Lakshmeesan Menon v. Mulakkulam Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941** ## **WP(C).No.15802 of 2019** ## **PETITIONER/S:** **LAKSHMEESAN MENON, SOUPARNIKA HOUSE, MULAKKULAM SOUTH P.O., MULAKKULAM686 610.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENT/S:** - **1 THE MULAKKULAM GRAMA PANCHAYAT, PERUVA P.O., KOTTAYAM DISTRICT-686 610, REPRESENTED BY SECRETARY.** - **2 THE SECRETARY, THE MULAKKULAM GRAMA PANCHAYAT, PERUVA P.O., KOTTAYAM DISTRICT-686 610.** - **3 SEEMANTHINI AMMA, W/O.M.K.KRISHNAN NAIR, MANGARAPUTHENPURAYIL, MULAKKULAM SOUTH P.O., KOTTAYAM DISTRICT-686 610.** **BY ADVS. SRI.ALEX.M.SCARIA SMT.A.SREEKALA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.C.15802/2019 2 ## **JUDGMENT** The petitioner, who is residing in a residential building bearing No.1/237 of Mulakkulam Grama Panchayat, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent to take appropriate steps to cut and remove a Tamarind tree as well as an Anjily tree standing in the property of the 3[rd] respondent, which is causing pollution to the drinking water source of the petitioner (the well situated in the property of the petitioner) by resorting to the powers conferred upon the 2[nd] respondent under Section 238 of the Kerala Panchayat Raj Act, 1994. 2. Going by the averments in the writ petition, there is a well at the northern side of the petitioner's residential building, which is the drinking water source of the petitioner. The well is near the boundary, at the eastern side of the property. The 3[rd] respondent, who is the neighbouring owner had planted certain trees like Tamarind tree and Anjily tree. The case of the petitioner is that, the well water is being polluted due to frequent deposit of leaves and branches from W.P.C.15802/2019 3 the tree standing in the property of the 3[rd] respondent. By Ext.P5 communication of the Revenue Divisional Officer, Pala, the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayath, has been requested to take necessary action on the complaint made by the petitioner, against the 3[rd] respondent, since it falls within the purview of Section 238 of the Kerala Panchayat Raj Act. On receipt of Ext.P5, the 2[nd] respondent has issued Ext.P6 notice dated 30.04.2019 to the 3[rd] respondent, which is followed by Ext.P7 notice dated 18.05.2019, whereby the 3[rd] respondent has been asked to cut and remove certain branches of the trees standing on the boundary. 3. On 11.06.2019, when this writ petition came up for admission urgent notice on admission by speed post was ordered to the respondents. 4. On 26.08.2019, when this writ petition came up for consideration, the 3[rd] respondent entered appearance through counsel and sought time to file counter affidavit. 5. Heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2 and also the learned counsel for the 3[rd] respondent. W.P.C.15802/2019 4 6. The sole issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for any reliefs, on the strength of Exts.P6 and P7 notices issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat, in exercise of the powers under Section 238 of the Kerala Panchayat Raj Act. 7. 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, 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 sub-section (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 W.P.C.15802/2019 5 down the said tree or remove the fruit thereof, etc. before giving notice under clause (a) of sub-section (1) or before the period of such notice expire, if immediate action is necessary. On the other hand, sub-section (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. Sub-section (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 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 W.P.C.15802/2019 6 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 subsection (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 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 W.P.C.15802/2019 7 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 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 sub-section (1) or before the period of such notice expire, if immediate action is necessary. On the other hand, sub-section (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 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.” W.P.C.15802/2019 8 8. In view of the law laid down by this Court in **Joseph's case (supra)** , any action based on the complaint made by the petitioner against the 3[rd] respondent, regarding the trees standing on the property of the said respondent, which allegedly pollutes well water in the petitioner's property, has to be taken by the Village Panchayat, in exercise of its powers under sub-section (1) of Section 238 of the Kerala Panchayat Raj Act. 9. The learned Standing Counsel for the 1[st] respondent Grama Panchayat would submit that the Village Panchayat shall issue a notice to the petitioner and also to the 3[rd] respondent, based on the complaint made by the petitioner, invoking its powers under sub-section (1) of Section 238 of the Kerala Panchayat Raj Act and thereafter, finalise that proceedings after affording an opportunity of being heard to the petitioner and also the 3[rd] respondent. 10. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed by directing the Village Panchayat to consider the complaint made by the petitioner against the 3[rd] respondent, invoking its powers under sub-section (1) of Section 238 of the W.P.C.15802/2019 9 Kerala Panchayat Raj Act and take appropriate decision, with notice to the petitioner and also to the 3[rd] respondent, taking note of the law laid down by this Court in the decision referred to supra, as expeditiously as possible, at any rate within a period of three weeks from the date of receipt of a certified copy of this judgment. **Sd/-** **ANIL K.NARENDRAN, JUDGE** DG W.P.C.15802/2019 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** - **TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 08.06.2017** - **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 27.06.2017 BY THE 2ND RESPONDENT TO THE PETITIONER** - **EXHIBIT P3 TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, MULAKKULAM TO HE REVENUE DIVISIONAL OFFICER, PALA** - **EXHIBIT P4 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER DATED 03.12.2018 BEFORE THE VILLAGE OFFICER, PERUVA** **EXHIBIT P5** - **TRUE COPY OF THE COMMUNICATION VIDE NO M1/163/19/L.DIS TO THE 2ND RESPONDENT BY THE REVENUE DIVISIONAL OFFICER** - **EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 30.04.2019 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT** **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 18.05.2019 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT**