IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 WP(C).No. 13515 of 2011(L) ---------------------------------------- PETITIONER(S): ----------------------- ELISHWA, W/O.JOSEPH, AGED 89 YEARS, PULIYEZHATH HOUSE, ELAMKUNNAPUZHA, OCHANTHURUTHU P.O., ERNAKULAM. BY ADV. SRI.B.S.SWATHY KUMAR, SMT.ANITHA RAVINDRAN. RESPONDENT(S): ------------------------- 1. ELAMKUNNAPUZHA GRAMA PANCHAYAT, MALIPPURAM P.O., ERNAKULAM - 682 511, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, ELAMKUNNAPUZHA GRAMA PANCHAYAT, MALIPPURAM P.O., ERNAKULAM - 682 511. 3. SHEELA BENNAN, W/O.BENNAN, KALARICKAL HOUSE, WARD NO.9, ELAMKUNNAPUZHA, OCHANTHURUTHU P.O., ERNAKULAM-682 508. R1 & R2 BY ADV. SRI.S.SHANAVAS KHAN. R3 BY ADV. SRI.T.B.THANKAPPAN, SRI.T.T.HARIKUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 13515 of 2011(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMPLAINT FILED BEFORE THE SUB INSPECTOR OF POLICE, NJARACKAL DATED 02/01/2010. EXT.P2: COPY OF THE COMPLAINT FILED BEFORE THE SUB INSPECTOR OF POLICE, NJARACKAL DATED 31/01/2011. EXT.P3: COPY OF THE NOTICE NO.A5/1824/11 DATED 08/03/2011 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE REPLY FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 21/03/2011. EXT.P5: COPY OF THE REQUEST FILED BEFORE THE 2ND RESPONDENT DATED 11/04/2011. EXT.P6: COPY OF THE NOTICE NO.A5/1824/11 DATED 09/05/2011 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R3(a): COPY OF THE JOINT PETITION FILED BEFORE THE SI OF POLICE, NJARACKAL AGAINST THE SON OF THE PETITIONER. EXT.R3(b): COPY OF THE RECEIPT RECEIVED EVIDENCING THE RECEIPT OF EXT.R3(a) BY THE LOCAL POLICE. EXT.R3(c): COPY OF THE LETTER ADDRESSED TO THE SI OF POLICE, NJARACKAL BY THE FIRST RESPONDENT PANCHAYATH DATED 03/10/2009. EXT.R3(d): COPY OF THE NOTICE DATED 08/03/2011. EXT.R2(a): COPY OF THE COMPLAINT DATED 21/02/2011 FILED BY THE 3RD RESPONDENT. EXT.R2(b): COPY OF THE REPORT DATED 08/03/2011 OF THE PANCHAYAT. EXT.R2(c): COPY OF THE HEARING NOTICE DATED 08/03/2011 ISSUED BY THE PANCHAYAT. EXT.R2(d): COPY OF THE LETTER DATED 10/03/2011 OF THE PETITIONER. EXT.R2(e): COPY OF THE LETTER DATED 03/03/2011 ISSUED BY THE ADDITIONAL SECRETARY, CHIEF MINISTERS PUBLIC GRIEVANCE REDRESSAL CELL. WP(C).No. 13515 of 2011(L) EXT.R2(f): COPY OF THE LETTER DATED 15/03/2011 ISSUED BY THE PANCHAYAT. EXT.R2(g): COPY OF THE OBJECTION DATED 21/03/2011 FILED BY THE PETITIONER'S SON. EXT.R2(h): COPY OF THE OBJECTION DATED 11/04/2011 FILED BY THE PETITIONER'S SON BEFORE THE PANCHAYAT. //TRUE COPY// P.A. TO JUDGE rs C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 13515 OF 2011 -------------------------------------------- Dated this the 20th day of June, 2011 JUDGMENT The petitioner who is an octogenarian filed this Writ Petition mainly challenging Ext.P6 and seeking issuance of writ in the nature of mandamus commanding respondents 1 and 2 to serve on her a copy of the complaint mentioned in Ext.P6 and to make a physical inspection of the site and pass orders in accordance with law after affording her an opportunity of being heard. Essentially, the grievance of the petitioner is that before passing Ext.P6 order that virtually carries a direction to the petitioner to cut and remove two trees standing in her property, she was not served with the copy of the complaint referred to therein besides denial of an opportunity of being heard. 2. Respondents 1 and 2 have jointly filed a statement and the third respondent has filed a separate counter affidavit in this Writ Petition. Along with the statement, respondents 1 and 2 have produced a copy of the report dated 8.3.2011 that formed the basis for Ext.P6. The contention of the petitioner is that nothing is discernible from the said report as to who had prepared the said report. At any rate, it was prepared behind her back W.P.(C) NO.13515/2011 2 and she was not offered an opportunity of being heard after serving a copy of the same, it is further contended. The contentions in the counter affidavit filed by the third respondent is that the trees in question are standing in such a slanting position to pose danger to the lives of herself and also her family members. It is in the said circumstances that she was constrained to prefer a complaint before the panchayat that culminated in Ext.P6. The third respondent refuted the contention of the petitioner in regard to the violation of the principles of natural justice relying on documents produced by the petitioner herself and also by respondents 1 and 2. According to the third respondent, Ext.R2(c) and R2(f) would reveal that notice was served on the petitioner and the petitioner was required to appear before the second respondent on the dates specifically mentioned thereunder to have a deliberation on the issue. The contention of respondents 1 and 2 is that on receipt of Ext.R2(f), the son of the petitioner had appeared before the second respondent and he had submitted Ext.R2(g) reply. In fact, the said document has been produced by the petitioner herself as Ext.P4. Thus, according to the petitioner, she was not actually afforded with an opportunity of being heard and according to the respondents, there was no violation of the principles of natural justice W.P.(C) NO.13515/2011 3 warranting interference. However, there is no dispute with regard to the fact that the report produced along with the statement filed by the first and second respondents was relied on by them to arrive at a decision that the trees in question are posing danger to the lives of the third respondent and her family. There is nothing on record to show as to who had prepared the said report. At any rate, there is no case for the respondents that it was prepared after conducting an inspection with notice to the petitioner or that before passing orders as per Ext.P6, a copy of the same was given to the petitioner and that she was given an opportunity to raise her contentions after perusing the same. Thus, in the totality of the circumstances, I am of the considered view that the second respondent shall consider the matter afresh after putting the petitioner as also the third respondent on notice and afford them an opportunity of being heard. Prior to that, the said authority shall conduct an inspection of the property of the petitioner to see whether the trees in question are standing in such a position to pose any threat to the lives of the third respondent and members of her family. Such an inspection shall be conducted by the second respondent after serving notice to the petitioner or an adult member of her family and also to the W.P.(C) NO.13515/2011 4 third respondent. A decision shall, then, be taken as aforesaid. The entire exercise shall be completed within a period of two weeks from the date of receipt of a copy of this judgment. It will be open to the parties to produce a copy of this judgment before the second respondent to enable him to comply with the directions. This Writ Petition is disposed of, accordingly. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.13515/2011 5 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.13515/2011 6