IMPORTANT POINTS
Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law.

JUDGMENT :

1. The petitioner, who is the owner of a building bearing No.XV-26, 27 and 28 of the 1st respondent Grama Panchayat, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to implement Ext.P4 order dated 19.02.2019 issued by the 2nd respondent, who is the Secretary of the 1st respondent Grama Panchayat, whereby the 3rd respondent, who is the neighbouring property owner, is required to cut and remove within seven days, the branches of a mango tree protruding into the petitioner's property and building and also to cut and remove the coconut tree causing nuisance and damage to his building on account of falling of coconuts on the tiles.

2. On 10.06.2019, when this writ petition came up for admission, this Court issued urgent notice on admission by speed post to the respondents, returnable within three weeks.

3. On 03.07.2019, when this writ petition came up for consideration, this Court noticed that in view of the decision in Joseph v. Kadanad Grama Panchayat [2019 (3) KHC 545], exercise of power under sub-section (1) of Section 238 of the Kerala Panchayat Raj Act, 1994 can only be by the Village Panchayat and not by the Secretary of the Grama Panchayat. Having considered the submissions made by the learned counsel for the petitioner and also the learned Standing Counsel for respondents 1 and 2, this Court deemed it appropriate to implead the Director of Panchayats as additional 4th respondent.

4. Heard the learned counsel for the petitioner, the learned Standing Counsel for the respondent Grama Panchayat representing respondents 1 and 2 and also the learned Senior Government Pleader appearing for the additional 4th respondent.

5. The sole issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for a writ of mandamus commanding respondents 1 and 2 to implement Ext.P4 order dated 19.02.2019 of the 2nd respondent Secretary.

6. In Joseph's case (supra), this Court held that the difference, which is discernible from the language of sub-section (1) and sub-section (2) of Section 238 of the Act is that, sub-section (1) empowers the Village Panchayat to take appropriate measures when any branch or portion of a tree or the fruits of any tree is likely to fall and thereby endanger any person or any structure or any cultivation. Though clause (a) of sub-section (1) contemplates a notice by the Village Panchayat to the owner of the said tree, requiring him to secure, lop or cut down the said tree or remove the fruits thereof, so as to prevent any danger therefrom; clause (b) of sub-section (1) empowers the Village Panchayat to secure, lop or cut down the said tree or remove the fruit thereof, etc. before giving notice under clause (a) of sub-section (1) or before the period of such notice expire, if immediate action is necessary. On the other hand, sub-section (2) of Section 238 empowers the Secretary of the Village Panchayat, without notice trim or prune any hedge bordering on a public street; cut and trim any hedge or tree overhanging the said street and obstructing it or the view of traffic or cause damage to it; or remove fallen trees on public roads and water ways which obstruct traffic. Paragraphs 5 to 8 of the said judgment read thus;

“5. Section 238 of the Act deals with precautions in cases of dangerous trees and pruning of hedges and trees. Subsection (1) of S.238 deals with the powers of a Village Panchayat. As per clause (a) of sub-section (1) of S.238, if any tree or any branch or portion of a tree or the fruits of any tree 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 therefrom. As per clause (b) of sub-section (1), if immediate action is necessary, the Vil