Dismissed

Radhakrishnan v. Vilappil Grama Panchayat

Kerala HC4 Jan 2023WP(C)/4493/2022

Case brief

AI extract

What is this about?

Petitioner challenged notices issued by the Panchayat Secretary directing tree removal. Court held the Secretary was without jurisdiction as the Panchayat Committee must initiate such proceedings. The resolution was set aside for violating natural justice by not hearing the owner.

What did the court decide?

Exts.P7 and P10 notices set aside. Direction to respondents to comply with prior judgment after hearing parties within one month.

Radhakrishnan Vs Vilappil Grama Panchayat — 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 MURALI PURUSHOTHAMAN

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WEDNESDAY, THE 4TH DAY OF JANUARY 2023 / 14TH POUSHA, 1944

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WP(C) NO. 4493 OF 2022

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PETITIONER:

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RADHAKRISHNAN

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AGED 42 YEARS

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S/O. LATE SASIDHARAN NAIR, HAVING PERMANENT RESIDENCE AT
PULINKODE PUTHEN VEEDU, VILAPPIL VILLAGE, KARODE MURI,
VIPALLIL P.O, THIRUVANANTHAPURAM - 695 573, NOW RESIDING AT
T.C. 42/466(2), JAI KRISHNA, PARAMBIL JUNCTION,
SREEVARAHAM, VALLAKADAVU P.O, THIRUVANANTHAPURAM - 695008.

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BY ADVS.
AYYAPPAN SANKAR
S.HRIDYA

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RESPONDENTS:

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1 VILAPPIL GRAMA PANCHAYAT REPRESENTED BY THE SECRETARY, VILAPPIL GRAMA PANCHAYAT, VILAPPIL GRAMA PANCHAYAT OFFICE, PEYAD, THIRUVANANTHAPURAM - 695573.

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2 VILAPPIL GRAMA PANCHAYAT COMMITTEE REPRESENTED BY THE PRESIDENT, VILAPPIL GRAMA PANCHAYAT, VILAPPIL GRAMA PANCHAYAT OFFICE, PEYAD, THIRUVANANTHAPURAM - 695573.

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3 SECRETARY VILAPPIL GRAMA PANCHAYAT, VILAPPIL GRAMA PANCHAYAT OFFICE, PEYAD, THIRUVANANTHAPURAM - 695573.

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4 SUNITHA AGED ABOUT /35 YEARS D/O. VASANTHA, PULINKODE PUTHEN VEEDU, VILAPPIL VILLAGE, KARODE, KARODE MURI, VILAPPIL P.O, THIRUVANANTHAPURAM -6 95573.

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BY ADV ATHIRA A.MENON

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.4493 of 2022.

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JUDGMENT

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th Dated this the 04 day of January, 2023 .

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The petitioner is the owner of 5 cents of property in Re-survey No.128/2017 in Vilappil Village and the 4^th respondent is the owner of the neighbouring property. The 4^th respondent has approached respondents 1 to 3 to cut and remove certain trees standing in the property of the petitioner stating that they pose threat to her life and property. The petitioner is challenging Exts.P7 and P10 notices issued by the 3^rd respondent, the Secretary of the Panchayat exercising powers under Section 238 (1) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act', for short) directing the petitioner to cut and remove the trees. According to the petitioner, the

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W.P.(C) No.4493 of 2022.

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Secretary has no jurisdiction to issue notices in the nature of Exts.P7 and P10 in terms of Section 238 (1) of the Act and it is for the Panchayat Committee to initiate proceedings under Section 238(1) of the Act. The petitioner states that, in spite of the specific direction of this Court in Ext.P4 judgment, the Panchayat Committee has not taken any decision exercising the powers under section 238(1) of the Act and Exts.P7 and P10 issued by the Secretary are without jurisdiction.

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A counter affidavit is filed by the 4th respondent. Along with the counter affidavit, she has produced Ext.R4(b) communication issued by the 3^rd respondent wherein it is stated that a decision has been taken by the Panchayat committee on 29.12.2021 as per resolution number 12(1) to cut and remove trees standing in the property of the petitioner posing danger to the 4^th respondent. Since the decision to cut and

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¶28

W.P.(C) No.4493 of 2022.

