M. Devadas Nayak v. Manjeshwara Grama Panchayat & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941** ## **WP(C).No.15652 of 2019** ## **PETITIONER :** **M.DEVADAS NAYAK, AGED 82 YEARS S/O. M. PANDU NAYAK, RESIDING AT SUBHADRA NILAYA, NEAR S.A.T. HIGH SCHOOL, POST MANJESHWAR, MANJESHWAR TALUK, KASARAGOD DISTRICT, PIN - 671 323** **BY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJINIE SMT.S.SUDHA (ERNAKULAM) SRI.M.ASHOK KINI** ## **RESPONDENTS:** - **1 THE MANJESHWAR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, MANJESHWAR P. O., KASARAGOD DISTRICT, KERALA, PIN - 671 323** - **2 THE SECRETARY, MANJESHWAR GRAMA PANCHAYATH, KASARAGOD DISTRICT, KERALA, PIN - 671 323** - **3 MOOSA KUNHI, S/O. M. P. MOIDEEN, RESIDING AT HOSABETTU, POST MANJESHWAR, MANJESHWAR TALUK, KASARAGOD DISTRICT, PIN - 671 323** - ***ADDL. R4 DIRECTOR OF PANCHAYATS, DIRECTORATE OF PANCHAYATS, PUBLIC OFFICE BUILDING, MUSEUM P.O, THIRUVANANTHAPURAM, PIN 695 033. IS SUO MOTU IMPLEADED AS PER ORDER DATED 03/07/2019 IN WPC 15652/2019.** **BY ADVS. SRI.DEEPU THANKAN SMT.LAKSHMI SREEDHAR** **BY SRI HARISH K.P- SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15652 of 2019** **2** ## **JUDGMENT** The petitioner, who is the owner of a building bearing No.XV-26, 27 and 28 of the 1[st] respondent Grama Panchayat, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to implement Ext.P4 order dated 19.02.2019 issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat, whereby the 3[rd] respondent, who is the neighbouring property owner, is required to cut and remove within seven days, the branches of a mango tree protruding into the petitioner's property and building and also to cut and remove the coconut tree causing nuisance and damage to his building on account of falling of coconuts on the tiles. 2. On 10.06.2019, when this writ petition came up for admission, this Court issued urgent notice on **WP(C).No.15652 of 2019** **3** admission by speed post to the respondents, returnable within three weeks. 3. On 03.07.2019, when this writ petition came up for consideration, this Court noticed that in view of the decision in _**Joseph v. Kadanad Grama Panchayat [2019 (3) KHC 545]**_ , exercise of power under sub-section (1) of Section 238 of the Kerala Panchayat Raj Act, 1994 can only be by the Village Panchayat and not by the Secretary of the Grama Panchayat. Having considered the submissions made by the learned counsel for the petitioner and also the learned Standing Counsel for respondents 1 and 2, this Court deemed it appropriate to implead the Director of Panchayats as additional 4[th] respondent. 4. Heard the learned counsel for the petitioner, the learned Standing Counsel for the respondent Grama Panchayat representing respondents 1 and 2 and also the learned Senior Government Pleader appearing for the additional 4[th] respondent. **WP(C).No.15652 of 2019** **4** 5. The sole issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for a writ of mandamus commanding respondents 1 and 2 to implement Ext.P4 order dated 19.02.2019 of the 2[nd] respondent Secretary. 6. In _**Joseph's case (supra)**_ , 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 **WP(C).No.15652 of 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 judgment 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 S.238 deals with the powers of a Village Panchayat. As per clause (a) of sub-section (1) of S.238, if any tree or any branch or portion of a tree or the fruits of any tree deemed by the Village Panchayat to be likely to fall and thereby endanger any person or any structure or **WP(C).No.15652 of 2019** **6** 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 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 S.238 of the Act deals with the power of the Secretary of a Village Panchayat. As per sub-section (2), **WP(C).No.15652 of 2019** **7** the Secretary of a Village Panchayat may, without notice, (a) trim or prune any hedge bordering on a public street so that it may notice 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 subsection (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 subsection (1) empowers the Village **WP(C).No.15652 of 2019** **8** 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 S.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 **WP(C).No.15652 of 2019** **9** 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, exercise of power under sub-section (1) of Section 238 of the Act can be exercised only by the Village Panchayat and not by the Secretary of the Panchayat. In the instant case, Ext.P2 complaint made by the petitioner dated 20.12.2018 squarely falls within the purview of sub-section (1) of Section 238 of the Act. Therefore, such a request can be considered only by the Village Panchayat constituted under clause (a) of sub-section (1) of Section 4 of the Kerala Panchayat Raj Act, 1994. 