IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 WP(C).No. 2508 of 2011(K) -------------------------------- PETITIONER(S): ------------------- M.A.REFEEQUE, AGED 37 YEARS, S/O.ABOOBACKER, MUTHEDAM HOUSE, KANDANTHARA, VENGOLLA VILLAGE KUNNATHUNAD TALUK, ALLAPARA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADVS. SRI.SHIRAZ ABDULLA SRI.JOJO PAPPACHAN RESPONDENT(S): -------------------- 1. THE VENGOLA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, VENGOLA P.O., ERNAKULAM DISTRICT - 683 54. 2. RASHEED, AGED 35 YEARS, S/O.HAMEED, PATTARUMADOM HOUSE, VENGOLA VILLAGE, KUNNATHUNAD TALUK, ALLAPARA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT - 683 553. R1 BY ADV. SRI.SIRAJ KAROLY R2 BY ADV. SRI.P.THOMAS GEEVERGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.2508 of 2011 ---------------------------- Dated 21st February, 2011 JUDGMENT The petitioner is the absolute owner in possession of 13 cents of land comprised in Re-survey Block No.20 and resurvey No.19/10 of Vengola Village of Kunnathunadu Taluk. The grievance of the petitioner is that the second respondent who is the owner of the neighbouring property is carrying out illegal and unauthorized construction thereon and even after issuing Ext.P4 stop memo as early as on 10.1.2011 the first respondent Panchayat is not taking any further action thereon. It is in the said circumstances that this writ petition has been filed mainly with the prayer to issue a writ of mandamus commanding the first respondent to take effective steps for the implementation of Ext.P4 stop memo issued to the second respondent and for such other reliefs. 2. I have heard the learned counsel for the petitioner and also the learned standing counsel for the first respondent. 3. Alleging encroachment upon the property belonging to the petitioner as also puramboke land, the petitioner has earlier filed O.S.No.10 of 2011 before the Munsiff's Court, Perumbavoor and it is still pending. The petitioner has taken out a commission and the said original suit is now posted for commissioner's report and hearing. The WP(C).No.2508/2011 2 contention of the petitioner is that he did not make the Panchayat a party to the original suit on the bona fide belief that the second respondent had effected construction without any permission from the Panchayat and mainly encroaching the puramboke land. According to him, it was only thereafter that he came to know about the issuance of Ext.P4 stop memo dated 10.1.2011 by the first respondent to the second respondent. It is further contended that after the institution of the above mentioned original suit the petitioner has issued notice as contemplated under section 249 of the Kerala Panchayat Raj Act (for short `the Act'). The contention of the petitioner is that in view of the provisions thereunder he can institute a suit against the Panchayat only after the expiry of the period specifically mentioned under section 249 of the Act. I cannot countenance with the said contention especially in the light of the decision of this Court in Mammadhan Kutty v. Pallivasal Grama Panchayat (2004 (1)KLT 751). It is held therein that ultra vires actions are not protected by any exclusionary clause in section 249 of the Panchayat Raj Act and therefore, if the action on the part of the respondent Panchayat is ultra vires, then such action is not protected by the exclusionary clause under section 249 of the Act. That apart, evidently, the subject matter in this writ petition as also in the above mentioned original suit are in effect one and the same. The grievance of the petitioner in both the original suit and this writ petition is against the WP(C).No.2508/2011 3 alleged unauthorized construction being carried out by the second respondent in the property lying near to his property. The petitioner has already filed a suit. He has taken out a commission and it now stands posted for commissioner's report and hearing. In view of the said position obtained in this case, I am of the considered view that the petitioner has to pursue with the original suit and in case of necessity it will be open to the petitioner to take steps for impleading the Panchayat in the said proceedings. Any finding or observation by this Court in this proceeding may hamper the prospects of the parties, either that of the petitioner or the second respondent, in the said suit. At any rate, I am of the view that the petitioner cannot maintain this writ petition. It is further made clear that the disinclination of this Court to entertain this writ petition shall not prejudice the petitioner and it will be open to the petitioner to take appropriate contentions based on the stop memo, in accordance with law, in the said original suit. Subject to the said observation, this writ petition is dismissed. It is made clear that this Court has not made any observation as to the merits of the contentions. Sd/- C.T.RAVIKUMAR Judge TKS