Sagaran vs Edavanakkadu Grama Panchayath
2021 Latest Caselaw 7310 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

       TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

                 RP.No.1120 OF 2018 IN WP(C). 33340/2016

  AGAINST THE JUDGMENT DATED 04.12.2018 IN WP(C) 33340/2016(N) OF HIGH
                          COURT OF KERALA


REVIEW PETITIONER/PETITIONER:

              SAGARAN
              AGED 52 YEARS
              S/O.GOPI, KANJIRAKKATU HOUSE, EDAVANAKKADU.P.O, WARD
              NO.11, KOCHI TALUK, ERNAKULAM DISTRICT, PIN-682 311.

              BY ADVS.
              SRI.T.N.SURESH
              SRI.V.S.ANU MON
              SMT.A.S.CHINJU DUTH

RESPONDENTS/RESPONDENTS:

       1      EDAVANAKKADU GRAMA PANCHAYATH
              REPRESENTED BY SECRETARY, EDAVANAKKADU.P.O, PIN-682 502,
              ERNAKULAM DISTRICT.

       2      SECRETARY
              EDAVANAKKADU GRAMA PANCHAYATH, EDAVANAKKADU.P.O, PIN-
              682 502, ERNAKULAM DISTRICT.

       3      VINOD
              AGED 48 YEARS
              S/O.PADMANABHAN, MARANGATTUTHARA HOUSE,
              EDAVANAKKADU.P.O, PIN-682 502, ERNAKULAM DISTRICT, NOW
              RESIDING NEAR BHAVANA ANGANWADI, WEST SIDE KPMHS
              SCHOOL, EDAVANAKKAD, PIN-682 502.

              R1-2 BY ADV. SMT.K.P.REMA DEVI
              R1-2 BY ADV. SMT.UMA R.KAMATH

     THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 02.03.2021, THE
     COURT ON THE SAME DAY PASSED THE FOLLOWING:
 R.P. No. 1120/2018                      :2:
in W.P.(C) No. 33340/2016



              Dated this the 2nd day of March, 2021.

                                 ORDER

This Review Petition is filed by the writ petitioner seeking to

review the judgment dated 04.12.2018 in W.P.(C) No. 33340 of 2016,

by which a direction was issued to the Secretary of the Edavanakkadu

Grama Panchayat to take action under Section 238(1) of the Kerala

Panchayat Raj Act, 1994 ('Act, 1994'), 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 there from."

2. According to the learned counsel for the review petitioner, at

the time when the writ petition was disposed of, the power conferred

on the Village Panchayat under Section 238(1) of the Act, 1994 was

not brought to the notice of this Court, which only persuaded this

Court to issue a direction to the Secretary to take action in a petition

pending under Section 238(1) of the Act, 1994. The directions issued

reads thus:

2. Apparently the grievance of the petitioner is that, Ext.P1 notice is issued by the Panchayat under Section 238 (1) of the Kerala Panchayat Raj Act, 1994 directing the petitioner to cut and remove certain trees standing in the property, dangerous to the 3rd respondent. In my considered opinion, it is

in W.P.(C) No. 33340/2016

only a preliminary notice issued by the Panchayat, and if the petitioner is aggrieved, petitioner as of right is entitled to file an objection and participate in the proceedings. This writ petition is pending before this Court from the year 2016, after securing an interim order of stay of Ext.P1. Therefore, the writ petition is disposed of, directing the Secretary of the Panchayat to entertain any objection from the petitioner, if submitted within a period of three weeks and attain finality to the same after providing notice of hearing to the petitioner as well as the 3rd respondent, at the earliest, and at any rate within one month thereafter. Till such time, the interim order granted by this Court and inforce will continue to be in force, till a decision is taken as directed above."

3. The Review Petitioner/ writ petitioner has also pointed out

that the issue was considered by a Division Bench of this Court in Raj

Kumar v. Mathaikutty [2013 KHC 2251=2013(1) KLT 512].

4. After hearing the respective counsel across the Bar and

perusing the provisions of law and the judgment specified above, I am

satisfied that the review petitioner has made out a ground for

reviewing the judgment, since the material fact on the basis of law was

not taken note of by this Court while rendering the judgment.

Accordingly, this Review Petition is allowed.

Registry is directed to post the writ petition in accordance with

roster.

sd/-

SHAJI P. CHALY, JUDGE.

Rv