8. In **Bihar Eastern Gangetic Fishermen** **Cooperative Society Ltd. v. Sipahi Singh [(1977)** **4 SCC 145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of **WP(C).No.15652 of 2019** **10** that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus; _"_ _**15.** .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodiancum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been_ **WP(C).No.15652 of 2019** **11** _shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." (underline supplied)_ 9. In **Oriental Bank of Commerce v. Sunder** **Lal Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, **WP(C).No.15652 of 2019** **12** specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus; _"_ _**11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. :_ _**Note 187** .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed._ **WP(C).No.15652 of 2019** **13** _**Note 192** .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty._ _**Note 196** .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is_ **WP(C).No.15652 of 2019** **14** _classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances._ _**Note 206** .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action._ _**12.** These very principles have been adopted in our country. In_ _**Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149]** , after referring to the earlier decisions in_ _**Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** ,_ _**Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and_ _**Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed as follows_ **WP(C).No.15652 of 2019** **15** ## _in paragraph 15 of the reports:_ _"15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution_ **WP(C).No.15652 of 2019** **16** _and the High Court was not competent to issue the same."_ _Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] March, 2000 and apply RBI guidelines to their case."_ 10. In **State of U.P. v. Harish Chandra** **[(1996) 9 SCC 309]** the Apex Court held that, u nder the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something **WP(C).No.15652 of 2019** **17** ## which is contrary to law. Paragraph 10 of the said decision reads thus; _"_ _**10.** Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year_ **WP(C).No.15652 of 2019** **18** _and the rights, if any, of persons included in the list did not subsist. ......."_ 11. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. Vide: **State of Punjab v. Renuka Singla [(1996) 8 SCC 90]** , **State of U.P. v. Harish Chandra [1996 (9) SCC 309]** , **Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453]** , **University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264]** and **Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560]** . 12. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, when Ext.P4 order is one issued by the 2[nd] **WP(C).No.15652 of 2019** **19** respondent Secretary of the Grama Panchayat absolutely without any authority of law, respondents 1 and 2 cannot be directed by way of a writ of mandamus to implement the same. 13. The learned Standing Counsel for respondents 1 and 2 would submit that the 2[nd] respondent shall recall Ext.P4 order dated 19.02.2019 and thereafter, the Village Panchayat shall consider Ext.P2 complaint made by the petitioner, invoking the provisions under sub-section (1) of Section 238 of the Act, with notice to the petitioner and also to the 3[rd] respondent. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; i) The 2[nd] respondent shall recall Ext.P4 order dated 19.02.2019, since the said order is one issued by the 2[nd] respondent absolutely without any authority of law. ii) Thereafter, the Village Panchayat shall **WP(C).No.15652 of 2019** **20** consider Ext.P2 complaint made by the petitioner and take an appropriate decision thereon, invoking powers under sub-section (1) of Section 238 of the Act, with notice to the petitioner and also to the 3[rd] respondent and after affording them an opportunity of hearing. - iii) A decision in this regard shall be taken, 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** AV/11/7 **WP(C).No.15652 of 2019** **21** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE PHOTOCOPY OF THE CONCESSION CERTIFICATE ISSUED BY THE ASSISTANT SURGEON OF THE COMMUNITY HEALTH CENTRE** **EXHIBIT P2** **THE PHOTOCOPY OF THE COMPLAINT DATED 20.12.2018, SUBMITTED BY THE PETITIONER, ALONG WITH THE ACKNOWLEDGEMENT RECEIVED FROM THE FIRST RESPONDENT** **EXHIBIT P3** **THE PHOTOCOPY OF THE HEARING NOTICE DATED 22.01.2018** **EXHIBIT P4** **THE PHOTOCOPY OF THE ORDER DATED 19.02.2019 PASSED BY THE SECOND RESPONDENT**