Yohannan T.V. v. Kottuvally Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941** ## **WP(C).No.15564 OF 2019(U)** ## **PETITIONER:** **YOHANNAN T.V., AGED 62 YEARS, S/O.VARUTHUKUTTY, THAIPARAMBIL HOUSE, KOONAMAVU P.O., ERNAKULAM DISTRICT, PIN - 683 518.** **BY ADVS. SRI.LINDONS C.DAVIS SMT.E.U.DHANYA** ## **RESPONDENTS:** **1 KOTTUVALLY GRAMA PANCHAYAT, VALLUVALLY, KOONAMMAVU P.O., ERNAKULAM DISTRICT - 683 518, REPRESENTED BY ITS SECRETARY. 2 SECRETARY, KOTTUVALLY GRAMA PANCHAYAT, VALLUVALLY, KOONAMMAVU P.O., ERNAKULAM DISTRICT - 683 518. 3 JOSEMON, S/O.THUNDIPARAMBIL VARHGESE, NEAR ST.JOSEPH BALABHAVAN, KOONAMAVU P.O., ERNAKULAM DISTRICT, PIN - 683 518. BY ADV. SRI.V.M.ALI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)15564 OF 2019 ## **JUDGMENT** The petitioner and the 3[rd] respondent are neighbours, who are residing within the jurisdiction of the 1[st] respondent Grama Panchayat. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 notice dated 06.03.2019, Ext.P3 notice dated 31.07.2018 and Ext.P5 order dated 01.06.2019 issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat. The further relief sought for is a writ of mandamus commanding the 1[st] respondent to issue notice and conduct hearing and inquiry before passing any orders on the complaint filed by the 3[rd] respondent. 2. On 07.06.2019, when this writ petition came up for admission, this Court admitted the matter on file and issued urgent notice by speed post to the respondents, returnable within ten days. This Court granted an interim stay of operation of Exts.P1, P3 and P5 notices/order, for a period of one month. 3. Thereafter, on 08.07.2019, the said interim order was extended for a further period of one month. 3 WP(C)15564 OF 2019 4. Heard the learned counsel for the petitioner and also the learned counsel for the 3[rd] respondent. Despite service of notice, none appeared for respondents 1 and 2. 5. The sole issue that arises for consideration in this writ petition is as to whether Exts.1, P3 and P5 notices/order issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat, in exercise of the powers under sub-section (1) of Section 238 of the Kerala Panchayat Raj Act, can be sustained in law. 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 (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) 4 WP(C)15564 OF 2019 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; “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, 5 WP(C)15564 OF 2019 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 subsection (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 subsection (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. 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 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 6 WP(C)15564 OF 2019 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. 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)** , the power under sub-section (1) of Section 238 has to be exercised by the Village Panchayat constituted under clause (a) of sub-section (1) of Section 4 of the Kerala Panchayat Raj Act and the Secretary of the Grama 7 WP(C)15564 OF 2019 Panchayat can exercise the powers, which falls under subsection (2) of Section 238 of the Act. 8. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed by setting aside Exts.P1, P3 and P5 notices/order and directing the 1[st] respondent Village Panchayat to consider Ext.P6 complaint dated 08.06.2018 made by the 3[rd] respondent and take an appropriate decision on that complaint, with notice to the petitioner and also to the 3[rd] respondent, in exercise of its powers under sub-section (1) of Section 238 of the Kerala Panchayat Raj Act. The entire exercise in this regard shall be completed, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 8 WP(C)15564 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **A COPY OF THE NOTICE NO.C2-633/2019 DATED 6/3/2019 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2 A COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 8/8/2018.** - **EXHIBIT P3 A COPY OF THE NOTICE NO.C2-4485/2017 DATED 31/7/2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 A COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/3/2019.** - **EXHIBIT P5 A COPY OF THE ORDER NO.C2-633/19 DATED 01/06/2019 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 A COPY OF THE COMPLAINT FILED BY THE 3RD RESPONDENT DATED 8/6/2018 BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P7 A COPY OF THE REPORT OBTAINED FROM THE 1ST RESPONDENT.** - **EXHIBIT P8 PHOTOGRAPHS OF TRESS STANDING ON THE PETITIONER'S PROPERTY.** **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**