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2001 DIGILAW 284 (KER)

Thankamma v. Ezhumattur Grama Panchayat

2001-06-11

M.RAMACHANDRAN

body2001
JUDGMENT M. Ramachandran, J. 1. Ext. P1 order issued by the Secretary, Ezhumattoor Grama Panchayat dated 23.1.2001 is under challenge. By Ext. P1, the Secretary of the Panchayat had directed the petitioner to remove some trees, which, on his enquiries, posed a threat to the residence of one K. G. Thomas, the 4th respondent herein. A dead line of seven days had been set for compliance. 2. The petitioner has filed his Original Petition inter alia contending that the Secretary had no jurisdiction to issue such proceedings and the peremptory direction is, therefore, illegal. He further refers to S.238 of the Panchayat Raj Act and stresses on the wording of the Section that it was the Grama Panchayat who was competent to issue notice to the owner of any offending trees and moot proposal for cutting and removing or dealing with them. According to him, as the Panchayat had not taken a decision, the Secretary was incompetent to issue such an order, and it deserves to be set aside, being a nullity. 3. Sri. Siby Mathew, counsel appearing for the Grama Panchayat as also Sri. M. V. S. Namboothiri, the counsel appearing for the 4th respondent submitted that the objections made by the petitioner was without any basis and the "Panchayat" referred to in the Section took note of the Executive Officer and the Secretary was authorised and competent to issue an order of such a nature. The counsel appearing for the Grama Panchayat has also referred to S.238(1)(b) which shows that even without notice, in case of emergency, powers had been conferred by the Panchayat Raj Act to the Secretary concerned to issue an order for cutting and removing inconvenient tree growths. 4. The Government Pleader Sri. Murali Purushothaman, submits that the distinction drawn in the two sub-sections of S.238 shows that the statute has clearly dealt with the duties of the Panchayat and the Secretary. He also refers to S.104 of the Municipalities Act. Such powers rest with the Secretary and not on the Municipality. He referred particularly to the wording of sub-s.2 of S.238, wherein under certain specified contingencies, the Secretary of Panchayat had been specifically authorised to act in his own discretion in case of imminent and urgent necessity. As pointed out, the Act differentiates between the two authorities in the matter of exercise of powers. He referred particularly to the wording of sub-s.2 of S.238, wherein under certain specified contingencies, the Secretary of Panchayat had been specifically authorised to act in his own discretion in case of imminent and urgent necessity. As pointed out, the Act differentiates between the two authorities in the matter of exercise of powers. This would be seen from the provisions dealing with appeals and revisions. 5. The term Secretary and Panchayat have been separately defined, and one is not synonym for another. As suggested at the bar, in a Panchayat area ramification of proceedings in such sensitive matter may be greater than in a city, and perhaps the legislature thought that the responsibility for such decision should rest in the collective body, and is not to be conferred on an individual who may not be conversant with local flavours. 6. On giving through the provisions of the statute, I have to hold that the petitioner's contentions are justified and acceptable. When a threat was spoken to arise in the Panchayat, it was imperative that a decision is to be taken thereon. Appropriate orders should be issued to the Executive authority to set right the situation. The Secretary has no independent discretion, however. In the aforesaid circumstances, I do not think that Ext. P1 was validly issued and the order is hereby set aside. Since the complaint is subsisting and the order is set aside for technical reasons, I am of the view that the second respondent Panchayat will deal with the matter appropriately and expeditiously and after hearing the version of both sides, if necessary with further notice, orders as are warranted in public interest may be passed without undue delay. The Original Petition is allowed in the above terms.