ROSLI v. KIZHAKKANCHERRY GRAMA PANCHAYAT

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **WP(C).No.13078 OF 2020(H)** ## **PETITIONER:** **ROSLI, AGED 78 YEARS, W/O. LATE P.I. VARGHESE, PATHIYAN HOUSE, THACHAKKODE, ELAVAMPADAM P.O. PALAKKAD.** **BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS:** - **1 KIZHAKKANCHERRY GRAMA PANCHAYAT, KIZHAKKANCHERRY P.O. ALATHUR, PALAKKAD 678 508.** - **2 THE SECRETARY, THE KIZHAKKENCHERRY GRAMA PANCHAYAT, KIZHAKKANCHERRY P.O., PALAKKAD 678 508.** - **3 MANOHARAN, AGED 65 YEARS, S/O. UNNIKRISHNAN, THACHAKKODE, ELAVAMPADAM P.O. ALATHUR, PALAKKAD 678 684.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13078 OF 2020** **2** ## **ALEXANDER THOMAS, J.** ## **======================= W.P.(C) No. 13078 of 2020 ======================= Dated this the 2[nd] day of July, 2020** ## **J U D G M E N T** The case set up in this Writ Petition (Civil) is as follows: _That the petitioner is a retired school teacher residing along with her famit at Elavampadam for last so many years which is situated under the territorial limits of 1[st] respondent Panchayat. The petitioner also had a rubber estate at Thachakkode wherein the 3[rd] respondent is sharing his boundary with the petitioner's property. The 3[rd] respondent in retaliation to the above complaints, filled frivolous complaints before the RDO, Palakkad though no jurisdiction to entertain such complaints u/s 133 of the Cr.P.C., passed an order on the basis of an enquiry conducted by the Tahsildar, Alathur directing the 2[nd] respondent to take steps under Section 238 of Panchayat Raj Act. It is further submitted that the petitioner was not aware of any such enquiry conducted by the Tahsildar, Alathur. Now the 2[nd] respondent has issued Ext.P2, order directing to cut and remove the branches of rubber trees standing 3 meters away from the boundary of the 3[rd] respondent. Apart from that the 2[nd] respondent cannot issue any_ **WP(C).No.13078 OF 2020** **3** _such direction without being duly authorized by 1[st] respondent through a resolution._ It is in the light of the above averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers : _i). Issue a writ of certiorari or any other writ order or direction and quash Ext.P2, Order No. A31800/2020 dated 05.06.2020 issued by the 2[nd] respondent._ _ii) Issue a writ of mandamus or any other order or direction direct the 2[nd] respondent to consider and pass appropriate orders on the Ext.P3, reply filled by the petitioner after affording the petitioner an opportunity of hearing in the above matter._ _iii) Issue such other writ, order or direction which this Hon'ble Court may deem fit and proper in the light of the facts and circumstances of the case so as to secure the ends of justice._ 2. Heard Sri. Johnson Varikkappallil, learned counsel appearing for the petitioner. In the nature of the orders proposed to be passed in this writ petition, notice to the 1[st] and 2[nd] respondents (the Kizhakkencherry Grama Panchayat) and contesting respondent No. 3, will stand dispensed with. 3. The petitioner challenges Ext. P2 order dated 05.06.2020, issued by the 2[nd] respondent-Secretary of the Kizhakkencherry Grama Panchayat, purportedly in exercise of powers under Section 238 of the Kerala Panchayat Raj Act, directing him to cut and remove the tree in question lying his property based on the complaints of the 3[rd] respondent. The **WP(C).No.13078 OF 2020** **4** petitioner would pointed out that, the said decision Ext. P2 has been rendered, without affording reasonable opportunity of being heard to the petitioner and further that, even copy of the letter of the RDO as well as reports in Tahasildar referred to item No. 1 and 2 has not been given to the petitioner. Even though, the basis of adverse action are those proceedings. Further that, it is well settled by a series of affording this Court as in **[Thankamma v. Ezhumattur Grama Panchayat (** _**2001 KHC 462) and Joseph V.M. v. Kadanad Grama Panchayat & others (2019 (3) KHC 545)]**_ that the power under Section 238 (1) of the Kerala Panchayat Raj Act, for cutting and removing the dangerous tress is only with the Panchayat Committee of the Panchayat and not with the Secretary of the Grama Panchayat. 