Sheela v. Elakamon Grama Panchayath and Secretary, Elakaman Grama Panchayath, Ayiroor and Savithri

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941** ## **WP(C).No.7843 of 2019** ## **PETITIONER:** **SHEELA AGED 48 YEARS W/O. SUDARSAN, DARSANA (KANIYANVILA), AYIROOR P.O., VARKALA, THIRUVANANTHAPURAM** **BY ADVS. SRI.M.BALAGOVINDAN SMT.S.ABJA SRI.S.SHIBU KUMAR** ## **RESPONDENTS:** |**1**|**ELAKAMON GRAMA PANCHAYATH**| |---|---| ||**REP.BY ITS SECRETARY,**| ||**OFFICE OF THE ELAKAMAN GRAMA PANCHAYAT,**| ||**AYIROOR P.O., VARKALA,**| ||**THIRUVANANTHAPURAM-695 310**| |**2**|**SECRETARY,**| ||**ELAKAMAN GRAMA PANCHAYAT, OFFICE OF THE ELAKAMAN**| ||**GRAMA PANCHAYAT, AYIROOR P.O., VARKALA,**| ||**THIRUVANANTHAPURAM-695 310**| |**3**|**SAVITHRI,**| ||**SALIM COTTAGE,AYIROOR P.O., VARKALA,**| ||**THIRUVANANTHAPURAM-695 310**| ||**BY ADV. SRI.J.S.AJITHKUMAR**| |**THIS WRIT **|**PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON**| |**09.07.2019,**|**THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**| W.P.(C) No.7843/2019 2 ## **JUDGMENT** Going by the averments in the Writ Petition, the petitioner was the owner in possession of 10 cents of land in Sy.No.3119 of Ayiroor Village in Varkala Taluk. She assigned the property to her husband for the construction of a house, after executing Ext.P1 sale deed dated 7.3.1995. The third respondent is the neighbouring property owner, who made certain complaints against the petitioner as to the trees standing on the aforesaid property. Based on that complaint, the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat, has issued Ext.P3 order dated 1.3.2019 whereby the petitioner has been directed to cut and remove the Tamarind tree seen in Ext.P2 photograph. Feeling aggrieved, the petitioner has filed this Writ Petition, seeking a writ of certiorari to quash Ext.P3 order; and a writ of mandamus commanding the second respondent not to proceed on the basis of Ext.P3, till the disposal of the Writ Petition. 2. On 15.3.2019, when this Writ Petition came up for admission, this Court issued urgent notice by speed post to W.P.(C) No.7843/2019 3 the respondents, returnable within three weeks. This Court granted an interim stay of Ext.P3 order passed by the second respondent for a period of one month. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for respondents 1 and 2. Despite service of notice, none appears for the third respondent. 4. The sole issue that arises for consideration in this Writ Petition is as to whether Ext.P3 order dated 1.3.2019 issued by the second respondent, who is the Secretary of the 1[st] respondent Grama Panchayat, can be sustained in law. 5. As discernible from the pleadings and materials on record, the second respondent has issued Ext.P3 order, invoking the provisions under sub-section (1) of Section 238 of the Kerala Panchayat Raj Act, 1994. 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, sub-section W.P.(C) No.7843/2019 4 (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 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; W.P.(C) No.7843/2019 5 “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 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 W.P.(C) No.7843/2019 6 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 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 W.P.(C) No.7843/2019 7 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.” 7. In view of the law laid down by this Court in **Joseph's case (supra)** , conclusion is irresistible that Ext.P3 order issued by the 2[nd] respondent, who is the Secretary of the Grama Panchayat, is one issued absolutely without any authority of law, which cannot be sustained in law. In the result, this Writ Petition is disposed of by setting aside Ext.P3 order issued by the 2[nd] respondent; however, without prejudice to the right of the Village Panchayat to consider the complaint made by the third respondent which is referred to in Ext.P3 order, after serving a copy of the same to the petitioner, if not already served, and take an appropriate decision on that complaint, strictly in accordance W.P.(C) No.7843/2019 8 with the provisions under sub-section (1) of Section 238 of Kerala Panchayat Raj Act, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K.NARENDRAN JUDGE** csl W.P.(C) No.7843/2019 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DATED EXECUTED BY THE PETITIONER TO HER HUSBAND DATED 7/3/1995** **EXHIBIT P2 TRUE COPY OF THE PHOTOGRAPH EXHIBIT P3 TRUE COPY OF THE ORDER DATED 01/03/2019 EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 12/6/2018** **RESPONDENTS' EXTS: NIL**