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High Court of KeralaSingle JudgeDisposed with directions as stated; interim sta...

WP(C) Nos. 7330 of 2023 & 10818 of 2023, High Court of Kerala

Case / Petition Number:WP(C) Nos. 7330/2023 & 10818/2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • VIJU ABRAHAM
Judgment Date
2023-04-20
Court Decision / Holding
The petitions are disposed with directions: the Village Panchayat (1st respondent) must hear both petitioners and the 3rd respondent (prabhakaran) within 10 days and take a final decision within a further week, considering Ext R3(2) and Ext R3(3) requests. Interim stay granted in WP(C) No.10818/2023 will continue until a final decision is communicated. Both petitions are disposed of accordingly.
Final Disposition
Disposed with directions as stated; interim stay remains in force until final decision is communicated.

Parties to the Case

Appellants / Petitioners

  • SIVANANDAN
  • REENA
  • PRABHAKARAN

Respondents

  • KAKKODI GRAMA PANCHAYATH
  • SECRETARY, KAKKODI GRAMA PANCHAYATH
  • PRABHAKARAN
  • SIVANANDAN
  • REENA

Legal Representation & Advocates

Counsels for Petitioners

  • • B Premnath
  • • Sarath M.S.
  • • Srinath Girish P
  • • P Jeril Babu
  • • V Namitha
  • • Prasudha S

Counsels for Respondents

  • • Vinod Singh Cheriyan
  • • T.M. Khalid
  • • K.P. Susmitha
  • • P Jeril Babu
  • • Premnath B
  • • Sarath M.S.

Case Synopsis & Summary

The judgment deals with two connected writ petitions in the Kerala High Court: WP(C) No. 7330/2023 filed by Sivanandan and Reena and WP(C) No. 10818/2023 filed by Prabhakaran. The core dispute concerns two coconut trees on the property of the third respondent (Prabhakaran in the first petition) which are leaning towards the petitioners’ house, creating a danger to life and property. The first petition sought enforcement of a Panchayat order (Ext P3) directing the third respondent to cut and remove the trees, while the second petition challenged a prior notice (Ext P2, treated as Ext P3 in the other petition) and sought to stall any action. The third respondent contends that the trees are young, are tied to prevent leaning, and he is ready to reinforce or cut them if necessary; he also sought an opportunity of hearing. The petitioners rely on the authorities and on the general principle of natural justice, arguing that Ext P3 was issued after an inspection and should not be stayed without hearing the owner. The court, applying the dictum from Rajkumar v. Mathaikutty (2013 KHC 2251) on natural justice, held that the owner must be given a hearing before further action is taken. It disposed of both petitions by directing the Panchayat to hear all parties within 10 days and decide within a further week, keeping the interim stay in force for WP(C)10818 until final decision. The order emphasizes due process and timely resolution while ensuring safety.

Provisions of Law Cited

S.238(1)(a)S.238(1)(b)

Legal Doctrines & Maxims

  • Natural justice
  • Opportunity of hearing (audi alteram partem)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners in WP(C)7330/2023 contend that two coconut trees on the 3rd respondent’s property, leaning towards their house, create a dangerous condition endangering life and property. They obtained Ext P3 directing the 3rd respondent to cut/remove the trees after a preliminary inspection; however, action was not taken. They maintain Ext P3 was issued based on a valid inspection and rely on Ext P1 (complaint) and Ext P4 (another complaint) to justify their fear. They challenge any unauthorised review of Ext P3 and emphasize that the 3rd respondent should proceed to remove the danger. In WP(C)10818/2023, the petitioner reiterates the same assertions and references Rajkumar v. Mathaikutty (2013 KHC 2251) to support the need for an opportunity of hearing, arguing the Panchayat must hear all sides before implementing Ext P3 and that the 3rd respondent’s readiness to strengthen or cut the trees should not foreclose due process.

