IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 RSA.No. 351 of 2004() --------------------- AS.106/2000 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.694/1996 of I ADDL.MUNSIFF COURT, TRIVANDRUM .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------- 1. VENGANOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VENGANOOR GRAMA PANCHAYAT, VENGANOOR, THIRUVANANTHAPURAM. 2. THE SECRETARY, VENGANOOR GRAMA PANCHAYAT, VENGANOOR, THIRUVANANTHAPURAM (PRESENTLY N.NAGAPPAN NAIR, RETIRED SECRETARY, VENGANOOR GRAMA PANCHAYAT AND RESIDING AT `SAPTAM', PACHALLOOR P.O., THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM. 3. PREMAN, PANCHAYAT VICE PRESIDENT, VENGANOOR GRAMA PANCHAYAT, VENGANOOR, THIRUVANANTHAPURAM (PRESENTLY: PREMACHANDRAN, EX-VICE PRESIDENT, `ROHINI', PERINGAMMALA, KALLIYOOR P.O., THIRUVANANTHAPURAM DISTRICT). BY ADV. SRI.M.RAMACHANDRAN NAIR “ SRI.J. HARIKUMAR RESPONDENT(S): RESPONDENT/PLAINTIFF: -------------------------------------------------------------- K.SUKUMARAN, S/O. KRISHNAN NADAR, PULLANNIVILA VEEDU, V.P.IV/432, VENGANOOR, THIRUVANANTHAPURAM DISTRICT. ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR FOR R1 SRI.PIRAPPANCODE V.S.SUDHEER FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29 / 9/ 2011 THE COURT ON 29/09/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 351 OF 2004 =========================== Dated this the 29th day of September,2011 JUDGMENT Defendants in O.S.694/1996 on the file of Additional Munsiff Court, Thiruvananthapuram are the appellants. Respondent is the plaintiff in the suit. Respondent originally instituted the suit seeking a decree for permanent prohibitory injunction restraining the appellants and the first defendant Venganoor Grama Panchayat from removing the trees cut from the plaint schedule property alleging that appellants issued Ext.A2 notice dated 3.5.1996 directing the respondent to cut and remove a cashew tree alleging that its branches are hanging over the road, causing obstruction and inconvenience to the traffic along the road. The respondent objected to the notice. But without hearing the respondent, on RSA 351/2004 2 4.6.1996 appellants along with the police came to the property and cut and remove four trees standing within the plaint schedule property. It is contended that first appellant was acting as a tool of the second appellant, who was on inimical terms with the respondent and the trees were cut unlawfully. Subsequently plaint was amended seeking a decree for realisation of Rs.25,000/- alleging that inspite of the notice to cut and remove one cashew tree, four trees were illegally cut by the appellants and a loss of Rs.25,000/- was caused. Respondent issued Ext.B1 notice dated 15.11.1996 claiming a compensation of Rs.15,000/-. Respondent would contend that he is entitled to a decree for Rs.15,000/-. Appellants did not file written statements. 2. First defendant Panchayat filed a written statement contending that as provided under section 249 of Kerala Panchayat Raj Act, hereinafter referred to as the Act, respondent is entitled to institute a suit only after expiry of thirty days RSA 351/2004 3 from the date of serving a notice on the Panchayat and the statutory notice was not sent prior to the institution of the suit. It was also contended that and under section 250 of the Act, no suit or other legal proceedings shall lie against the President, Secretary, or employee of a Panchayat for anything which is done in good faith or intended to be done in pursuance of the official act and therefore the suit will not lie. The trees were cut in good faith and in exercise of the powers under the Act. It was contended that Secretary of the Panchayat received Ext.B2 petition signed by fifty five persons of the locality alleging that a cashew tree standing in the property of the respondent is causing nuisance to the traffic and the Secretary placed the memrandum before the Committee and Committee resolved to cut and remove the tree expeditiously and third defendant second appellant is Vice President of the Panchayat and second defendant, the first appellant, is the Secretary of the RSA 351/2004 4 Panchayat issued a notice based on the allegations contained in Ext.B2, to the respondent. The trees were cut with the help of Balaramapuram Police. First appellant cut one cashew tree and one mango tree on 4.9.1996 after preparing Ext.B5 mahazar. The logs of the trees, were entrusted to the wife of the respondent. Later Panchayat decided to auction the timber on 19.6.1996. Ext.B7 Notice was issued proclaiming sale of the logs of the trees. Meanwhile the suit was instituted seeking a decree for injunction and therefore the sale was postponed. After amendment of the plaint, an additional written statement was filed contending that the cut trees entrusted to the wife of the respondent were removed by the respondent's wife unauthorisedly. Hence Ext.B8 complaint was filed before the Balaramapuram Police. In such circumstances, respondent is not entitled to the decree sought for.l 3. Learned Munsiff on the evidence of Pws.1 to 3, Dws. 1 to 3, C1, Exts.A1 and A2 and B1 to B9 RSA 351/2004 5 dismissed the suit, holding that the suit is not maintainable as there is no valid notice as provided under section 249 of the Act. Learned Munsiff also found that defendants have acted in good faith in exercise of their powers under the Act and therefore they are not liable to pay any compensation. suit was dismissed. 