RAGHUVARA PANICKER R Vs. SECRETARY

JUDGEMENT

(1.) THE petitioner and the second respondent are neighbours. The petitioner challenges orders issued by the Ombudsman for Local Self government institutions on a complaint by the second respondent alleging inaction of the first respondent, the Secretary of a Grama Panchayat, on his complaint regarding overhanging branches of a tree belonging to the petitioner. The writ petitioner appeared before the Ombudsman. It was noticed by the learned Ombudsman that the second respondent stands to face a suit filed by the petitioner for injunction against trespass and felling of the tree by committing trespass. Learned Ombudsman rightly took the view that the pendency of that suit will not stand in the way of the panchayat authorities exercising statutory jurisdiction under the Kerala Panchayat raj Act, 1994, hereinafter the 'act', for short. It was also noted that the Panchayat is not a party to that suit. Accordingly, Ext. P-4 was issued, requiring the Secretary of the Panchayat to look into the objections of the petitioner and consider the request of the second respondent herein and to proceed with the matter in accordance with law. This is under challenge.

(2.) IT is true that the learned Ombudsman has stated in Ext. P-4 that the aforesaid shall be done, if necessary, with police protection. While the learned counsel for the petitioner points out that the Ombudsman had no jurisdiction to issue an order for police protection, I am clear in my mind that Ext. P-4 does not contain any direction to any police authority. It only alerts the panchayat officials that in case it ultimately issues orders against the petitioner and the situation warrants intervention of police to secure enforcement of such an order, the panchayat authorities shall not desist from doing the needful even by applying for police interference. In my view, Ext. P-4, in no manner, indicates the decision that the secretary of the panchayat may take.

(3.) AFTER Ext. P-4 was issued, the authorities were again heard by the learned ombudsman. That led to the issuance of Ext. P-5. It was stated in that order that the secretary of the panchayat can make a local inspection and issue appropriate directions to the petitioner, if found necessary. It is also stated that the local inspection should be with notice to the petitioner and the second respondent. That order is criticized as one in excess of jurisdiction in as much as, according to the petitioner, the spread of authority of the learned Ombudsman in Chapter XXV B of the Act does not provide any authority to interfere in such matters and issue directions as has been done. It is also argued that by virtue of the provisions in Section 238 of the act, the secretary does not have the power to decide on the issue as to whether the tree has to be felled or trimmed or whether one of its branches has to be cut down. Relying on the decision reported in Thankamma v. Ezhumattur Grama panchayat, 2001 (2) K. L. T. 596 it is pointed out by the petitioner that action could follow only from the panchayat and not from the secretary and the power of the secretary gets confined to sub-section 2 of Section 238.