K K Jayasankar vs Nayarambalam Grama Panchayat
2022 Latest Caselaw 7393 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
                      WP(C) NO. 2349 OF 2022
PETITIONER:

            K K JAYASANKAR
            AGED 59 YEARS
            KATTIPARAMBIL HOUSE, NAYARAMBALAM P.O.
            ERNAKULAM DISTRICT-682 509.
            BY ADVS.
            SANIL JOSE
            K.P.ANTONY BINU

RESPONDENTS:

    1       NAYARAMBALAM GRAMA PANCHAYAT
            NAYARAMBALAM P.O.ERNAKULAM DISTRICT-682 509,
            REPRESENTED BY ITS SECRETARY
    2       THE SECRETARY
            NAYARAMBALAM GRAMA PANCHAYAT, NAYARAMBALAM
            P.O.ERNAKULAM DISTRICT-682 509,
    3       DEEPAK.M.V.
            MALIECKAL HOUSE, NAYARAMBALAM P.O.ERNAKULAM
            DISTRICT-682 509,
            BY ADVS.
            T.N.SURESH
            DHANUJA VETTATHU
            MONSY K.V
            KORAH JOY

OTHER PRESENT:

            SRI.C.P.PEETHAMBARAN, SC


     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON   24.06.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.2349/2022

                                  2



                   P.V.KUNHIKRISHNAN, J.
                    --------------------------------
                    W.P.(C).No.2349 of 2022
             ----------------------------------------------
            Dated this the 24th day of June, 2022


                             JUDGMENT

This writ petition is filed with following prayers:

i. Call for records leading to issuance of Ext.P8 and P10 orders and quash the same by issuing a writ of certiorari.

ii. Declare that Ext.P1 complaint does not make out a case to invoke provisions of Section 238 of the Kerala Panchayat Raj Act, 1994.

iii. Issue such other writ, order or direction as this Honourable Court deems fit and proper in the circumstances of the case.

(SIC)

2. The petitioner is a resident of Ward No.6 of

Nayarambalam Grama Panchayat. He and the 3rd respondent

are neighbors. There is a panchayat road in between the

properties of both parties. The 3rd respondent had filed a

complaint before the Panchayat Secretary complaining that

one Mahagony tree standing in the petitioner's property is

causing disturbance to him on account of the falling of leaves W.P.(C).No.2349/2022

and seeds on his courtyard and thereby his courtyard is

becoming unclean. Thereafter he was served with a copy of

the complaint but without conducting any personal hearing,

Ext.P8 order was passed under Section 238 of the Kerala

Panchayat Raj Act, 1994, it is submitted. The petitioner

immediately filed Ext.P9 appeal challenging Ext.P8. The same

is also dismissed as per Ext.P10 order. Hence this Writ Petition

is filed challenging Exts.P8 and P10 orders.

3. Heard the learned counsel for the petitioner and

the learned Standing Counsel for respondents 1 and 2. I also

heard the learned counsel for the 3rd respondent.

4. The counsel for the petitioner submitted that Ext.P1

is the complaint and it will not make out a case to invoke

Section 238 of the Panchayat Raj Act. The learned counsel

submitted that the orders are passed without giving an

opportunity of hearing to the petitioner. On the other hand,

the learned Standing Counsel for the Panchayat submitted

that Ext.P8 and P10 orders were passed after giving sufficient

opportunity of hearing to the petitioner and the tree is

situated in a dangerous situation and during the rainy season,

if the branches are not removed there will be problem. The W.P.(C).No.2349/2022

learned counsel for the 3rd respondent also supported the

contentions of the Panchayat. The learned counsel submitted

that after a long litigation of one year, Exts.P8 and P10 orders

were passed and that also after hearing all the affected parties

and this Court may not interfere with the same.

5. This Court perused Exts.P8 and P10 orders. Ext.P8

is an order passed by the 2nd respondent after considering all

the aspects of the case. There is nothing wrong in Ext.P8. It

cannot be said that it is an order passed without hearing the

petitioner. The appellate authority also considered all the

aspects while passing Ext.P10 order. I see no reason to

interfere with Exts.P8 and P10 orders. After all, the direction

is only to remove a tree which is dangerously leaning towards

the house of the 3rd respondent. I do not think this is a matter

to be interfered invoking the powers under Article 226 of the

Constitution of India.

Hence this writ petition is dismissed.

sd/-

P.V.KUNHIKRISHNAN JV JUDGE W.P.(C).No.2349/2022

APPENDIX OF WP(C) 2349/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE PHOTOCOPY OF THE COMPLAINT DATED 18.2.2021 FILED BY THE 3RD RESPONDENT Exhibit P2 TRUE PHOTOCOPY OF THE REPORT DATED 25.2.2021 OF THE PANCHAYAT CLERK. Exhibit P3 TRUE PHOTOCOPY OF THE NOTICE OF HEARING DATED 23.2.2021 Exhibit P4 TRUE PHOTOCOPY OF THE NOTICE OF HEARING DATED 8.3.2021 Exhibit P5 TRUE PHOTOCOPY OF THE COMMUNICATION DATED 24.3.2021 BEARING FILED NO C1- 1089/2021 ISSUED BY THE 2ND RESPONDENT Exhibit P6 TRUE PHOTOCOPY OF THE REPLY DATED 19.4.2021 SUBMITTED BY THE PETITIONER Exhibit P7 TRUE PHOTOCOPY OF THE COMMUNICATION DATED 6.8.2021 ISSUED BY THE 2ND RESPONDENT Exhibit P8 TRUE PHOTOCOPY OF THE ORDER DATED 15.11.2021 ISSUED BY THE 2ND RESPONDENT Exhibit P9 TRUE PHOTOCOPY OF THE APPEAL DATED 3.12.2021 FILED BY THE PETITIONER BEFORE THE PANCHAYAT Exhibit P10 TRUE PHOTOCOPY OF THE ORDER DATED 6.1.2022 REJECTING THE APPEAL ISSUED BY THE 2ND RESPONDENT RESPONDENT EXHIBITS Exhibit R3 A THE TRUE COPIES OF THE PHOTOGRAPHS SHOWING THE CORRECT POSITION OF THE THREE STANDING OVER THE RESIDENTIAL BUILDING Exhibit R3 B THE TRUE COPIES OF THE PHOTOGRAPHS SHOWING THE CORRECT POSITION OF THE THREE STANDING OVER THE RESIDENTIAL BUILDING Exhibit R3C THE TRUE COPIES OF THE PHOTOGRAPHS SHOWING THE CORRECT POSITION OF THE THREE STANDING OVER THE RESIDENTIAL BUILDING W.P.(C).No.2349/2022

RESPONDENT EXHIBITS Exhibit R3D THE TRUE COPY OF THE DECISION NO:8/1 DATED 13.10.2021 OF THE COMMITTEE OF THE 1ST RESPONDENT Exhibit R3 E THE TRUE COPY OF THE REPORT DATED 28.10.2021 OF THE SUB-COMMITTEE.

Exhibit R3 F THE TRUE COPY OF THE UNANIMOUS DECISION NO: 10/1 DATED 28.10.2021 OF THE COMMITTEE OF THE 1ST RESPONDENT