Contentions of Respondents

The respondents argue that natural justice requires granting the owner a hearing before taking action under Sec.238(1)(a)/(b) and that the Panchayat must consider any representations (R3(2), R3(3)) before executing Ext P3. They rely on Rajkumar v. Mathaikutty for maintaining due process and the owner’s opportunity to respond. They contend the 3rd respondent sought a hearing and, if so, he must be afforded a hearing in accordance with natural justice before any drastic action such as cutting the trees is undertaken. The respondents emphasize the Panchayat’s authority to assess danger and the need to balance emergency public safety with owners’ rights, ensuring proper procedure is followed before cutting trees or enforcing any structural changes.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Rajkumar v. Mathaikutty2013 KHC 2251PositiveCourt relies on the Division Bench’s dictum in Rajkumar v. Mathaikutty to hold that natural justice requires giving the owner an opportunity of hearing before taking further steps after issuance of Ext P3.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` THURSDAY, THE 20[TH] DAY OF APRIL 2023 / 30TH CHAITHRA, 1945 ``` ## **`WP(C) NO. 7330 OF 2023`** ## **`PETITIONER/S:`** ``` 1SIVANANDAN, AGED 58 YEARS S/O VASU (LATE), "RISHIVAM", THERUVATH THAZHAM ROAD, KAKKODI, KIZHAKKUMURI.P.O., KOZHIKODE, PIN - 673611 2REENA, "RISHIVAM", THERUVATH THAZHAM ROAD, KAKKODI, KIZHAKKUMURI.P.O., KOZHIKODE, PIN - 673609 BY ADVS. B.PREMNATH (E) SARATH M.S. ``` ## **`RESPONDENT/S:`** ``` 1KAKKODI GRAMA PANCHAYATH, KAKKODI.P.O., KOZHIKODE, REPRESENTED BY ITS SECRETARY,, PIN – 673611. 2THE SECRETARY, KAKKODI GRAMA PANCHAYATH, KAKKODI.P.O., KOZHIKODE, PIN – 673611. 3PRABHAKARAN, EDAKKATTU THAZHAM, KIZHAKKUMURI.P.O., KOZHIKODE, PIN – 673611. BY ADVS. SC, Vinod Singh Cheriyan Srinath Girish P T.M.KHALID(K/000047/2013) K.P.SUSMITHA(K/956/2001) P.JERIL BABU(K/806/2009) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.04.2023, ALONG WITH WP(C).10818/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023 2 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 20[TH] DAY OF APRIL 2023 / 30TH CHAITHRA, 1945 ``` ``` WP(C) NO. 10818 OF 2023 ``` ## **`PETITIONER/S:`** ``` PRABHAKARAN,AGED 62 YEARS S/O. NARAYANAN, EDAKKATU THAZAM, KIZHAKKUMURI P.O., KAKKODI, KOZHIKODE, PIN – 673611. ``` ``` BY ADVS. SRINATH GIRISH P.JERIL BABU V.NAMITHA PRASUDHA.S ``` ## **`RESPONDENT/S:`** ``` 1KAKKODI GRAMA PANCHAYATH, KAKKODI P.O., KOZHIKODE, REPRESENTED BY ITS SECRETARY, PIN – 673611. 2SECRETARY, KAKKODI GRAMA PANCHAYAT, KAKKODI P.O., KOZHIKODE, PIN – 673611. 3SIVANANDAN, AGED 58 YEARS “RISHIVAM”, THERUVATH THAZHAM ROAD, KAKKODI, KIZHAKKUMURI P.O., KOZHIKODE, PIN - 673611 4REENA,AGBED 50 YEARS, “RISHIVAM”, THERUVATH THAZHAM ROAD, KAKKODI, KIZHAKKUMURI P.O., KOZHIKODE, PIN - 673611 BY ADVS. SC, VINOD SINGH CHERIYAN Premnath B T.M.KHALID(K/000047/2013) K.P.SUSMITHA(K/956/2001) SARATH M.S.(K/000361/2018) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.04.2023, ALONG WITH WP(C).7330/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023 ``` 3 ## VIJU ABRAHAM, J WP(C) Nos.7330 & 10818 of 2023 th Dated this the 20 day of April 2023 J U D G M E N T WP(C) No. 7330/2023 is filed seeking a direction to respondents nos. 1 and 2 to implement the decision in Ext P3 rd notice, directing the 3 respondent to cut and remove the coconut trees situated in his property whereas WP(C) No. rd 10818/2023 is filed by the 3 respondent in WP(C) No. 7330/2023 challenging Ext P2 notice (produced as Ext P3 in WP(C) No.7330/2023). 2. The contentions raised by the petitioners in WP(C) No. 7330/2023 is that two of the coconut trees situated in the rd property of the 3 respondent, who is the petitioner in WP(C) No. 10818/2023, are leaning towards the house of the petitioners and is in a dangerous condition causing a threat to the life and property of the petitioners. Thereupon, Ext P1 complaint was preferred before the 1st respondent and based rd on the same Ext P3 order was issued directing the 3 ``` WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023 ``` 4 respondent to cut and remove the coconut trees as in the preliminary inspection conducted it is revealed that the trees are lying in a dangerous situation. As no action was taken, Ext P4 petition was filed. 