Yesudas and Aneesh K.A. v Pallippuram Grama Panchayath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 24TH DAY OF FEBRUARY 2014/5TH PHALGUNA, 1935 WP(C).No. 4306 of 2014 (K) --------------------------- PETITIONERS: --------------- 1. YESUDAS, S/O.JOSEPH PUTHENVEETTIL PALLIPPURAM PANCHAYATH, KUZHUPPILLY VILLAGE. 2. ANEESH K.A., S/O.ANDAVAN KAITHAKKATTU, PALLIPPURAM PANCHAYATH KUZHUPPILLY VILLAGE. BY ADVS.SRI.DINESH R.SHENOY SMT.N.ANJALI KUM.T.S.SAUMYA SRI.H.KIRAN SMT.N.M.SHEENA DAS SMT.DRISYA SURENDRAN RESPONDENT: ---------------- THE PALLIPPURAM GRAMA PANCHAYATH CHERAI- 683 514, REP. BY ITS SECRETARY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4306 of 2014 (K) --------------------------- ## APPENDIX ## PETITIONERS' EXHIBITS --------------------------- - EXT.P1 - TRUE PHOTOCOPY OF SALE DEED NO.1843/2012 KUZHUPPILLY DATED 18-9-2012 - EXT.P2 - TRUE PHOTOCOPY OF TAX RECEIPT DATED 4-11-2013 - EXT.P3 - TRUE PHOTOCOPY OF LOCATION SKETCH AND CERTIFICATE DATED NIL - EXT.P4 - TRUE PHOTOCOPY OF ORDER NO.9241/2012 DATED 5-3-2013 ISSUED BY THE RESPONDENT. - EXT.P5 - TRUE PHOTOCOPY OF SKETCH AND MAHAZAR DATED NIL PREPARED BY THE VILLAGE OFFICER, KUZHUPPILLY. - EXT.P6 - TRUE PHOTOCOPY OF AUCTION NOTICE 2014-15 DATED 28-1-2014 ISSUED BY THE RESPONDENT - EXT.P7 - TRUE PHOTOCOPY OF LAWYER NOTICE DATED 23-1-2014 ISSUED BY ADVOCATE K.SHAJU VARGHESE. ## RESPONDENTS' EXHIBITS : NIL ----------------------------- // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ------------------------------ W.P.(C)No.4306 of 2014 ------------------------------Dated 24[th] February, 2014 ## **JUDGMENT** The petitioners claim to be the absolute owners in possession of 8.09 ares of land in Resurvey No.136/6 Block I (Old Survey No.35/28-3) of Kuzhuppilly Village. The petitioners purchased the property as per Ext.P1. Subsequent to its purchase they got it mutated in their name. According to the petitioners, the previous owners of the property had constructed an embankment along the eastern side of the property, facing the Periyar river, for the purpose of docking, fishing and passenger boats. The said boat jetty has been in existence for the past several decades. It is the further contention of the petitioners that the other riparian proprietors have also constructed similar embankments and boat jetties at their own costs alongside the same river. While so, the Panchayat issued Ext.P4 order directing the petitioners that they should not trespass into the thodu puramboke in Survey No.137 on the south of their property. It is the case of the petitioners that they have got no intention to trespass into the thodu puramboke on the south of their property. It is also their case that on 20.1.2014 some officers attached to the office of the respondent came to the property in question and tried to demolish and remove the coconut stumps and other tree stumps planted on the east of the WP(C).No.4306/2014 2 embankment abutting the Periyar river. The petitioners contend that after making such attempts they told the petitioners that the Panchayat would auction the right to the embankment/boat jetty on the eastern side of the petitioners' property. Later, Ext.P6 auction notice was also issued. It is the further case of the petitioners that though such embankments/boat jetties are constructed by the other owners also no such notices were served on them and the petitioners alone were chosen to proceed against. In the said circumstances, the petitioners caused issuance of Ext.P7 lawyer notice. Evidently, in Ext.P7 it has been stated that the petitioners are intending to institute a suit and essentially, it is a notice issued to satisfy the provisions under Section 249 of the Kerala Panchayat Raj Act. According to the petitioners, the said embankment/boat jetty has been in existence for the past 100 years. It is also stated therein that the only intention of the petitioners is to effect repair and maintain the embankment and they have got no intention to put up any new construction. The petitioners were constrained to move this Court by filing the captioned writ petition on the ground that they are legally disabled from filing a civil suit for a period of one month after issuance of the suit notice in terms of the provisions under Section 249(1) of the Kerala Panchayat Raj Act. It is specifically stated in the writ petition that the auction was proposed to be held on 17.2.2014. In WP(C).No.4306/2014 3 the said circumstances, it is contended that the petitioners got no alternative and efficacious remedy other than to move this Court under Article 226 of the Constitution of India for invoking the extraordinary jurisdiction. Essentially, the prayer of the petitioners in this writ petition is for issuance of a writ of mandamus commanding the respondent Panchayat to keep all further proceedings for auction of the right to dock boats at the embankment/boat jetty on the eastern boundary of the petitioners' property in abeyance for a period of one month. Evidently, this writ petition has been moved with the aforementioned prayer only with a view to acquire the right to move the civil court at the appropriate time in view of the bar under Section 249 of the Kerala Panchayat Raj Act (for short `the Act'). 2. I have heard the learned counsel for the petitioners. 3. In the context of the contentions, it is relevant to advert to the relevant portion of Section 249 of the Act and the same reads as follows:- “ **249. Institution of suits against authorities of Panchayats, their officers, etc.