4. Respondent challenged the decree and judgment before Additional District Court, Thiruvananthapuram in A.S.106/2000. Learned District Judge on reappreciation of the evidence found that evidence establishes that Ext.A2 notice was served on the respondent to cut and remove only one cashew tree, on the allegation that it is causing obstruction and nuisance to the traffic and pursuant to the notice instead of cutting the said cashew tree, with the help of Balaramapuram Police evidenced by Ext.B5 mahazar, three other trees were also cut by the officials of the Panchayat in addition to the cashew tree. It was found that the said act of the appellants is in colourful exercise RSA 351/2004 6 of the powers conferred under the Act and therefore it cannot be said to be a bona fide act as provided under section 250 of the Act as it is not in exercise of the official act or purporting to be in the official act as the conditions provided under section 238 of the Act was not complied with. It was held that therefore without a notice under section 249, suit is maintainable. It was therefore found that the trial court should have granted the compensation. Finding that the Commissioner has reported that the mango tree cut and removed was worth Rs.5000/- and jackfruit tree which was cut and removed would fetch Rs.200/-, it was found that respondent is entitled to a decree against defendants 2 and 3. The appeal was allowed and the suit was dismissed against the first defendant Panchayat but granted a decree against the appellants. Respondent was allowed to recover Rs.5200/- from the appellants. It is challenged in the second appeal. 5. The appeal was admitted formulating the RSA 351/2004 7 following substantial questions of law. 1. Is the notice sent after the filing of the suit valid as per law and if it is so, can it be treated as notice contemplated under section 249 of the Kerala Panchayat Raj Act, 1994? 2. Whether the Secretary and Vice President ought to be punished for their acts done in their official capacity and as authorised by the Panchayat? 6. Learned counsel appearing for the appellants and respondent were heard. 7. The argument of the learned counsel is that as is clear from the evidence, on receipt of Ext.B2 petition signed by 55 persons alleging that obstruction was caused to the traffic in the public road, first appellant Secretary of the Panchayat placed Ext.B2 before the Panchayat RSA 351/2004 8 Committee. On the decision of the Committee he issued Ext.A2 notice directing respondent to cut and remove the cashew tree, which is causing obstruction to the Panchayat road. The respondent did not cut and remove the same. Panchayat Committee hence authorised the Junior Superintendent of the Panchayat to implement the order with assistance of the police on 14.6.1996 the trees which were causing obstruction, were removed. The action of the first appellant was as the Secretary of the Panchayat, for and on behalf of the Panchayat. It is definitely an act done by the Secretary in his official capacity and therefore a suit is not maintainable without notice to the Panchayat and the Secretary as provided under section 249 of the Act. Learned counsel argued that though Ext.B1 notice was sent subsequent to the institution of the suit, as the suit was filed without a notice as mandated under section 249 of the Act on that sole ground, the suit should have been dismissed. Learned counsel RSA 351/2004 9 also argued that eventhough subsequent to the filing of the suit Ext.B1 notice was sent, no notice was sent to the Panchayat as provided under sub section (1) of Section 249 and without sending a notice to the Panchayat, notice sent to the Secretary alone is not sufficient compliance of the provisions of section 249 and first appellate court should not have interfered with the dismissal of the suit. Learned counsel also argued that though in the plaint it was alleged that it was at the instance of the second appellant, first appellant acted as his tool issued the notice and cut and removed the trees, no evidence was adduced to prove this allegation and instead records produced would establish that Secretary was acting in his official capacity bona fide and therefore under section 250 of the Act no suit will lie against the appellants and hence the decree granted by the first appellate court is not sustainable. Learned counsel also argued that there is no allegation that appellants demanded any bribe or had done it RSA 351/2004 10 for illegal gain and when Section 238 of the Act enables the Secretary to cut and remove the trees causing obstruction to the Panchayat road and based on Ext.B2 complaint received from the persons of the locality finding that the trees were causing obstruction, in exercise of the powers under section 238 of the Act, the trees were cut and in such circumstances, the decree granted is not sustainable. 