3. A detailed counter affidavit has been filed by respondent no. 3 mainly contending that the petitioners and the rd 3 respondent have various other disputes between them. rd The petitioners have never requested the 3 respondent to cut and remove the said trees and further that the coconut trees are of a young age of less than 10 years and pose no danger to the petitioners and that the trees have been tied with iron wires to prevent them from leaning to the property of the petitioners. Regarding another issue of pollution against the petitioner Ext R3(1) complaint dated 02.12.2022 was submitted before the respondent panchayat. When the official of the rd panchayat came to the spot, it was assured that the 3 respondent will be called for a hearing but without granting such opportunity Ext P3 has been issued. Thereupon, Ext R3(2) and R3(3) requests were submitted before the respondent ``` WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023 ``` 5 panchayat for affording an opportunity of hearing. In Ext R3(3) rd the 3 respondent has specifically stated that he is ready to strengthen the trees once again by tying them with steel wire and that if the said attempt fails, he is ready to cut down the rd trees. The 3 respondent relies on the judgment in Rajkumar v. Mathaikutty, 2013 KHC 2251 in support of his contention. A st reply was also filed by the 1 petitioner reiterating the contentions in the writ petition and also contended that the official respondents have no authority to review the decision contained in Ext P3 order. Ext P6 photograph was also produced to show that the coconut trees are leaning towards the property of the petitioners. In WP(C) No. 10818/2023, the rd petitioner (3 respondent in WP(C) No. 7330/2023) reiterated the same contentions taken in the counter affidavit filed in WP(C)No.7330/2023. An interim order of stay of the operation of the impugned order was also granted. 4. I have considered the rival contentions of the parties. rd The only contention raised by the 3 respondent is that he must be granted an opportunity of being heard before Ext P3 ``` WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023 ``` **==> picture [7 x 10] intentionally omitted <==** order is implemented. Ext R3 (2) and Ext R3(3) are the requests that he has made before the panchayat to grant him rd an opportunity of hearing. In Ext R3(3), the 3 respondent has specifically stated that he is ready to strengthen the trees once again by tying them with steel wire and that if the said attempt fails, he is ready to cut down the trees. Whereas the contention of the petitioner in WP(C)No.7330/2023 is that no opportunity of hearing need be issued in as much as Ext P3 has been issued on the authorities being satisfied regarding the danger in the inspection conducted by them. The learned counsel for the 3rd respondent who is the petitioner in WP(C) No.10818/2023 relies on the judgment of the Division Bench of this Court in Rajkumar’s case supra and paragraph 7 of the said judgment reads as follows: 7: Now the question is whether an enquiry is contemplated under S.238(1) (a) which is under S.238(1)(b). Though in many words enquiry is not indicated under S.238(1) (a) the fact that notice is contemplated to the owner indicating time within which an action has to be taken it would only mean some time is given to the owner, but however, principles ``` WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023 ``` 7 of natural justice requires such owner giving reply within that time which has to be taken into consideration by the Panchayat. If no such opportunity of being heard is given to the owner, it may lead to dangerous situation where Panchayat by considering one side story may taken action without even understanding the case of the other side. Both