RadhaKrishnan v. Vilappil Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941** ## **WP(C).No.16187 of 2019** ## **PETITIONER :** **RADHAKRISHNAN,AGED 42 YEARS** **S/O.LATE SASIDHARAN NAIR, HAVING PERMANENT RESIDENCE AT PULINKODE PUTHEN VEEDU, VILAPPIL VILLAGE, KARODE MURI, VILAPPIL P.O., THIRUVANANTHAPURAM-695573, NOW RESIDING AT T.C.42/466(2), JAI KRISHNA, PARAMBIL JUNCTION, SREEVARAHAM, VALLAKADAVU P.O., THIRUVANANTHAPURAM-695008.** **BY ADVS. SRI.AYYAPPAN SANKAR SRI.JAYAN JOHN SMT.S.HRIDYA** ## **RESPONDENTS:** - **1 THE SECRETARY, VILAPPIL GRAMA PANCHAYAT, VILAPPIL GRAMA PANCHAYAT OFFICE, PEYAD, THIRUVANANTHAPURAM695573.** **2 SUNITHA, AGED ABOUT 35 YEARS D/O.VASANTHA, PULINKODE PUTHEN VEEDU, VILAPPIL VILLAGE, KARODE MURI, VILAPPIL P.O., THIRUVANANTHAPURAM-695573.** **3 VILAPPIL GRAMA PANCHAYAT COMMITTEE, REPRESENTED BY THE PRESIDENT, VILAPPIL GRAMA PANCHAYAT, VILAPPIL GRAMA PANCHAYAT OFFICE, PEYAD, THIRUVANANTHAPURAM-695573.** **BY ADVS. SRI.ANIL KUMAR M.SIVARAMAN SMT. DIVYA RANI K. SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.G.P.SHINOD SRI.RAM MOHAN.G.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16187 of 2019** **2** ## **JUDGMENT** The petitioner is stated to be the owner of 5 cents of property in Re-Survey No.128/2017 in Vilappil Village and 2[nd] respondent is the owner of the neighbouring property. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 notice dated 09.08.2018 issued by the 1[st] respondent, who is the Secretary of the Vilappil Grama Panchayat, whereby he has been asked to cut and remove a coconut tree standing in his property and such notice has been issued based on a complaint made by the 2[nd] respondent. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to refrain from abusing his authority, at the instance of the 2[nd] respondent, and from usurping powers vested with the 3[rd] respondent Village Panchayat under Section 238 of the Kerala Panchayat Raj Act, 1994; and a writ of **WP(C).No.16187 of 2019** **3** mandamus commanding the 3[rd] respondent to take urgent decision on Ext.P5 representation, expeditiously after ascertaining the facts. 2. On 14.06.2019, when this writ petition came up for admission, this Court issued urgent notice on admission by special messenger to respondents returnable by 19.06.2019. 3. On 19.06.2019, when this writ petition came up for consideration, the same was adjourned to 21.06.2019 for further consideration. 4. On 21.06.2019, respondents 1 and 3 entered appearance through counsel. Despite service of notice, none appeared for the 2[nd] respondent. The learned counsel for the petitioner sought adjournment to produce certain additional documents and the learned Standing Counsel for the Grama Panchayat sought time to file counter affidavit. 5. Heard the learned counsel for the petitioner, the learned Standing Counsel for Vilappil Grama Panchayat, **WP(C).No.16187 of 2019** **4** representing respondents 1 & 3, and also the learned counsel for the 2[nd] respondent. 6. The learned counsel for the 2[nd] respondent would point out that subsequent to the issuance of Ext.P3 notice dated 09.08.2018, the 2[nd] respondent had approached the Sub Divisional Magistrate, Nedumangad, invoking the provisions under Section 133 of the Code of Criminal Procedure and the Sub Divisional Magistrate has already issued provisional order No.M.C-20/19 dated 07.03.2019, whereby the petitioner has been asked to cut and remove one coconut tree and two tamarind trees within 14 days from the date of receipt of that order and to submit objection, if any, on 17.04.2019. The Sub Divisional Magistrate has later confirmed the said order by order No.M.C-881/18 dated 23.03.2019. The learned counsel would submit that, it is suppressing the said proceedings before the Sub Divisional Magistrate that the petitioner has approached this Court in this writ **WP(C).No.16187 of 2019** **5** petition, challenging Ext.P3 notice dated 09.08.2018 issued by the 1[st] respondent Secretary of the Grama Panchayat. 7. The learned counsel for the petitioner would submit that, as per the instructions received, the petitioner has already challenged the said order of the Sub Divisional Magistrate by filing a revision petition. 8. This Court need not go into those issues in this writ petition since the challenge made in this writ petition is against Ext.P3 notice dated 09.08.2018 issued by the 1[st] respondent Secretary of the Grama Panchayat, invoking the provisions under Section 238 of the Kerala Panchayat Raj Act, 1994. ## 9. In **Joseph v. Kadanad Grama Panchayat** ## **[2019 (3) KHC 545]** this Court held as follows: “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 **WP(C).No.16187 of 2019** **6** 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 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.“ 10. As held by this Court in the decision referred **WP(C).No.16187 of 2019** **7** to supra, exercise of power under sub-section (1) of Section 238 of the Kerala Panchayath Raj Act can only be by the Village Panchayath and not by the Secretary of the Grama Panchayath. In such circumstances, this writ petition is disposed of setting aside Ext.P3 notice dated 09.08.2018 issued by the 1[st] respondent Secretary of the Grama Panchayat, for the aforesaid reason. It is made clear that this judgment will not stand in the way of the Village Panchayat initiating appropriate proceedings against the petitioner, invoking the provisions under sub-section (1) of Section 238 of the Kerala Panchayat Raj Act or the 2[nd] respondent pursuing further proceedings initiated under the provisions of Code of Criminal Procedure, before the Sub Divisional Magistrate. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/2/7 **WP(C).No.16187 of 2019** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF NOTICE DATED 4.8.2017 ISSUED BY 1ST RESPONDENT.** **EXHIBIT P2 TRUE PHOTOCOPY OF PLAINT IN O.S.NO.1596/2018 PENDING ON THE FILES OF MUNSIFF'S COURT, THIRUVANANTHAPURAM.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE NOTICE DATED 9.8.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE PHOTOCOPY OF RECEIPT DATED 11.6.2019 ISSUED FROM THE OFFICE OF VILAPPIL GRAMA PANCHAYAT.** **EXHIBIT P5 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 11.6.2019 BEFORE THE 3RD RESPONDENT.** **EXHIBIT P6 TRUE RECEIPT DATED 11.6.2019 ISSUED BY 3RD RESPONDENT.**