4. From a reading of Ext. P2, it is seen that the impugned decision is taken by the 2[nd] respondent-Secretary of the Kizhakkencherry Grama Panchayat, and no reference is made therein, that the decision is based on any resolution taken by the Panchayat Committee. 5. Section 238 of the Kerala Panchayat Raj Act provides as follows; _“_ _**238. Precautions in case of dangerous trees and**_ **WP(C).No.13078 OF 2020** **5** ## _**pruning of hedges and trees-**_ _(1)(a) 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 be 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 there from._ _(b) 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 or 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._ _[(c) 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.]_ _(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.”_ 6. Since the impugned Ext.P2 order has been passed without hearing to the petitioner and without providing the **WP(C).No.13078 OF 2020** **6** petitioner with the copies of proceedings referred to therein, it is only to be held that the same is liable for interdiction only for the ground of violation of natural justice and fairness. It is pointed out that the copy of Ext.P1 (item No.1 of Ext.P2) has been given to the petitioner only along with Ext. P2 and the copy of the reports of the Tahasildar referred in item No. 2 of Ext.P2 has not been furnished to the petitioner, before taking of the decision as per Ext.P2. Accordingly, the matter is liable to be remitted to the respondent, Panchayat authorities for consideration decision afresh. Moreover, it is now well settled that a decision in the nature of Ext. P2, under Section 238 (1) of the Act can be taken only by the Panchayat Committee of the Panchayat concerned and not by the Secretary of the Panchayat. Accordingly, the impugned Ext. P2 will stand quashed and set aside and the proceedings initiated under Section 238 of the Act, will stand remitted to the competent authority among respondents 1 and 2 for considered decision afresh. The 2[nd] respondent- Secretary of the Kizhakkencherry Grama Panchayat, will immediately ensure that copy of the report of the Tahasildar, reported in item No. 2 of Ext.P2 in given to both the petitioner as well as the 3[rd] respondent. Thereafter, should ensure that, the inspection is conducted by a **WP(C).No.13078 OF 2020** **7** competent authority of the Panchayat with due prior notice to the petitioner as well as 3[rd] respondent to ascertain as to whether the parameters of under Section 238 (1) of the Kerala Panchayat Raj Act, are satisfied in this case and thereafter, the copies of the inspection report will given to both the petitioner and 3[rd] respondent. Thereafter, the 2[nd] respondent- Secretary may hear both the petitioner as well as the 3[rd] respondent and thereafter may convey hearing notes in the matter, along with the all requisite materials for the consideration of the Panchayat Committee of the 1[st] respondent-Grama Panchayat. Since the Panchayat Committee is a multibodied member, hearing process need to be done by the 2[nd] respondent-Secretary. Thereafter, the Panchayat Committee will consider all relevant matters and should take a considered decision in the matter, as to whether the action in terms under Section 238(1) of the Kerala Panchyat Raj Act, is really warranted or justified in the facts and circumstances of the case and such decision is to taken by the Panchayat Committee without much delay, preferably, within a period of one month from the date of production of certified copy of the judgment. 7. Petitioner will produce the certified copy of the judgment along the copies of memorandum of this W.P(C) with all **WP(C).No.13078 OF 2020** **8** Exhibits before the 2[nd] respondent- Secretary of the Kizhakkencherry Grama Panchayat, will necessary information for further action. The registry will forward a certified copy of judgment to the 3[rd] respondent at the cost of the petitioner. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** VPK **WP(C).No.13078 OF 2020** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMMUNICATION DATED 28.02.2020 ISSUED BY THE R.D.O. PALAKKAD. EXHIBIT P2 TRUE COPY OF THE ORDER NO. A3-1800/2020 DATED 05.06.2020 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION ALONG WITH ITS RECEIPT DATED 11.06.2020.**