IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 WP(C).No. 30468 of 2009(C) -------------------------------- PETITIONER: -------------- SALIHA NOORUDEEN, W/O.NOORUDEEN, RESIDING AT HENNA COTTAGE, THAMPURAN ROAD, NORTH BEYPORE, KOZHIKODE-15. BY MR.C.P.MOHAMMED NIAS, ADVOCATE. RESPONDENTS: ------------------ 1. THE SECRETARY, BEYPORE GRAMA PANCHAYATH, BEYPORE, KOZHIKODE. 2. P.SATHEESHCHANDRAN, THAMPURAN ROAD, NORTH BEYPORE, KOZHIKODE-15. ADDL.R3 IMPLEADED: ADDL. R3. THE STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM (IMPLEADED VIDE ORDER DT.27.10.09). BY MR.K.M.MOHAMMED KUNHI, ADVOCATE, FOR R1. MS.RUKHIYABI MOHD KUNHI, ADVOCATE, FOR R1. MR.M.C.SEN (SR), ADVOCATE, FOR R2. MS.SHAHNA KARTHIKEYAN, ADVOCATE, FOR R2. MS.N.SUDHA DEVI, GOVERNMENT PLEADER FOR ADDL.R3. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.30468/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF NOTICE No.C8.6614/09 DTD. 16.10.09 ISSUED BY R1. EXT. P2 : COPY OF REPRESENTATION SUBMITTED BY PETITIONER BEFORE R1 DTD. 22.10.09. EXT. P3 SERIES: COPIES OF PHOTOGRAPHS SHOWING THE COCONUT TREES STANDING IN THE PETITIONER'S PROPERTY. EXT. P4 : COPY OF RECEIPT No.1795 DTD. 24.10.09 ISSUED FROM THE BEYPORE GRAMA PANCHAYATH TO THE PETITIONER. EXT. P5 : COPY OF REPRESENTATION DTD. 21.12.09 MADE BY PETITIONER BEFORE R1. 1ST RESPONDENT'S EXHIBITS: EXT. R1(a) : COPY OF MINUTES OF JOINT MEETING HELD ON 10.09.2009. EXT. R1(b) : COPY OF RESOLUTION No.109(1)/09 DTD. 13.10.09. EXT. R1(c) : COPY OF COMPLAINT BY R2 DTD. 17.7.09. 2ND RESPONDENT'S EXHIBITS: EXT. R2A : COPY OF PROCEEDINGS OF THE MEETING HELD AT PANCHAYATH OFFICE DTD. 10.9.09. EXT. R2B : COPY OF PHOTOGRAPH OF COMPOUND WALL. EXT. R2C : COPY OF PHOTOGRAPH SHOWING the POSITION OF COCONUT TREES WHICH ARE SLANTING ON THE TILED ROOF. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.30468 OF 2009 --------------------------------------- Dated this the 9th day of June, 2010. J U D G M E N T The petitioner is aggrieved by Exhibit P1 notice issued by the Panchayath to cut down certain coconut trees which, according to the Panchayath, are in a dangerous situation and causes threat to the life and property of the neighbour of the petitioner. Seven days time was given to cut and remove the trees. The petitioner submitted Exhibit P2 reply and aggrieved by the decision taken, this writ petition has been filed. 2. The respondents 1 and 2 have filed counter affidavits in the matter. Learned counsel for the petitioner submitted that the petitioner was surprised to receive Exhibit P1 notice and the direction was issued without conducting an enquiry in the matter or a local inspection by any competent officer of the Panchayath. It is pointed out that a copy of the complaint submitted by the 2nd respondent was not given to the petitioner. 3. Exhibit P3 photographs have been produced by the W.P.(C) No.30468/2009 2 petitioner to show that the coconut trees are standing beside the compound wall separating the properties of the petitioner and the 2nd respondent. The crux of the argument is that if a proper site inspection is made by any authority, it will be seen that the trees are not in a dangerous condition. 4. The above contentions are opposed by the learned Senior Counsel appearing for the 2nd respondent. The 2nd respondent's case is that the petitioner had actually participated in the enquiry conducted on 10.09.2009 in the office of the Panchayath in which she was personally present and the minutes have been signed acknowledging her presence. It is further pointed out that the petitioner had admitted that there is threat from the coconut trees to the 2nd respondent and she agreed that as soon as she gets a worker the coconut trees will be cut and removed. Exhibit R2A is the copy of the proceedings of the meeting held in the Panchayath office on 10.09.2009. Exhibit R2B is the copy of the photograph of the compound wall. 5. Apart from that the resolution of the Panchayath Committee dated 13.10.2009 has been produced in the counter W.P.(C) No.30468/2009 3 affidavit filed by the Panchayath as Exhibit R1(b). The allegations made in the writ petition have been denied by the Panchayath. It is averred that, on getting the complaint dated 17.07.2009, the matter was brought to the notice of the President and Chairman of the Standing Committee and the same was given to the Ward L.D.C for enquiry and report on the same day. He submitted his report on 24.07.2009 confirming the allegations in the petition as true. Again a joint meeting was held on 10.09.2009 wherein the petitioner, her son, Chairman of the Development Committee and Chairman of the Welfare Committee and the 2nd respondent participated. 6. It is the definite case of the Panchayath that during the discussion, the petitioner agreed to cut and remove those coconut trees which are dangerous to the inmates of the 2nd respondent's house. Since the petitioner did not comply with the assurance made by her in the meeting, the Sanitary Inspector of the Panchayath inspected the site on 06.10.2009 and found that the threat to the life of the 2nd respondent and his family members is still subsisting. Again the meeting of the W.P.