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2013 DIGILAW 26 (KER)

K. Raj Kumar v. Mathaikutty

2013-01-10

K.VINOD CHANDRAN, MANJULA CHELLUR

body2013
JUDGMENT Manjula Chellur, C.J. 1. The 1st respondent herein approached the learned Single Judge aggrieved by Ext.P2 proceedings of the 2nd respondent Secretary of Kottanadu Grama Panchayat under Section 238 of the Kerala Panchayat Raj Act, 1994 (for short 'the Act'). 2. It is not in dispute that Ext.P2 order is the outcome of a resolution at Annexure A1 of Kottanadu Grama Panchayat. Learned counsel for the petitioner before the learned Single Judge contended, without hearing him, an 'Anjili' tree that was standing in his property for long time was directed to be removed within a period of 7 days after receiving Ext.P2 order. According to him, the said tree is not causing any threat or nuisance endangering the neighbouring property owner i.e. the appellant herein. According to him, Ext.P2 is nothing but an outcome of personal animosity by the present appellant against the writ petitioner and the appellant has influence with the Panchayat Committee. 3. So far as the appellant's contention before the learned Single Judge that there was no necessity even to hear the writ petitioner/the owner of the tree in question, if one has analysed the intention indicated at Section 238 (1) (a) of the Act. According to him, the Panchayat initiated action being convinced of the fact that there is likelihood of the 'Anjili' tree falling on the house of the appellant herein which may result in danger to the property as well as the life of the appellant and others. According to him, an enquiry and inspection of the site was made by the Secretary and only after being convinced that root of the tree was getting decayed, when the matter was placed before the Panchayat Annexure A1 resolution came to be passed. Several photographs came to be placed before the learned Single Judge. 4. After hearing both parties, the learned Single Judge proceeded to analyse the facts of the present case by placing reliance on Section 239 of the Act. Ultimately the learned Judge felt there was no need to interfere with Ext.P2 order issued by the Secretary, but, however, no action to cut and remove the disputed tree on the strength of Ext.P2 could be contemplated till proper orders are issued pursuant to the resolution of the Panchayat. The learned Judge further says Panchayat is at liberty to issue further orders in accordance with law. 5. The learned Judge further says Panchayat is at liberty to issue further orders in accordance with law. 5. After perusal of Sections 238 and 239 of the Act we are of the opinion, the learned Single Judge was not justified in placing reliance on Section 239 of the Act at all which contemplates general powers of Panchayat for carrying out their functions under the Act. Section 238 has two parts. Section 238 (1) (a), (b) and (c) refers to the powers of the Village Panchayat and Sub Section(2) of Section 238 refers to the powers of the Secretary of Village Panchayat. There is also indication with regard to the nature of property that could be dealt with by the Panchayat and also by the Secretary. Section 238 reads as follows: "238 Precautions in case of dangerous trees and pruning of hedges and trees.--(1)(a) 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. (b) 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 or 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. [(c) 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] (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 street and obstructing it or the view of traffic or causing damage to it; or (c) remove fallen trees on public roads and water ways which obstruct traffic." Reading of this provision clearly indicates when it comes to private trees belonging to private parties, Village Panchayat alone has jurisdiction to entertain complaints or take suo motu action when such complaint is filed complaining inaction on the part of the owner of the tree. When it comes to public trees and also obstruction of traffic, removing or trimming or cutting branches of a tree, it is entrusted to the Secretary of the Village Panchayat. Section 239 reads as under: "239. Power of Panchayat for carrying out their functions:-(1) A Panchayat shall exercise all the powers conferred on, and perform all the functions entrusted to that Panchayat by or under this Act or any other law and shall also exercise such other powers and perform such other functions as may be conferred on or entrusted to it by the Government for carrying out the provisions of this Act. (2) A Panchayat shall have power to do all acts necessary for, and incidental to, carrying out the functions entrusted or delegated to it. (2) A Panchayat shall have power to do all acts necessary for, and incidental to, carrying out the functions entrusted or delegated to it. (3) Without