Allowed

Laya Jose P.J. v. Revenue Divisional Officer

Kerala HC2 Mar 2023WP(C)/32757/2022

Case brief

AI extract

What is this about?

Petitioners sought directions for the maintenance of a neglected property adjacent to their residence, which became a hiding place for venomous snakes following a child's death by snakebite. The Court noted the statutory powers of local authorities under the Kerala Panchayat Raj Act and Kerala Municipality Act to abate such nuisances.

What did the court decide?

Directive issued to the Additional Chief Secretary to direct all local authorities to take action under the relevant Acts to clean and maintain neglected properties and abate nuisances.

Laya Jose P.J. Vs Revenue Divisional Officer — Property and Title | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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THURSDAY, THE 2ND DAY OF MARCH 2023 / 11TH PHALGUNA, 1944

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WP(C) NO. 32757 OF 2022

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PETITIONERS:

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1 LAYA JOSE P.J. , AGED 31 YEARS W/O. BINOY K I., KACHAPPILLY HOUSE KUNDOOR P.O, ALAMATTOM THRISSUR -680 734

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2 BINOY KACHAPPILLY ITTIACHAN AGED 36, S/O ITTIACHAN, NOW RESIDING AT VIA GRAMSCI, N14 RACCUJA (ME) 98067. REPRESENTED BY POWER OF ATTORNEY HOLDER PD JOSE, AGED 64 YEARS, S/O DEVASSY, PARAKKATT HOUSE, KRISHNANKOTTA P.O, THRISSUR - 680 733

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3 P D JOSE, AGED 64 YEARS, S/O DEVASSY PARAKKATT HOUSE, KRISHNANKOTTA P.O THRISSUR - 680 733

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BY ADV MILLU DANDAPANI

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RESPONDENTS:

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1 REVENUE DIVISIONAL OFFICER, 1ST FLOOR, CIVIL STATION ANNEXE, IRINJALAKUDA, THRISSUR, KERALA - 680 125

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2 THE SECRETARY, POYYA GRAMA PANCHAYTH, 6768+W54, POOPATHY, MUKUNDAPURAM, POYYA P.O, THRISSUR - 680 733

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3 SICILIACHAN,S/O PHILIP, KURUSHINCKAL, ANAPUZHA, METHALA VILLAGE, THRISSUR - 680 667

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4 MANUEL, S/O PHILIP, KURUSHINCKAL, ANAPUZHA, METHALA VILLAGE, THRISSUR - 680 667

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5 CRONIL JOSEPH,S/O PHILIP, KURUSHINCKAL, ANAPUZHA, METHALA VILLAGE, THRISSUR - 680 667

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6 HYSEL,S/O PHILIP, KURUSHINCKAL, ANAPUZHA, METHALA VILLAGE, THRISSUR- 680 667

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BY ADV Chacko C A

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OTHER PRESENT:

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SRI. SYAMANTHAK-GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 32757 OF 2022

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VIJU ABRAHAM, J

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WP(C) No.32757 of 2022

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Dated this the 2nd day of March 2023

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Petitioners have approached this court seeking a direction to the second respondent to take steps to clean the property of respondent Nos.3 to 6 by including it in the Mahatma Gandhi National Rural Employment Scheme, thereby protecting the life and property of the petitioners and nearby neighbours.

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Facts of the case in brief is as follows:- First petitioner is the mother, second petitioner is the father and the third petitioner is the grand father of Late Arawin. 3 year old Arawin succumbed to death due to snake bite on 24.03.2021. The property of the first and third petitioners is surrounded by the property owned by respondents 3 to 5. Respondents 3 to 5 are having an extent of 75 cents of property and the respondents were not keen in maintaining the property by cutting down the excess weeds and the property has become a place for venomous snake, jackal and other dangerous animals.

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WP(C) NO. 32757 OF 2022

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On several occasions petitioners had requested the respondents 3 to 5 to properly maintain the property and also to fill the well which is situated in the property which was not having a proper protection wall. The respondents 3 to 5 has not adhered to the request made by the petitioners. After the death of late Arawin, the nearby residence and neighbours submitted a joint representation before the Station House Officer. The second respondent-Secretary issued Ext P7 notice to respondents No.5 and 6 directing them to cut and remove the excess grass using a JCB without changing the nature of the property. On receipt of Ext.P7 notice, respondents 4 and 5 submitted Ext.P8 reply raising frivolous allegations and refused to clean up the property. Second respondent again issued Ext.P10 and Ext.P11 notice to respondents 4 and 6 to clean up the property and to close down the well. Thereafter, the petitioners approached the Revenue Divisional Officer and by Ext.P13 order the Revenue Divisional Officer directed the respondents to clean up the property having an extent of 75 cents and also to cover the well. Pursuant to the same, the well in property of the respondents 4 and 5 was filled up but

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WP(C) NO. 32757 OF 2022

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they did not take any steps to clean the property and therefore they have approached this Court seeking appropriate reliefs. Notice sent to the 3rd respondent has been returned with the endorsement ‘refused to accept’ and notices sent to respondents 4 to 6 were duly received but there is no appearance for them, before the Court.