under S.238(1) (a) and (1) (b) it is ultimately in the wisdom of the Panchayat, it can come to a conclusion whether the tree endangers the life of any person or any structure or any cultivation as the case may be. 5. Going by the dictum laid down by the Division Bench, the principle of natural justice requires the grant of opportunity of hearing to the owner of the property. rd 6. In view of the above, I am of the opinion that the 3 respondent, who is the petitioner in WP(C) No. 10818/2023 has to be given an opportunity of being heard before further steps are initiated pursuant to Ext P3 notice. Therefore, the above writ petitions are disposed of directing the Village Panchayat, st i.e., the 1 respondent in WP(C) No. 7330/2023 to hear the petitioners as well as the third respondent, who is the petitioner in WP(C) No. 10818/2023, and also taken into ``` WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023 ``` **==> picture [7 x 10] intentionally omitted <==** consideration Ext R3(2) and R3(3) requests, before taking any further action pursuant to Ext P3 order. 7. To facilitate speedy disposal of the matter, the rd petitioners as well as the 3 respondent in WP(C) No. st 7330/2023 shall be heard by the 1 respondent Village Panchayat within an outer limit of 10 days from the date of receipt of a copy of this judgment, and take a final decision in the matter within a further period of 1 week and communicate the decision to the petitioners as well as the 3rd respondent. Further proceedings in the matter shall be initiated subject to the outcome of the final decision to be taken as directed above. Till such a decision is taken as directed above, the interim order granted in WP(C)No.10818/2023 will continue to be in force. Both the writ petitions are disposed of as above. **==> picture [24 x 12] intentionally omitted <==** ## VIJU ABRAHAM, JUDGE R.AV ``` WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023 ``` 9 ## **`APPENDIX OF WP(C) 7330/2023`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT, DATED 27.10.2022 Exhibit P2TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE 1ST RESPONDENT ON 27.10.2022 TO THE PETITIONER Exhibit P3TRUE COPY OF THE NOTICE NO.400974/PSD(T02)/GPO/2022/6284(2) ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT, DATED 29.01.2023 Exhibit P4TRUE COPY OF THE COMPLAINT FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT, DATED 22.02.2023 Exhibit P5TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER, DATED 22.02.2023 Exhibit-P6True copy of the photographs showing the coconut trees leaning towards the property of the petitioners Exhibit-P7True copy of the complaint filed by the petitioners before the Station House Officer, Chevayur, dated 14.12.2022 Exhibit-P8True copy of the photograph showing the portion of the boundary and compound wall between the property of the petitioners and the property of the 3rd respondent ``` ``` RESPONDENT EXHIBITS Exhibit R3(1)A true copy of the complaint dated 02.12.2022 submitted by R3 before the Secretary, Kakkodi Grama Panchayat with the acknowledgment receipt ``` ``` Exhibit R3(2)A true copy of the representation dated 08.02.2023 submitted by R3 before the Secretary, Kakkodi Grama Panchayat along with the receipt Exhibit R3(3)A true copy of the representation dated 22.02.2023 submitted by R3 before the Secretary, Kakkodi Grama Panchayat ``` ``` WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023 ``` 10 ## **`APPENDIX OF WP(C) 10818/2023`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` TRUE COPY OF THE COMPLAINT DATED 02.12.2022 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, KAKKODI GRAMA PANCHAYATH ``` ``` Exhibit P2TRUE COPY OF THE NOTICE OF THE DECISION TAKEN BY THE 1ST RESPONDENT PANCHAYAT DATED 29.01.2023 ``` ``` Exhibit P3TRUE COPY OF THE REPRESENTATION DATED 08.02.2023 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, KAKKODI GRAMA PANCHAYATH ``` ``` Exhibit P4TRUE COPY OF THE REPRESENTATION DATED 22.02.2023 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, KAKKODI GRAMA PANCHAYATH ```