Kerala High Court

Prabhakaran vs Kakkodi Grama Panchayath on 20 April, 2023

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
 THURSDAY, THE 20TH DAY OF APRIL 2023 / 30TH CHAITHRA, 1945
                   WP(C) NO. 7330 OF 2023
PETITIONER/S:

    1     SIVANANDAN,
          AGED 58 YEARS
          S/O VASU (LATE), "RISHIVAM", THERUVATH THAZHAM
          ROAD, KAKKODI, KIZHAKKUMURI.P.O., KOZHIKODE, PIN -
          673611
    2     REENA,
          "RISHIVAM", THERUVATH THAZHAM ROAD, KAKKODI,
          KIZHAKKUMURI.P.O., KOZHIKODE, PIN - 673609
          BY ADVS.
          B.PREMNATH (E)
          SARATH M.S.


RESPONDENT/S:

    1     KAKKODI GRAMA PANCHAYATH,
          KAKKODI.P.O., KOZHIKODE,
           REPRESENTED BY ITS SECRETARY,, PIN - 673611.

    2     THE SECRETARY,
          KAKKODI GRAMA PANCHAYATH, KAKKODI.P.O.,
          KOZHIKODE, PIN - 673611.

    3     PRABHAKARAN,
          EDAKKATTU THAZHAM, KIZHAKKUMURI.P.O.,
           KOZHIKODE, PIN - 673611.

          BY ADVS.
          SC, Vinod Singh Cheriyan
          Srinath Girish P
          T.M.KHALID(K/000047/2013)
          K.P.SUSMITHA(K/956/2001)
          P.JERIL BABU(K/806/2009)
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 20.04.2023, ALONG WITH WP(C).10818/2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 7330 OF 2023 &
WP(C) NO. 10818 OF 2023          2
          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
 THURSDAY, THE 20TH DAY OF APRIL 2023 / 30TH CHAITHRA, 1945
                   WP(C) NO. 10818 OF 2023
PETITIONER/S:

          PRABHAKARAN,AGED 62 YEARS
          S/O. NARAYANAN, EDAKKATU THAZAM, KIZHAKKUMURI P.O.,
          KAKKODI, KOZHIKODE, PIN - 673611.

          BY ADVS.
          SRINATH GIRISH
          P.JERIL BABU
          V.NAMITHA
          PRASUDHA.S


RESPONDENT/S:

    1     KAKKODI GRAMA PANCHAYATH,
          KAKKODI P.O., KOZHIKODE,
          REPRESENTED BY ITS SECRETARY, PIN - 673611.

    2     SECRETARY,
          KAKKODI GRAMA PANCHAYAT, KAKKODI P.O.,
          KOZHIKODE, PIN - 673611.

    3     SIVANANDAN,
          AGED 58 YEARS
          "RISHIVAM", THERUVATH THAZHAM ROAD, KAKKODI,
          KIZHAKKUMURI P.O., KOZHIKODE, PIN - 673611
    4     REENA,AGBED 50 YEARS,
          "RISHIVAM", THERUVATH THAZHAM ROAD, KAKKODI,
          KIZHAKKUMURI P.O., KOZHIKODE, PIN - 673611
          BY ADVS.
          SC, VINOD SINGH CHERIYAN
          Premnath B
          T.M.KHALID(K/000047/2013)
          K.P.SUSMITHA(K/956/2001)
          SARATH M.S.(K/000361/2018)
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.04.2023, ALONG WITH WP(C).7330/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 7330 OF 2023 &
WP(C) NO. 10818 OF 2023
                                                   3



                                 VIJU ABRAHAM, J

                    WP(C) Nos.7330 & 10818 of 2023
                                              th
              Dated this the 20                    day       of   April 2023

                                 J U D G M E N T

WP(C) No. 7330/2023 is filed seeking a direction to

respondents nos. 1 and 2 to implement the decision in Ext P3 rd notice, directing the 3 respondent to cut and remove the

coconut trees situated in his property whereas WP(C) No. rd 10818/2023 is filed by the 3 respondent in WP(C) No.

7330/2023 challenging Ext P2 notice (produced as Ext P3 in

WP(C) No.7330/2023).

2. The contentions raised by the petitioners in WP(C)

No. 7330/2023 is that two of the coconut trees situated in the rd property of the 3 respondent, who is the petitioner in WP(C)

No. 10818/2023, are leaning towards the house of the

petitioners and is in a dangerous condition causing a threat to

the life and property of the petitioners. Thereupon, Ext P1

complaint was preferred before the 1st respondent and based rd on the same Ext P3 order was issued directing the 3 WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023

respondent to cut and remove the coconut trees as in the

preliminary inspection conducted it is revealed that the trees

are lying in a dangerous situation. As no action was taken,

Ext P4 petition was filed.

