. In the instant case, the proceedings that can be initiated against the petitioner based on the complaint made by the 3[rd] respondent falls under sub-section (1) of section 238 of the Act, which has to be initiated by a notice issued by the Village Panchayat under clause (a) of sub-section (1), if immediate action under clause (b) of sub-section (1) is not warranted. In such **WP(C).No.16048 OF 2019(E)** -7- circumstances, conclusion is irresistible that Ext.P2 notice issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Panchayat, is one issued absolutely without any authority of law.” 7. In view of the law laid down in the decision referred to _supra_ , if the tree standing on the petitioner's property is overhanging a public street, the 2[nd] respondent Secretary has the power to invoke the provisions under sub-section (2) of Section 238 of the Kerala Panchayat Raj Act. 8. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without **WP(C).No.16048 OF 2019(E)** -8- availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 9. In **Authorised Officer, State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in **Chaabil Das Agarwal's case (supra)** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the **WP(C).No.16048 OF 2019(E)** -9- principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 10. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very **WP(C).No.16048 OF 2019(E)** -10- amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a **WP(C).No.16048 OF 2019(E)** -11- petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 11. In **Titaghur Paper Mills' case (supra)** a ThreeJudge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in ## **Wolverhampton New Water Works Co. v. Hawkesford** **[(1859) 6 CBNS 336]** at page 356 in the following passage: "There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute **WP(C).No.16048 OF 2019(E)** -12- must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in **Neville v. London Express Newspaper Ltd.[1919 AC 368]** and has been reaffirmed by the Privy Council in **Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 12. In **Pavithran V. State of Kerala (2009 (4) KHC 4)** , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 13. In view of the law laid down in the decisions referred to _supra_ , conclusion is irresistible that when the petitioner is having a statutory remedy of appeal under the provisions of Section 276 of the Kerala Panchayat Raj Act, he **WP(C).No.16048 OF 2019(E)** -13- cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging Ext.P7 notice, on the grounds raised in this writ petition. In the result, the writ petition filed on 14.08.2019, fails for the aforesaid reasons and the same is accordingly dismissed; however, without prejudice to the right of the petitioner to invoke the statutory remedy, before the appropriate forum. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No.16048 OF 2019(E)** -14- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 16.06.2015.** - **EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 22.05.2015 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 20.02.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 24.01.2019 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 12.07.2018 ISSUED BY THE VILLAGE OFFICER, PERUVAMBU.** - **EXHIBIT P6 TRUE COPY OF THE O.S.NO.261/2019 ON THE FILE OF THE COURT OF MUNSIFF AT PALAKKAD DATED 07.06.2019.** **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION NO.A4388/2019 DATED 04.06.2019 ISSUED BY THE 3RD RESPONDENT.** **RESPONDENTS' EXHIBITS:** - **EXHIBIT R3(A) TRUE COPY OF THE LETTER DATED 08.02.2018 OF THE 2ND RESPONDENT TO THE PETITIONER AND THE 4TH RESPONDENT.** **EXHIBIT R3(B) TRUE COPY OF THE REPORT OF THE MEETING DATED 19.02.2018.** - **EXHIBIT R3(C) TRUE COPY OF THE LETTER DATED 28.02.2018 OF THE PETITIONER TO THE 2ND RESPONDENT.** **EXHIBIT R3(D) TRUE COPY OF THE RESOLUTION OF THE RESPONDENT PANCHAYATH DATED 22.09.2018.** **WP(C).No.16048 OF 2019(E)** -15- **EXHIBIT R3(E) TRUE COPY OF THE FIELD MEASUREMENT BOOK.** **EXHIBIT R3(F)** **TRUE COPY OF THE BASIC TAX REGISTER PERUVEMB VILLAGE.** **EXHIBIT R3(G)** **TRUE COPY OF THE REPORT OF THE TALUK SURVEYOR,PALAKKAD DATED 09.02.2016 ALONG WITH SKETCH.** **EXHIBIT R4(A) TRUE COPY OF THE SKETCH, A PART OF THE ADVOCATE COMMISSIONER'S REPORT FILED IN EXHIBIT P6 SUIT.** **EXHIBIT R4(B)** **TRUE COPY OF THE COMMUNICATION DATED 9.2.2016 ALONG WITH THE SKETCH SUBMITTED BY THE TALUK SURVEYOR, PALAKKAD TO THE ADDITIONAL THAHSILDAR PALAKKAD.** **EXHIBIT R4(C) TRUE COPY OF THE RESOLUTION DATED 22.9.2018 PASSED BY THE 2ND RESPONDENT.** **EXHIBIT R4(D) TRUE COPY OF THE COMMUNICATION DATED 13.2.2019.**