Kerala High Court

Chandran vs State Of Kerala on 15 July, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                        WP(C) NO. 34517 OF 2017
PETITIONER/S:

          CHANDRAN
          S/O.SADANANDAN, VISHNUNILAYAM, KOCHUVILA
          P.O.,KANNANKODE, PERINGAMALA, THIRUVANANTHAPURAM.

          BY ADV SRI.SAJU.S.A


RESPONDENT/S:

    1     STATE OF KERALA
          REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
          SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.

    2     THE DISTRICT COLLECTOR THIRUVANANTHAPURAM
          CIVIL STATION, KUDAPPANAKUNNU, PEROORKADA,
          THIRUVANANTHAPURAM, PIN-695005.

    3     THE REVENUE DIVISIONAL OFFICER
          CIVIL STATION, KUDAPPANAKUNNU,
          PEROORKADA,THIRUVANANTHAPURAM DISTRICT, PIN-695005.

    4     PERINGAMALA GRAMA PANCHAYATH
          REPRESENTED BY ITS SECRETARY,PERINGAMALA,
          THIRUVANANTHAPURAM,PIN-695607.

    5     THE SECRETARY PERINGAMALA GRAMA PANCHAYATH
          PERINGAMALA, THIRUVANANTHAPURAM,PIN-695607.

    6     LIJU
          S/O.REGUNATHAN, LIJU BHAVAN, KARIMANCODE, PALOODE,
          THIRUVANANTHAPURAM, PIN-695607.

    7     VIMALADEVI
          LIJU BHAVAN, KARIMANCODE,PALOODE, THIRUVANANTHAPURAM,
          PIN-695607.

          R1 TO R3 BY SRI.SURIN GEORGE IPE, SR.GP
          R4 & R5 BY SRI.THOMAS ABRAHAM, SC

          R6 & R7 BY SRI.V.SURESH, SC
 WP(C) NO. 34517 OF 2017
                                 2

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 34517 OF 2017
                                        3

                                  JUDGMENT

This writ petition is filed by the petitioner seeking the following reliefs:-

"a) issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent to comply with directions in Exhibit P3 order within a reasonable time to be fixed by this Hon'ble Court.

b) issue a writ of mandamus or any other appropriate writ, order or direction directing the 5th respondent to consider and dispose of Ext.P4 complaint petition filed by the petitioner in accordance with law, within a reasonable time to be fixed by this Hon'ble Court.

c) pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioners may pray from time to time."

2. Petitioner is a resident of Kannancode in Peringamala Grama

Panchayath of Thiruvananthapuram district. Respondents 6 & 7 are having

property adjacent to the property of the petitioner. According to the

petitioner, three rubber trees and one acacia tree in the property of

respondents 6 & 7 are standing in dangerous condition and it may cause

destruction and damages to the house of the petitioner and his family.

Thereupon, petitioner has submitted an application before the Secretary of

the Peringamala Grama Panchayath, which was referred to the Panchayath

Legal Service Committee. Notice was issued to respondents 6 & 7, but they

refused to attend the meeting. It was accordingly that the petitioner WP(C) NO. 34517 OF 2017

submitted an application before the District Collector, Thiruvananthapuram,

probably invoking Section 133 and other allied provisions of the Code of

Criminal Procedure, which apparently seems to have been referred by the

District Collector to the Revenue Divisional Officer, Thiruvananthapuram.

The Revenue Divisional Officer has passed Ext.P3 order dated 15.09.2017,

directing the Secretary of the Peringamala Grama Panchayath to take action

in accordance with the provisions of the Kerala Panchayath Raj Act, 1994,

within ten days, and report the matter to the Revenue Divisional Officer.

Therefore, in the writ petition, petitioner seeks action pertaining to Ext.P3, as

directed by the Revenue Divisional Officer. Today, when the matter was

taken up, learned Counsel for the petitioner submitted that, even though

Ext.P3 order is partially implemented and some of the trees were removed,

some of the trees are still remaining in dangerous condition.

3. I have heard learned Counsel for the petitioner Sri.Vinod

Ravindranath, learned Senior Government Pleader Sri. Surin George Ipe for

respondents 1 to 3, Adv.Thomas Abraham, learned Standing Counsel

appearing for respondents 4 and 5 Grama Panchayath and Sri. V.Suresh,

learned Counsel for respondents 6 and 7 who are private parties, and perused

the pleadings and the documents on record.

4. The subject issue revolves around Ext.P3 order passed by the

Revenue Divisional Officer, directing the Secretary to take appropriate action WP(C) NO. 34517 OF 2017

as per the provisions of the Kerala Panchayath Raj Act, 1994, to cut and

remove the trees standing in a dangerous condition to the writ petitioner.

Section 238(1) of the Kerala Panchayath Raj Act, 1994, guides the issue, which

reads thus:

"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.

WP(C) NO. 34517 OF 2017

5. On a reading and analysis of the said provision, it is categoric and

clear that, the Secretary is not vested with powers to issue any notice to cut

and remove the trees, but the Panchayath has to take a decision and notice

shall be issued by the Panchayath. Since, learned Counsel for the respondents

6 and 7 submitted that the entire order is not implemented and the trees are

not standing in dangerous condition, it is only appropriate that the

Panchayath is directed to take appropriate action in contemplation of Section

238(1) of the Act, 1994, if a decision is not already taken in accordance with

the directions issued by the Revenue Divisional Officer. Therefore, after

evaluating the pros and cons and facts and figures, this writ petition is

disposed of, directing the Peringamala Grama Panchayath to take appropriate