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remove the trees is taken by the Panchayat Committee, the Secretary has to implement the resolution of the Panchayat Committee.

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Heard Sri. Ayyappan Sankar, the learned counsel for the petitioners and Smt. Athira A. Menon, the learned counsel for the 4^th respondent. Despite service of notice, there is no appearance for respondents 1 to 3. Under Section 238 (1) of the Act, the Panchayat Committee is empowered to take action against the owner of the trees which pose threat to any person or any structure. A resolution has been passed by the Panchayat Committee on 29.12.2021 to cut and remove the trees. The said decision is not placed on record before this Court. It is not disputed before me that the said decision has been taken by the Panchayat Committee without hearing the petitioner. In the circumstances, Ext.P7 is set aside being issued by the

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W.P.(C) No.4493 of 2022.

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Secretary of the Panchayat without jurisdiction. Ext. P10 is also set aside since the same is issued on the basis of a decision of the Panchayat Committee passed in violation of the principles of natural justice. There will be a direction to respondents 1 and 2 to comply with the directions in Ext.P4 judgment after hearing the petitioner and the 4^th respondent. This shall be done within a period of one month from the date of receipt of a copy of this judgment. Till such time, the interim order passed by this Court in the writ petition will continue.

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Writ petition is disposed of.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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Raj 04.01.2023.

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¶39

W.P.(C) No.4493 of 2022.

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APPENDIX OF WP(C) 4493/2022

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PETITIONER EXHIBITS

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Exhibit P1TRUE PHOTOCOPY OF NOTICE DATED
4.8.2017 ISSUED BY 3RD RESPONDENT.
Exhibit P2TRUE PHOTOCOPY OF OBJECTION DATED
22.08.2017 SUBMITTED BY THE PETITIONER
TO EXHIBIT P1 NOTICE.
Exhibit P3TRUE PHOTOCOPY OF THE NOTICE DATED
09.08.2018 ISSUED BY THE 3RD
RESPONDENT.
Exhibit P4TRUE PHOTOCOPY OF JUDGMENT DATED
1.7.2019 IN WP(C) NO. 16187/2019.
Exhibit P5TRUE PHOTOCOPY OF THE PROVISIONAL
ORDER DATED 20.06.2019 ISSUED BY SUB
DIVISIONAL MAGISTRATE NEDUMANGAD IN
M.C.NO. 20/2019.
Exhibit P6TRUE PHOTOCOPY OF THE PHOTOGRAPHS (3
NOS), SHOWING THE PRESENT CONDITION OF
THE TREES.
Exhibit P7TRUE PHOTOCOPY OF THE NOTICE DATED
20.12.2021 ISSUED BY 3RD RESPONDENT.
Exhibit P8TRUE PHOTOCOPY OF THE OBJECTION DATED
24.12.2021 TO EXHIBIT P1 SENT BY
PETITIONER TO THE SECRETARY, VILAPPIL
GRAMA PANCHAYAT.
Exhibit P9TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT
RECEIPT SHOWING APPLICATION DATE AS
24.12.2021 ISSUED FROM THE OFFICE OF

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W.P.(C) No.4493 of 2022.

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VILAPPIL GRAMA PANCHAYAT.

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Exhibit P10TRUE PHOTOCOPY OF THE NOTICE BEARING
NO. A4/4059/21 DATED 04.02.2022 ISSUED
BY SECRETARY, VILAPPIL GRAMA
PANCHAYAT.

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RESPONDENT EXHIBITS

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Exhibit-R4(a)True copy of the newspaper published
in Malayalam daily dated nil
Exhibit-R4(b)True copy of the communication issued
by the 3rd respondent to the 4th
respondent dated 11.03.2022

Radhakrishnan v. Vilappil Grama Panchayat

Case brief

What is this about?

What did the court decide?

Radhakrishnan v. Vilappil Grama Panchayat

Case brief

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What did the court decide?

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