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V.M. Joseph v/s Kadanad Grama Panchayath, Represented by Its Secretary, Kottayam & Others


    WP(C). No. 15019 of 2019

    Decided On, 14 June 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN

    For the Petitioner: Justine Jacob, P.S. Amrutha, A.P. Beelamma, K.P. Amrutha, Resmi Thomas, K.S. Arun Kumar, Advocates. For the Respondents: George kutty Mathew, SC, R3, Frinso Mathew, Advocates.



Judgment Text

1. The petitioner, who is stated to be the owner of 21 Are and 10 Sq.m of land comprised in Survey No.297/7 in Block No.31 of Kadanadu village in Kottayam district, covered by Ext.P1 tax receipt, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 notice dated 9.5.2019 issued by the 2nd respondent, who is the Secretary of the 1st respondent Panchayat, invoking the provisions under sub-section (1) of section 238 of the Kerala Panchayat Raj Act, 1994 (for brevity, 'the Act'), whereby, the petitioner has been directed to cut and remove two vaka trees, three jack-fruit trees, one coconut tree and one cotton tree, on the ground that those trees are likely to fall over the house of the 3rd respondent and thereby endanger the said respondent. By Ext.P2 notice, the petitioner has been asked to cut and remove those trees within 7 days and to intimate the said fact in writing to the Grama Panchayat, failing which, further proceedings will be initiated against the petitioner under clause (b) of sub-section (1) of section 238 of the Act, on the presumption that he has no objection to that notice. A reading of Ext.P2 notice would show that based on a complaint made by the 3rd respondent, the 2nd respondent conducted a local inspection to confirm the veracity of that complaint.

2. On 31.5.2019, when this writ petition came up for admission, the learned Standing Counsel for Kadanad Grama Panchayat took notice on admission for respondents 1 and 2. Urgent notice on admission by speed post was ordered to the 3rd respondent, returnable within two weeks. Respondents 1 and 2 were directed to file statement.

3. Heard the learned counsel for the petitioner, the learned Standing Counsel for Kadanad Grama Panchayat, representing respondents 1 and 2, as also the learned counsel for the 3rd respondent.

4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P2 notice dated 9.5.2019 issued by the 2nd respondent.

5. Section 238 of the Act deals with precautions in cases of dangerous trees and pruning of hedges and trees. Sub-section (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 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 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 3rd 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 2nd respondent, who is the Secretary of the 1st respondent Panchayat, is one issued absolutely without any authority of law.

9. The learned counsel for the 3rd respondent would point out that the trees standing in the property of the petitioner is likely to fall and thereby endanger the 3rd respondent and his house. In order to substantiate the said fact, the learned counsel has also made available for the perusal of this Court certain photographs, which are stated to be that of the trees referred to in Ext.P2 notice. This Court need not go into those factual issues in this writ petition, since Ext.P2 notice issued by the 2nd respondent Secretary is one issued absolutely without any authority of law.

10. The learned standing counsel for the 1st respondent Panchayat would submit that the Panchayat shall issue a fresh notice to the petitioner, invoking the provisions under clause (a) of sub-section (1) of Section 238 of the Act, based on the complaint made by the 3rd respondent and thereafter take an appropriate decision in the matter, with notice to the petitioner and also to the 3rd respondent, and after affording them an opportunity of being heard.

11. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of as follows:

(a) Ext.P2 notice dated 9.5.2019 issued by the 2nd respondent Secretary of the 1st respondent Panchayat, invoking the provisions of sub-section (1) of Section 238 of the Act, is set aside, since the power under that sub section has to be exercised by the Village Panchayat constituted under clause (a) of sub-section (1) of Section 4 of the Act.

(b) The 1st respondent Village Panchayat shall forthwith issue a fresh notice to the petitioner under clause (a) of sub-section (1) of Section 238 of the Act, along with a copy of the complaint made by the 3rd respondent.<

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br /> (c) The petitioner and the 3rd respondent shall be personally present before the Village Panchayat on 18.6.2019 at 11.30 am along with their written submissions. (d) The Village Panchayat shall conduct a personal hearing and take appropriate decision as to whether any action under sub-section (1) of Section 238 of the Act is warranted based on the complaint made by the 3rd respondent. (e) A decision in this regard shall be taken as expeditiously as possible, at any rate within a period of three days, which shall be communicated to the petitioner and also to the 3rd respondent, forthwith. It is made clear that this Court has not expressed anything on the merits of the rival contentions on facts and it is for the Village Panchayat to take appropriate decision, strictly in accordance with law.
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