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It is pertinent to extract the relevant provisions in the Kerala Panchayat Raj Act, 1994 regarding the power and duties of the Panchayat in dealing with such situations. Sections 238, 239 and 240, deals with the power of the Panchayat, is extracted below:

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238. Precautions in case of dangerous trees and pruning of hedges and trees. - (1) (a)

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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 the said tree or remove the fruits thereof so as to prevent any danger there from.

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(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 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 same manner as an arrear of public revenue due on land.

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[(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

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may, by notice, require the owner of such tree to cut down and remove such tree or branch thereof.]

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(2) The Secretary of a village panchayat may without notice. -

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(a) trim or prune any hedge bordering on a public street so that it may not exceed such height from the level of the adjoining roadways as may be provided for this purpose; or

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(b) cut and trim any hedge or tree overhanging the said trees and obstructing it or the view of traffic or causing damage to it; or

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239. Power of Panchayat for carrying out their functions. - (1) A Panchayat shall exercise all the powers conferred on, and perform all the functions entrusted to that Panchayat by or under this Act or any other law and shall also exercise such other powers and perform such other functions as may be conferred on or entrusted to it by the Government for carrying out the provisions of this Act.

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(2) A Panchayat shall have power to do all acts necessary for and incidental to, carrying out the functions entrusted or delegated to it.

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(3) Without prejudice to the generality of the foregoing power,

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a village panchayat shall have power, - (a) to require by notice, the owner or occupier of any land or building which is a nuisance to the neighbourhood on

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account of -

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( i ) its insanitary conditions; or

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(ii) the collection of any drainage, filth or stagnant water thereon; or

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(iii) the existence of will or noxious vegetation thereon; or

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(iv) the presence of poisonous reptiles or other harmful animals or insect.

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(b) to take such action as it deems necessary to abate the nuisance within a reasonable period to be specified in such notice;

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(c) to prohibit the use of the water of any stream, well, pond or any other excavation believed to be dangerous to public health; and

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(d) to regulate or prohibit the watering of cattle or bathing or washing in any stream, well, pond or other excavation reserved for drinking water.

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Notices etc .

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WP(C) NO. 32757 OF 2022

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240. Form the notices and permissions time for complying with notices,

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orders etc. and powers to enforce them. - (1) All notices and permissions given issued or granted as the case may be, under the provisions of this Act shall be in writing and be signed by the Secretary of the Panchayat concerned. (2) Whenever by any notice, requisition or order under this Act or under any rule or byelaw made thereunder, any person is required to execute any work, to take any measures or to do anything, a reasonable time shall be fixed in such notice, requisition or order within which the work shall be executed, the measures taken or the thing done.

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(3) If such notice, requisition or order is not complied within the time so fixed - (a) the Secretary, may, with the approval of the Panchayat concerned, cause such work to be executed, or may take any measures or do anything which may, in his opinion, be necessary for giving due effect to the notice, requisition or order; and the cost incurred by the panchayat in this connection may be recovered from the owner or occupier of the premises in the same manner as if the same were taxes due to the Panchayat; and

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(b) if no penalty has been specifically provided in this Act fob failure to comply with such notice, requisition or order, the said person shall be punishable with fine not exceeding five hundred rupees for every such offence.

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A reading of Section 238, 239 and 240 make it

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explicitly clear that the Panchayat has wide powers in the matter of averting danger to the public. Likewise in the Kerala Municipality Act 1994 also similar provisions have been incorporated in Chapter XIX under the head “nuisances” and relevant provisions for consideration of the issue involved in this case are Sections 412, 426 to 430 and Sections 490 of the Kerala Municipality Act 1994. Relevant provisions in the Kerala

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WP(C) NO. 32757 OF 2022

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Municipality Act 1994 is extracted below:-

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CONTROL OVER ABANDONED LANDS, UNTRIMMED HEDGES, ETC.

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Untenanted buildings or lands. — Where any building or land, by reason of abandonment, disputed ownership or other cause remains untenanted, and thereby becomes a resort of idle and disorderly persons or where, in the opinion of the Secretary, becomes a nuisance, the Secretary may, after due inquiry, by notice, require the owner or person claiming to be the owner to secure, enclose, clear or cleanse the same within a reasonable time specified in the notice.