8. Learned counsel appearing for the respondent pointed out that when suit was originally instituted for injunction, if the suit was to be instituted after sending notice and waiting for a period of 30 days, the apprehended act would have been over and therefore a suit for injunction without serving notice under section 249 of the Act is maintainable. Subsequent to the filing of the suit, Ext.B1 notice was served on the appellants who are defendants 2 and 3. Only thereafter, the plaint was amended claiming damages by amending the plaint. Therefore the claim for RSA 351/2004 11 damages was subsequent to compliance of the provisions of section 249 of the Act and therefore the suit cannot be dismissed for want of notice. Learned counsel also argued that even otherwise when the records establish that appellants did not act in accordance with the provisions of the Act, they cannot claim that the act was done in exercise of the powers provided under section 238 of the Act and therefore a suit will lie without a notice under section 249 and hence first appellate court was justified in granting the decree. Learned counsel also argued that when admittedly under Ext.A2 notice, respondent was directed to cut and remove only one cashew tree which was allegedly causing obstruction to the traffic, appellants cannot cut and remove three other trees as they have done, and justify the act as an official act and in such circumstances first appellate court rightly granted the decree and the appeal is only to be dismissed. 9. The appeal was admitted only on the RSA 351/2004 12 substantial questions of law based on the claim for compensation incorporated by amendment of the plaint subsequent to the filing of the suit, though Ext.B1 notice was sent before the application for amendment was moved. The question is by sending a notice subsequent to the institution of the suit, but before the amendment of the plaint claiming compensation, it could be said that there is no valid notice as provided under section 249 and therefore the suit is not maintainable. The question whether finding of the first appellate court that there was no necessity for a notice under section 249 of the Act, can be settled later as the substantial question of law formulated was only on the validity of Ext.B1 notice. 10. Though learned counsel appearing for the appellants vehemently argued that even a suit for injunction cannot be instituted without a notice as provided under sub section (1) of Section 249 of the Act, I cannot agree with the submission. Sub section (1) of Section 249 provides that no suit or RSA 351/2004 13 other civil proceedings against a Panchayat or against the President, the Vice-President or any other member, or employee thereof or against any other person acting under the direction of the Panchayat or any member or employee thereof for anything done or purporting to be done under the Act in its or his official capacity. (a) shall be instituted until the expiration of one month after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the nature of the relief which he claims, has been, in the case of a Panchayat delivered or left at the office of the Panchayat and in the case of a member, employee or person as aforesaid delivered to him or left at his office or at his usual place of abode and the plaint shall in each such case contain a statement that such notice has been so delivered or left. If plaintiff is apprehending a trespass or any such illegal act, which is sought to be prevented by a decree for injunction by instituting the suit, and the suit is to be RSA 351/2004 14 instituted only after serving notice under section 249 of the Act and waiting for a period of thirty days, the very purpose of the suit will be defeated. In such circumstances, when the suit is for injunction, it cannot be held that a suit will not lie without serving a notice as provided udner sub section (1) of Section 249 of the Act. Thus the suit for injunction originally filed is certainly maintainable. 11. When the plaint was amended seeking a decree for damages, by filing an application under Order VI Rule 17 of the Code of Civil Procedure , Ext.B1 notice was served on the first appellant Secretary of the Panchayat as well as the second appellant the Vice President of the Panchayat. True, no notice was served on the Panchayat. When sub section (1) of Section 249 would provide that no suit shall lie against the Panchayat without serving a notice or without delivering or leaving at the office of the Panchayat a notice as provided under sub section (1) of Section 249, a suit as RSA 351/2004 15 against the Panchayat will not lie without such a notice. But if a notice is served on the President, Vice President or any other member or employee of the Panchayat or the plaintiff has delivered a notice on any of them or left at the residence or at their usual place of abode and the suit was filed after thirty days thereafter, it cannot be said that the suit as against the President, Vice President, employee or other officials is not maintainable as no notice against the Panchayat was served. Similarly when the plaint was amended claiming a decree for damages against the Panchayat, the Secretary and the Vice President and notice was served, as provided under section 249(1), only on the Secretary and the Vice President, it cannot be said that the suit as against them will not lie for the reason that no notice was served on the Panchayat, though the suit as against the Panchayat will not lie. Similarly if the application for amendment was filed after the expiry of the period of thirty days, after RSA 351/2004 16 serving the notice on the appellants, it cannot be said that it was subsequent service of notice after the institution of the suit as notice was served before the plaint was amended claiming damages. Hence it is a valid notice. Therefore the suit is maintainable. The substantial questions of law are thus answered holding that though notice was not served under section 249 (1) of the Act, when the suit for injunction was filed, as Ext.B1 notice was served after filing of the suit and before the application for amendment of the plaint claiming damages was filed and allowed by the trial court and only after expiry of the period of the notice as provided under sub section (1) of Section 249 the plaint was amended the notice is valid and the suit is maintainable. 