The Panchayat must provide a hearing and conduct an inquiry under Section 238 before directing the removal of a tree from private property.

JUDGMENT

Manjula Chellur, C.J.

The 1st respondent herein approached the learned Single Judge aggrieved by Ext.P2 proceedings of the 2nd respondent Secretary of Kottanadu Grama Panchayat under Section 238 of the Kerala Panchayat Raj Act , 1994 (for short 'the Act').

2. It is not in dispute that Ext.P2 order is the outcome of a resolution at Annexure A1 of Kottanadu Grama Panchayat. Learned counsel for the petitioner before the learned Single Judge contended, without hearing him, an 'Anjili' tree that was standing in his property for long time was directed to be removed within a period of 7 days after receiving Ext.P2 order. According to him, the said tree is not causing any threat or nuisance endangering the neighbouring property owner i.e. the appellant herein. According to him, Ext.P2 is nothing but an outcome of personal animosity by the present appellant against the writ petitioner and the appellant has influence with the Panchayat Committee.

3. So far as the appellant's contention before the learned Single Judge that there was no necessity even to hear the writ petitioner/the owner of the tree in question, if one has analysed the intention indicated at Section 238 (1) (a) of the Act. According to him, the Panchayat initiated action being convinced of the fact that there is likelihood of the 'Anjili' tree falling on the house of the appellant herein which may result in danger to the property as well as the life of the appellant and others. According to him, an enquiry and inspection of the site was made by the Secretary and only after being convinced that root of the tree was getting decayed, when the matter was placed before the Panchayat Annexure A1 resolution came to be passed. Several photographs came to be placed before the learned Single Judge.

4. After hearing both parties, the learned Single Judge proceeded to analyse the facts of the present case by placing reliance on Section 239 of the Act. Ultimately the learned Judge felt there was no need to interfere with Ext.P2 order issued by the Secretary, but, however, no action to cut and remove the disputed tree on the strength of Ext.P2 could be contemplated till proper orders are issued pursuant to the resolution of the Panchayat. The learned Judge further says Panchayat is at liberty to issue further orders in accordance with law.

5. After perusal of Sections 238 and 239 of the Act we are of the opinion, the learned Single Judge was not justified in placing reliance on Section 239 of the Act at all which contemplates general powers of Panchayat for carrying out their functions under the Act. Section 238 has two parts. Section 238 (1) (a), (b) and (c) refers to the powers of the Village Panchayat and Sub Section(2) of Section 238 refers to the powers of the Secretary of Village Panchayat. There is also indication with regard to the nature of property that could be dealt with by the Panchayat and also by the Secretary. Section 238 reads as follows:

“238 Precautions in case of dangerous trees and

pruning of hedges and trees.-- (1)(a) 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 therefrom.

(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 or 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.

[(c) If any tree or the branch thereof in the opinion of the Village Panchayat, causes pollution to the drinking water of a wel