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Removal of filth or noxious or wild vegetation. — The Secretary may, by notice, require the owner or occupier of any building or land which appears to him to be in a filthy or unwholesome state, or over-grown with any thick, noxious or wild vegetation, trees or undergrowth injurious to health or offensive to the neighbourhood, to clear, cleanse or otherwise put the land in proper state or to clear away and remove such vegetation, trees or undergrowth within twenty four hours or such longer period not exceeding forty eight hours and in such manner as may be specified in the notice.

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Securing trees adjacent to house or well .— Where it appears to the Secretary that any tree or branch of any tree is likely to be a nuisance to the adjacent houses or wells or tanks, the Secretary may, by notice, require the owner of the said tree to chop, secure or cut down the said tree within such time as may be specified in the notice, which shall not exceed fortyeight hours, so as to prevent the nuisance therefrom.

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Fencing of buildings or lands and printing of hedges and trees. — The Secretary may, by notice, require the owner or occupier of any building or land near a public street to(a) fence the same to the satisfaction of the Secretary.; or

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(b) trim or prune any hedges bordering on the said street so that it may not exceed such height from the level of the adjoining road-ways as the Secretary may determine; or

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(c) cut and trim any hedge or tree overhanging the said street and obstructing it or the view of traffic or causing it damage; or

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WP(C) NO. 32757 OF 2022

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(d) lower an enclosing wall or fence which by reason of its height and situation obstructs the view of the traffic so as to cause danger.

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Clause (a) substituted by clauses (a) & (aa) by Act 14 of 1999, w.e.f. 24-3-1999.

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Secretary to act in default. — Where any person fails to comply with a requisition made by the Secretary under sections 426, or section 427, or section 428 or section 429, the Secretary may, without prejudice to any other action that may be taken against such person, cause the act or the work mentioned in that section to be done and the expenses incurred thereby may be recovered from such person in such manner as arrears of property tax under this Act.

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CONTROL OVER INSANITARY BUILDINGS

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Power of Secretary to issue directions to abate nuisance .— (1) Where the Secretary is satisfied that any act or omission, place or thing which causes or is likely to cause injury, danger, annoyance, disturbance or offence to the sense of sight, smell or hearing or to rest or sleep or which is or may be dangerous to life or injurious to health or property of any person or persons, he may issue such direction to such person at whose instance, he has reason to believe that such nuisance is caused or such act or omission it is likely to be caused and take all steps as may be required to abate the said nuisance within such time as may be specified in the notice which shall not exceed forty eight hours.

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(2) Any person to whom a direction has been issued under sub-section (1) shall be bound to comply with such direction within such time as may be specified therein and any person failing to comply with the direction shall be liable to prosecution.

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6. Learned standing counsel for the Panchayath

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submitted that they have issued direction to respondents 3 to 6 and pursuant to the direction issued by the Panchayath, they have taken steps to clean the property till November and it is

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WP(C) NO. 32757 OF 2022

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further submitted that whenever required further direction will be issued to respondents 3 to 6 to clean up the property and if there is any laches on their part in complying with the direction, the respondent-Panchayath will take up the cleaning activities and recover the cost from respondents 3 to 6. Therefore, the writ petition is disposed of directing the second respondent to see that the property having an extent of 75 cents owned by respondents 3 to 6 is duly cleaned up whenever required by issuing necessary direction to respondents 3 to 6 in this regard. Respondents 3 to 5 shall be obliged to comply with

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the directions issued by the Secretary in this regard. If any default is committed by respondents 3 to 6 in complying with the said direction, the Secretary shall invoke the power under Section 240 and clean up the property and thereafter recover the cost from respondents 3 to 6.

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This is a very unfortunate case where a kid

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aged 3 years succumbed to death due to snake bite. It is alleged in this writ petition that the unfortunate incident happened for the reason that the neighbouring property owned

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by respondent Nos. 3 to 6 was not properly maintained

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by cutting down the excess weeds and the property has become place for venomous snake, jackal and other dangerous animals. This Court is taking note of the fact that there are such unattended properties through out the State, resulting in growth of weeds and making it a place for venomous reptiles and other dangerous animals. If this issue is left unattended, there is every chance for such incident to happen in future also. It is the duty of the Local Self Government Institutions to take remedial measures to avert such incidents in future and they are fully equipped with ample power both under Kerala Panchayat Raj Act as well as Kerala Municipality Act as extracted above.

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This Court is of the opinion that this is a matter of public importance affecting the citizens and the authorities should be compelled to exercise the powers extended to them as per the statutes, to avert such unfortunate incidents. Therefore, there will be a direction to the Additional Chief Secretary to the Local Self Government Department, Government Secretariat, Thiruvananthapuram to issue necessary

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direction to the Secretaries of all the local authorities in the

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WP(C) NO. 32757 OF 2022

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State to take appropriate action as contemplated in Sections 238 to 240 of the Kerala Panchayat Raj Act 1994 and in Sections 412, 426 to 430 and Section 440 of the Kerala Municipality Act, 1994, so that such unfortunate incidents does not happen in future. Necessary directions in this regard shall be given to all the local authorities without any delay, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Registry to communicate the said order to the Additional Chief Secretary to the Local Self Government Department, Government Secretariat, Thiruvananthapuram for information and prompt compliance. This Court would hope and trust that the Government and the local authorities in the State will rise to the occasion and put things into action, without waiting for another unfortunate incident like in this case, to happen.

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With the above said directions, the writ petition is disposed

of.

sd/-

VIJU ABRAHAM, JUDGE

R.AV

WP(C) NO. 32757 OF 2022

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APPENDIX OF WP(C) 32757/2022

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`PETITIO`	`NER EXHI`	`BITS`
`Exhibit`	`P1`	`TRUE COPY OF THE` `24.03.2021 ISSUED` `HOSPITAL`	`OP TICKET NO 288 DTD` `BY THE GOVT TALUK`
`Exhibit`	`P2`	`TRUE COPY OF THE` `BY THE MALA POLIC`	`FIR NO. 0227 REGISTERED` `E STATION DTD 24.03.2021`
`Exhibit`	`P3`	`TRUE COPY OF THE` `P.M.NO. 459/2021` `27.03.2021`	`POST MORTEM REPORT NO` `OF DECEASED ARAWIN DTD`
`Exhibit`	`P4`	`TRUE COPY OF THE` `DTD 25.05.2022 IS`	`CHEMICAL REPORT NO .3020` `PRODUCED`
`Exhibit`	`P5`	`TRUE COPY OF THE` `SUBMITTED BY NEAR` `20.04.2021`	`JOINT REPRESENTATION` `BY RESIDENCE DATED`
`Exhibit`	`P6`	`TRUE COPY OF THE` `RESPONDENT NOTICE` `21.04.2021`	`NOTICE ISSUED TO THE 4TH` `NO. A1-2200/2021 DATED`
`Exhibit`	`P7`	`TRUE COPY OF THE` `RESPONDENT NO. A1` `28.04.2021`	`NOTICE ISSUED 4 TO 5TH` `220/2021 DATED`
`Exhibit`	`P8`	`TRUE COPY OF THE` `RESPONDENTS 4 TO`	`REPLY SUBMITTED BY THE` `6 DATED 29.04.2021`
`Exhibit`	`P9`	`TRUE COPY OF THE` `SUBMITTED BY THE` `NEARBY NEIGHBORS` `RESPONDENTS DTD.`	`JOINT REPRESENTATION` `3RD PETITIONER AND THE` `BEFORE THE 2ND` `30.04.2021`
`Exhibit`	`P10`	`TRUE COPY OF THE` `3RD PETITIONER BY` `07.05.2021`	`NOTICE ISSUED BY TO THE` `THE 2ND RESPONDENT DATED`
`Exhibit`	`P11`	`TRUE COPY OF THE` `3RD PETITIONER BY` `07.05.2021`	`NOTICE ISSUED BY TO THE` `THE 2ND RESPONDENT DATED`
`Exhibit`	`P12`	`TRUE COPY OF THE` `SUBMITTED BY THE` `1ST RESPONDENT DT`	`WRITTEN EXPLANATION` `3RD PETITIONER BEFORE THE` `D 22.07.2021`
`Exhibit`	`P13`	`TRUE COPY OF THE` `02.09.2021 ISSUED`	`ORDER NO C1-8132/2021 DTD` `BY THE 1ST RESPONDENT`
`Exhibit`	`P14`	`TRUE COPY OF THE` `VILLAGE OFFICER P` `11.11.2021`	`REPORT SUBMITTED BY THE` `OYYA NO 337/2021 DTD`
`Exhibit`	`P15`	`TRUE COPY OF THE` `03.01.2022`	`ORDER NO C1-8132/2021 DTD`
`Exhibit`	`P16`	`TRUE COPY OF THE`	`REPRESENTATION SUBMITTED`

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WP(C) NO. 32757 OF 2022

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BY THE 3RD PETITIONER ALONG WITH
ACKNOWLEDGMENT RECEIPT DTD 07.04.2022
Exhibit P17TRUE COPY OF THE POWER OF ATTORNEY
ACCEPTED BY THE 3RD PETITIONER DTD
04.09.2019

Laya Jose P.J. v. Revenue Divisional Officer

Case brief

What is this about?

What did the court decide?

Laya Jose P.J. v. Revenue Divisional Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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