(C) No.30468/2009 4 Panchayath Committee held on 13.10.2009 passed a resolution directing the Secretary to issue notice to the petitioner in the matter. It is pointed out that after the receipt of the objections, the same had to be placed before the Panchayath Committee by the Secretary but it could not be done, in the light of the interim order passed in this case. 7. Learned counsel for the petitioner vehemently submitted that the entire action is taken without following any due procedure. What is projected by the learned counsel is that even the minutes have been fabricated to show that the petitioner has agreed for the cutting of the trees in question. 8. Learned Senior Counsel appearing for the 2nd respondent submitted that these arguments have been raised only now when the petitioner is confronted with the copy of the minutes Exhibit R1(a) and the resolution of the Panchayath Committee. 9. I find force in the above submission. What is projected in the writ petition is that Exhibit P1 notice was issued by the Secretary without any due enquiry and that the Committee alone is empowered to take action. The fact that the petitioner had W.P.(C) No.30468/2009 5 participated in the joint meeting is clear from the counter affidavits filed by the respondents 1 and 2. The proceedings of the said Committee shows that the meeting was attended by various functionaries of the Panchayath including the President and Chairman of the Standing Committee. Therefore, it cannot be said that there was no proper deliberation by the authorities of the Panchayath before they ventured into the present action. It is not a decision of the Secretary, but the Committee itself had decided the matter, by Exhibit R1(b) resolution. 10. Even if the contention of the petitioner that the petitioner did not agree for cutting the coconut trees is taken in its face value, I am satisfied that the Panchayath Committee had acted in a proper manner. The resolution dated 13.10.2009 shows that after the receipt of the complaint, in terms of the directions issued by the President of the Panchayath, the L.D.Clerk Sri.Vibeesh visited the site for conducting a local enquiry on 24.07.2009 and accordingly he submitted a report stating that the allegations are true. After a period of one month, on 28.08.2009, again he conducted a local inspection and W.P.(C) No.30468/2009 6 then a report was given to the Panchayath stating that necessary and proper measures have not been taken by the petitioner. It is accordingly thereafter the petitioner and her son were invited for a meeting on the crucial date on which they were present in the Panchayath. Therefore, it is not as if the Panchayath did not conduct any enquiry or get a report in the matter. Even if an argument is raised that the petitioner is not obliged to cut and remove the trees merely based on the alleged admission, in the light of the fact that the reports submitted by the officers justify the allegations contained in the complaint, the resolution of the Panchayath cannot be faulted as they were satisfied about the veracity of the allegations. 11. The particular provision namely, Section 238 of the Panchayath Raj Act enables the Panchayath Committee to direct the person concerned to ward off nuisance or cut down any tree if it is likely to fall and endanger any person or structures or any cultivation. Therefore, there cannot be any allegation of lack of jurisdiction on the Panchayath Committee also. Even though the learned counsel for the petitioner submitted that the action taken W.P.(C) No.30468/2009 7 is too hasty and without giving any proper notice to the petitioner, going by the averments in the counter affidavit, it can be seen that they have taken various steps in the matter and the action was finalised only during the course of three months after the date of receipt of the complaint. If that be so, it cannot be said that the action is in violation of the principles of natural justice. 12. Learned counsel for the petitioner then submitted that the petitioner ought to have been given an opportunity to provide safety measures or protective measures so that danger and the nuisance alleged by the 2nd respondent can be kept minimum. It is pointed out that the trees in question are not standing in a dangerous condition requiring cutting and removal. Learned counsel further submitted that a senior officer of the Panchayath may conduct a visit to find out the actual position. Learned Senior Counsel appearing for the 2nd respondent submitted that in the light of the decision arrived at by the Panchayath already, no such procedure is required to be done. 13. The plea raised by the petitioner that the Panchayath W.P.(C) No.30468/2009 8 has acted illegally in issuing Exhibit P1 notice cannot be accepted. Hence, the prayer to quash Exhibit P1 and the consequential action is rejected. Since the petitioner maintains the plea that the trees are not in a so dangerous condition requiring cutting down of them, there will be a direction to the Secretary of the Panchayath to conduct a visit to the site within a period of two weeks and report the matter to the Panchayath. On the basis of such report, the Panchayath will take steps to implement the resolution already taken, if it is reported by the Secretary that the trees are in a dangerous condition requiring their removal. Learned Senior Counsel for the 2nd respondent submitted that the 2nd respondent is prepared to bear the expenses for cutting down the trees. Therefore, at the expense of the 2nd respondent, the trees can be cut down if it is found that they require removal. This writ petition is disposed of as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp