IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 WP(C).No. 13461 of 2011(G) -------------------------- PETITIONER(S): --------------- K.P.AMMINI,AGED 48 YEARS, D/O.SAROJINI AMMA KANJOOR PARUTHAPPURATH KALATHIL HOUSE, PATTITHARA,OTTAPPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S): --------------- 1. PATTITHARA GRAMA PANCHAYATH,REPRESENTED BY ITS SECRETARY,PATTITHARA - 679 534, PALAKKAD DISTRICT. 2. RAVEENDRANATHAN,S/O.VELAPPA MENON, OCHATHIL THEVARKALATHIL,PATTITHARA AMSOM DESOM,PATTITHARA P.O. - 679 534, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 3. P.GOPALAKRISHNAN,S/O.RAMAN,PALLATH HOUSE -DO- -DO- 4. RAMAN EZHUTHASSAN,S/O.VELU EZHUTHASSAN MOORKKATH VALAVIL, -DO- -DO- 5. KUNJUUMUHAMMED,S/O.MOITHUTTY, CHALINPARAMBIL, -DO- 6. KUTTIKRISHNAN,S/O.GOVINDAN NAIR, OCHATHIL THEVARKALATHIL, -DO-. ADV. SRI.P.M.HABEEB FOR R1 SRI.G.SREEKUMAR (CHELUR) FOR R2-6 SRI.K.RAVI (PARIYARATH) FOR R2-6 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13461 of 2011(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF STOP MEMO DATED 17.1.2011 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P2: TRUE COPY OF REPLY DATED 19.1.2011 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P3: TRUE COPY OF NOTICE DATED 4.2.2011 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P4: TRUE COPY OF REPLY DATED 11.2.2011 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P5: TRUE COPY OF INTIMATION DATED 14.2.2011 ISSUED BY ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT (LSGD) SECTION, PATTITHARA TO THE PETITIONER. EXT.P6: TRUE COPY OF REPLY DATED 16.2.2011 WITH ENCLOSURES SUBMITTED BY THE PETITIONER BEFORE THE ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT (LSGD) SECTION, PATTITHARA. EXT.P7: TRUE COPY OF LETTER DATED 22.2.2011 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXT.P8: TRUE COPY OF REPRESENTATION DATED 7.3.2011 SUBMITTED BY THE PETITIONER BEFORE THE PRESIDENT, PATTITHARA PANCHAYATH. EXT.P9: TRUE COPY OF ORDER NO.A2/1432/2011 DATED 5.3.2011 ISSUED BY THE 1ST RESPONDENT. EXT.P10: TRUE COPY OF REPLY DATED 10.3.2011 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // TKS P.S. TO JUDGE C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.13461 of 2011 ---------------------------------------- Dated 8th June, 2011 JUDGMENT The petitioner is the owner in possession of 91.1 cents of property comprised in Survey No.139/1 of Thrithala Amsom within the jurisdiction of the first respondent Panchayat. According to the petitioner, the said property is a coconut garden. The contention of the petitioner is that, earlier, respondents 2 to 6 attempted to trespass into the petitioner's property and to reduce a portion of her property to their possession and also to commit waste in the property. That ultimately led to the institution of a civil suit. The petitioner moved the Vacation Court, Palakkad and according to the petitioner, an interim injunction was issued restraining the defendants therein viz., respondents 2 to 6 herein from trespassing into the property and making any alteration of the plaint schedule property. The petitioner was also directed not to construct the boundary wall in the meanwhile. Copy of the said order of injunction is not produced along with this writ petition. The contention of the petitioner is that respondents 2 to 6 who were restrained by the aforesaid temporary injunction from trespassing into the plaint schedule property and making any alteration in the plaint schedule property WP(C).No.13461/2011 2 influenced the first respondent Panchayat and owing to such influence certain staff of the Panchayat came to the property on 11.05.2011 and directed the petitioner to put up water streams through her property for providing drainage of water from the properties of respondents 2 to 6 to the east. The further contention of the petitioner is that no water stream as alleged by the respondents existed in her property. Though the petitioner demanded for a notice in writing, she was informed that no such notice would be issued and the Panchayat would put up water channels through her property using Panchayat fund, it is further submitted. The petitioner is apprehending action from the part of the Panchayat in furtherance of the said decision. The said allegation is the foundation for this writ petition. 2. A careful consideration of the contentions would reveal that this writ petition has been filed mainly based on an apprehension as aforesaid. The presentiment of the petitioner is that the first respondent Panchayat would not issue any notice and would put up water channels through her property using Panchayat fund after illegally encroaching upon the property. Thus, going by the contentions of the petitioner, she apprehends an attempt from the part of the respondents including the Panchayat, to illegally trespass into her property with a view to put up water channels and, that too, using the Panchayat fund. As already WP(C).No.13461/2011 3 noticed hereinbefore, the contention of the petitioner is that no water stream existed in her property and the first respondent is acting under the influence of respondents 2 to 6. There cannot be any doubt with respect to the position that the exclusionary clause under section 249(2) of the Kerala Panchayat Raj Act would not protect any ultra vires action on the part of the Panchayat. However, the onus is on the petitioner to show that there is such an illegal move from the part of the Panchayat. Going by the settled position of law an ultra vires action will not get the protection of the exclusionary clause under section 249(2) of the Kerala Panchayat Raj Act. It will be open to the petitioner to approach the competent Civil Court. Necessarily, the outcome of any such proceedings would depend upon the success or otherwise of the petitioner in establishing her right and title over the property. 3. Having considered the allegations raised in this writ petition I am of the view that it involves disputatious facts and for its redressal the petitioner has to approach the Civil Court, in accordance with law. That apart, as noticed hereinbefore, this writ petition has been filed based on an apprehension. An apprehension cannot be a cause of action for institution of a writ petition. For all these reasons, I am of the view that the petitioner has to work out her remedy in accordance with law. This WP(C).No.13461/2011 4 writ petition is not maintainable in the aforesaid circumstances and accordingly, it is dismissed. The learned counsel appearing for the petitioner submitted that the interim order passed by this Court on 13.5.2011 requiring the first respondent to maintain the status quo may be ordered to be continued so as to enable the petitioner to approach the competent Civil Court. The learned standing counsel appearing for the first respondent submitted that they will not take any action in the matter for a period of two weeks. This is recorded. Sd/- C.T.RAVIKUMAR Judge TKS