3. A detailed counter affidavit has been filed by

respondent no. 3 mainly contending that the petitioners and the rd 3 respondent have various other disputes between them.

rd The petitioners have never requested the 3 respondent to cut

and remove the said trees and further that the coconut trees

are of a young age of less than 10 years and pose no danger

to the petitioners and that the trees have been tied with iron

wires to prevent them from leaning to the property of the

petitioners. Regarding another issue of pollution against the

petitioner Ext R3(1) complaint dated 02.12.2022 was submitted

before the respondent panchayat. When the official of the rd panchayat came to the spot, it was assured that the 3

respondent will be called for a hearing but without granting

such opportunity Ext P3 has been issued. Thereupon, Ext

R3(2) and R3(3) requests were submitted before the respondent WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023

panchayat for affording an opportunity of hearing. In Ext R3(3) rd the 3 respondent has specifically stated that he is ready to

strengthen the trees once again by tying them with steel wire

and that if the said attempt fails, he is ready to cut down the

respondent relies on the judgment in Rajkumar rd trees. The 3

v. Mathaikutty, 2013 KHC 2251 in support of his contention. A st reply was also filed by the 1 petitioner reiterating the

contentions in the writ petition and also contended that the

official respondents have no authority to review the decision

contained in Ext P3 order. Ext P6 photograph was also

produced to show that the coconut trees are leaning towards

the property of the petitioners. In WP(C) No. 10818/2023, the rd petitioner (3 respondent in WP(C) No. 7330/2023) reiterated

the same contentions taken in the counter affidavit filed in

WP(C)No.7330/2023. An interim order of stay of the operation

of the impugned order was also granted.

4. I have considered the rival contentions of the parties.

rd The only contention raised by the 3 respondent is that he

must be granted an opportunity of being heard before Ext P3 WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023

order is implemented. Ext R3 (2) and Ext R3(3) are the

requests that he has made before the panchayat to grant him rd an opportunity of hearing. In Ext R3(3), the 3 respondent

has specifically stated that he is ready to strengthen the trees

once again by tying them with steel wire and that if the said

attempt fails, he is ready to cut down the trees. Whereas the

contention of the petitioner in WP(C)No.7330/2023 is that no

opportunity of hearing need be issued in as much as Ext P3

has been issued on the authorities being satisfied regarding the

danger in the inspection conducted by them. The learned

counsel for the 3rd respondent who is the petitioner in WP(C)

No.10818/2023 relies on the judgment of the Division Bench of

this Court in Rajkumar's case supra and paragraph 7 of the

said judgment reads as follows:

7: Now the question is whether an enquiry is

contemplated under S.238(1) (a) which is under S.238(1)(b).

Though in many words enquiry is not indicated under S.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 WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023

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 taken action without even

understanding the case of the other side. Both under S.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.

5. Going by the dictum laid down by the Division

Bench, the principle of natural justice requires the grant of

opportunity of hearing to the owner of the property.

6. In view of the above, I am of the opinion that the 3

respondent, who is the petitioner in WP(C) No. 10818/2023 has

to be given an opportunity of being heard before further steps

are initiated pursuant to Ext P3 notice. Therefore, the above

writ petitions are disposed of directing the Village Panchayat, st i.e., the 1 respondent in WP(C) No. 7330/2023 to hear the

petitioners as well as the third respondent, who is the

petitioner in WP(C) No. 10818/2023, and also taken into WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023

consideration Ext R3(2) and R3(3) requests, before taking any

further action pursuant to Ext P3 order.

7. To facilitate speedy disposal of the matter, the rd petitioners as well as the 3 respondent in WP(C) No. st 7330/2023 shall be heard by the 1 respondent Village

Panchayat within an outer limit of 10 days from the date of

receipt of a copy of this judgment, and take a final decision in

the matter within a further period of 1 week and communicate

the decision to the petitioners as well as the 3rd respondent.

Further proceedings in the matter shall be initiated subject to

the outcome of the final decision to be taken as directed

above. Till such a decision is taken as directed above, the

be in force.

Both the writ petitions are disposed of as above.

sd/-

VIJU ABRAHAM, JUDGE

R.AV WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023

APPENDIX OF WP(C) 7330/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT, DATED 27.10.2022 Exhibit P2 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE 1ST RESPONDENT ON 27.10.2022 TO THE PETITIONER Exhibit P3 TRUE COPY OF THE NOTICE NO.400974/PSD(T02)/GPO/2022/6284(2) ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT, DATED 29.01.2023 Exhibit P4 TRUE COPY OF THE COMPLAINT FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT, DATED 22.02.2023 Exhibit P5 TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER, DATED 22.02.2023 Exhibit-P6 True copy of the photographs showing the coconut trees leaning towards the property of the petitioners Exhibit-P7 True copy of the complaint filed by the petitioners before the Station House Officer, Chevayur, dated 14.12.2022 Exhibit-P8 True copy of the photograph showing the portion of the boundary and compound wall between the property of the petitioners and the property of the 3rd respondent

RESPONDENT EXHIBITS Exhibit R3(1) A true copy of the complaint dated 02.12.2022 submitted by R3 before the Secretary, Kakkodi Grama Panchayat with the acknowledgment receipt

Exhibit R3(2) A true copy of the representation dated 08.02.2023 submitted by R3 before the Secretary, Kakkodi Grama Panchayat along with the receipt Exhibit R3(3) A true copy of the representation dated 22.02.2023 submitted by R3 before the Secretary, Kakkodi Grama Panchayat WP(C) NO. 7330 OF 2023 & WP(C) NO. 10818 OF 2023

APPENDIX OF WP(C) 10818/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE COMPLAINT DATED 02.12.2022 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, KAKKODI GRAMA PANCHAYATH Exhibit P2 TRUE COPY OF THE NOTICE OF THE DECISION TAKEN BY THE 1ST RESPONDENT PANCHAYAT DATED 29.01.2023 Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 08.02.2023 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, KAKKODI GRAMA PANCHAYATH Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 22.02.2023 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, KAKKODI GRAMA PANCHAYATH