12. Though no substantial question of law was formulated, in the light of the argument of the learned counsel appearing for the appellants, it is necessary to consider the correctness of the findings of the first appellate court that RSA 351/2004 17 appellants are liable for damages as the trees were cut illegally and in violation of the provisions of the Act and therefore they are liable for the damages. 13. The facts are not disputed. Ext.A2 notice was served on the appellant directing to cut and remove one cashew tree, which was allegedly slanting towards the road and causing obstruction to the traffic or to appear and submit objections within seven days. Respondent did not file any written objection. Ext.A2 notice was served on the respondent, according to the appellants pursuant to Ext.B2 petition received by the first appellant Secretary, signed by 55 persons. The evidence of the second appellant, the third defendant show that Ext.B2 complaint was in fact received by him and it was he who submitted the petition before the first appellant Secretary. Ext.B2 shows an endorsement to the effect that the petition be placed before the Grama Panchayat Committee, for taking action to remove the tree. It is pertinent RSA 351/2004 18 to note that the allegation in Ext.B2 complaint is that one cashew tree standing on the boundary of the compound wall of the property of the respondent, one mango tree and one coconut tree are slanting towards the road and causing obstruction to the traffic. But in Ext.A2 notice, respondent was directed to remove only one cashew tree and not the mango and coconut tree mentioned in Ext.B2 complaint. Ext.B2 does not contain any other order, to show that it was placed before the Committee and the Committee decided to issue notice. Ext.B3 is the office copy of Ext.A2 notice, signed by the first appellant Secretary. It contains an endorsement that the notice could not be served on the respondent and therefore it was affixed at the house of the respondent on the failure of Pankajakshi his wife to receive the same. Ext.B3 also shows another endorsement dated nil, by the Secretary, to produce the previous files if any as well as the decision of the Committee. It also contains another endorsement RSA 351/2004 19 dated nil, whereunder the Junior Superintendent was authorised to conduct necessary steps to implement the notice. Ext.B4 is copy of the resolution of the Committee dated 18.5.1996. Ext.A2 notice was issued pursuant to the resolution of the Committee. But no such resolution was produced. Ext.B4 shows that the Committee resolved to seek assistance of the police to remove the tree, for the reason that though Ext.A2 notice was served, the tree was not removed and no claim was raised in respect of a mango tree which was standing on the side of the road and they are causing obstruction to the road, and are to be removed. It is pursuant to the said resolution, according to the appellants, the trees were cut with the assistance of the police. Ext.B5 mahazar shows that on 4.6.1996, one mango tree which was standing in the compound wall of the respondent and a cashew tree which was standing in the property of the respondent, which was directed to be removed by issuing a notice and resolved to be removed by the Committee, were cut in the RSA 351/2004 20 presence of the Sub Inspector of Police. The details of the two trees are shown in Ext.B5 mahazar. Ext.B5 also shows that the cut trees were entrusted with the wife of the respondent and the second appellant was the witness who affixed his signature, as admitted by him, when examined as DW3. The allegation of the respondent that in addition to the cashew tree referred in Ext.A2 notice, one mango tree which was admitted in Ext.B5 mahazar, one jack tree and cheelanthi tree were cut on 4.6.1996 was not disputed. This fact was admitted by the appellants when examined as DW1 and DW3. But Ext.B5 suppresses the cutting of the two other trees. The question is whether the action of the appellants in cutting the three trees not mentioned in Ext.A2 notice is in exercise of the powers conferred under the Act and if not , whether it was in compliance of the provisions of the Act. 14. Learned counsel appearing for the appellants vehemently argued that when the trees RSA 351/2004 21 are causing obstruction to the traffic as well as nuisance, under section 238 of the Act even without notice to the owners of the trees, Secretary is competent to cut the trees. The question is whether it is so. Section 238 reads:- 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 RSA 351/2004 22 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 RSA 351/2004 23 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 RSA 351/2004 24 height from the level of the adjoining roadways as may be provided for this purpose; (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 © remove fallen trees on public roads and water ways which obstruct traffic.” It is clear that under sub section (1), Panchayat is competent to cut and remove a tree or its branches, if the provisions of sub section (1) is satisfied. Under sub section (1) a notice is mandatory to the owner directing him to secure, lop, or cut down the tree or remove the fruits thereof so as to prevent any danger therefrom. But RSA 351/2004 25 such notice could be issued only if such 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