** - (1) No suit, or other civil proceedings against a Panchayat or against the President, the Vice-President or any other member, or employee thereof or against any other person acting under the direction of the WP(C).No.4306/2014 4 Panchayat or any member or employee thereof for anything done or purporting to be done under this Act in its or his official capacity,- (a) shall be instituted until the expiration of one month after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the nature of the relief which he claims, has been, in the case of Panchayat delivered or left at the office of the Panchayat and in the case of a member, employee or person as aforesaid delivered to him or left at his office or at his usual place of abode and the plaint shall in each such case contain a statement that such notice has been so delivered or left; or ....” 4. As noticed hereinbefore, the contention of the petitioners is that even if the Panchayat or any member or employee of the Panchayat exceeds of their action while doing something purported to be under the Act such action got the protection under Section 249 of the Act and therefore, it would not be possible for the aggrieved parties to move Civil Court before the expiry of the period stipulated under Section 249(1)(a) of the Act. I have already adverted to the contentions of the petitioners. It is the specific contention of the petitioners that it is the previous owners of the property who constructed the embankment or boat jetty and it has been in existence for the past 100 years or thereabouts. It is the further contention that all the other embankment owners had also effected similar constructions. At the same time, no WP(C).No.4306/2014 5 action was taken against them and only in the case of the petitioners that such a notice of auction was issued in respect of the embankment within the possession of the petitioners. If the action on the part of the petitioners or the previous owners of the property in constructing embankment alongside Periyar river merely because of being a riparian proprietor is an illegality the aforesaid construction cannot be sustained in the light of the decisions of the Hon'ble Supreme Court in **State of Bihar** v. **Kameshwar Prasad Singh (AIR 2000 SC 2306)** and **Bhalla K.K.** v. **State of M.P. (AIR 2006 SC 898)** where it was held that no equality can be claimed in illegality. However, I do not think it proper to consider the legality or otherwise of the said action or alleged action from the part of the respondent firstly, on the ground that the petitioners themselves admitted the nature of the dispute as civil by issuing the aforesaid notice and in the absence of any contention regarding violation of any fundamental rights. If the contention of the petitioner is that the action on the part of the respondent is _ultra vires_ then the decision of this Court in **Mammadhan Kutty** v. **Pallivasal Grama Panchayat (2004 (1) KLT 751)** would assume relevance. The tenor of the pleadings in this writ petition as also Ext.P7 notice would undoubtedly make it clear that the petitioners themselves admit the fact that the dispute involved in this writ petition is of civil nature. In the said WP(C).No.4306/2014 6 circumstances that they caused issuance of Ext.P7 notice on the respondent. In the decision in **Mammadhan Kutty's** case (supra) this Court held that none of the provisions under the Act enables the Panchayat or its Officers to encroach into the property of third parties and therefore, any action of such nature would be plainly _ultra vires_ and further that _ultra vires_ actions are not protected by the exclusionary clause in Section 249 of the Act. The expression `exclusionary' was presumably employed in the said judgment taking note of the fact that in the light of the provisions under Section 249 of the Act the right to sue would be available only after the expiry of one month after the notice in writing. At the same time, going by the decision, it has been specifically held that any _ultra vires_ action from the part of any Panchayat or its officers would not be protected by the provisions under Section 249 of the Act and therefore, in such circumstances, there would not be any bar for instituting or for entertaining a suit. However, it is for the petitioners to establish that the action impugned is _ultra vires_ . As noticed hereinbefore, the petitioners themselves admit the fact that the issue involved in this case is of civil nature. In matters of civil nature this Court would not be justified in exercising the jurisdiction and if the writ petition is not to be entertained on account of involvement of a civil dispute and also on the basis of involvement of disputatious facts and in WP(C).No.4306/2014 7 the absence of violation of any fundamental right I am of the view that this Court cannot entertain the writ petition. I am of the view that merely because the petitioners caused issuance of Ext.P7 notice that will not act as a bar for instituting a suit if the action on the part of the respondent is actually _ultra vires_ and in which event the exclusionary clause under Section 249 of the Act would not be attracted. In the circumstances, this writ petition is dismissed subject to the above observations. Sd/C.T.RAVIKUMAR Judge TKS