prejudice to the generality of the foregoing power, a Village Panchayat shall have power,- (a) to require by notice, the owner or occupier of any land or building which is a nuisance to the neighbourhood on account of- (i) its insanitary conditions; or (ii)the collection of any drainage, filth or stagnant water thereon; or (iii) the existence of wild or noxious vegetation thereon; or (iv) the presence of poisonous reptiles or other harmful animals or insects, (b) to take such action as it deems necessary to abate the nuisance within a reasonable period to be specified in such notice; (c) to prohibit the use of the water of any stream, well, pond or any other excavation believed to be dangerous to public health; and (d) to regulate or prohibit the watering of cattle or bathing or washing in any stream, well, pond or other excavation reserved for drinking water." 6. Section 239 of the Act clearly indicates how a Panchayat can exercise powers conferred on it and perform the functions under various circumstances indicated thereunder. Definitely, there is also a provision under Section 239 to take necessary action by the Panchayat whenever an action or a thing causes danger to public, with persons or property of the public. This has nothing to do with the powers of the Panchayat under Section 238. Section 238 is a special provision with reference to dangerous trees and pruning of those trees and how precautions have to be taken by the Panchayat. Section 238 (1) (a) refers to a situation where immediate action is necessary or where there is immediate danger to a life or a property, whereas Section 238 (1) (b) refers to immediate action to be taken where no notice is required. Section 238 (1) (a) contemplates prior notice allowing the owner some breathing space and time to cut or remove the tree as indicated under Section 238 (1) (a), if it endangers any person or any structure or any cultivation. There is no question of allowing any breathing time to the owner so far as Section 238(b) is concerned because the Village Panchayat itself can take action and recover the expenditure for such action from the owner. 7. There is no question of allowing any breathing time to the owner so far as Section 238(b) is concerned because the Village Panchayat itself can take action and recover the expenditure for such action from the owner. 7. Now the question is whether an enquiry is contemplated under Section 238(1) (a) which is under Section 238 (1) (b). Though in many words enquiry is not indicated under Section 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 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 take action without even understanding the case of the other side. Both under Section 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. 8. In the present case, apparently Section 238(2) will not come into play as the tree is standing in a private property of the party respondent/writ petitioner. In that view of the matter, whatever action that had to be taken is to be under Section 238 (1). Though notice was issued through the Secretary of Panchayat in the month of June 2012, no untoward incident endangering either the life or structure or cultivation of the appellant is caused by the tree in question. This could be his fortune. 9. The fact remains whether the tree in question is in such a condition which requires action i.e., cut and removed in order to protect the present structure or cultivation of the appellant herein. This has to be an exercise to be undertaken by the Village Panchayat before finally concluding that the tree has to be cut within the time specified in the notice under Section 238(1) (a) of the Act. 10. Now the notice is issued by the Secretary as per the instructions of the Village Panchayat in pursuance of Annexure A1 resolution. This has to be an exercise to be undertaken by the Village Panchayat before finally concluding that the tree has to be cut within the time specified in the notice under Section 238(1) (a) of the Act. 10. Now the notice is issued by the Secretary as per the instructions of the Village Panchayat in pursuance of Annexure A1 resolution. In that view of the matter, it is open to the respondent/writ petitioner to place before the Panchayat necessary information and the Panchayat, after due enquiry, shall proceed further as contemplated under Section 238(1) (a) in the light of above observations. The entire exercise has to be done on or before 31.01.2013. The respondent/writ petitioner shall place necessary information including documents, if any, in support of his case before the Panchayat on or before 21.01.2013. The appellant is also at liberty to furnish information both in writing and also documentary, if any, on or before 21.01.2013. The other exercise, as indicated above, has to be concluded before 31.01.2013 by the respondent Panchayat. With these observations, the Writ Appeal is disposed of.