IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WP(C).No. 2122 of 2009(C) ------------------------- PETITIONER(S): --------------- FRANCIS, AGED 78, S/O.AUGUSTY, PANDARAPARAMBIL HOUSE, PIZHALA, KADAMAKKUTTY VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY, LOCAL ADMINISTRATION OFFICER, SECRETARIAT, THIRUVANANTHAPURAM. 2. KADAMAKKUDY GRAMA PANCHAYATH, REP. BY ITS SECRETARY, PIZHALA.P.O., PIN - 682 027. ADV. SRI.K.M.VARGHESE FOR R2 GOVT. PLEADER SHRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 2122/09. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE NOTICE DTD.3.8.97 IN O.A.NO.149/07 OF LAND TRIBUNAL, TRIPUNITHURA. P2. COPY OF THE TAX RECEIPT DTD.12.3.04. P3. COPY OF THE TAX RECEIPT DTD.15.5.08. P4. COPY OF THE NOTICE DTD.11.8.08 BY R2. P5. COPY OF THE SURVEY PLAN. P6. COPY OF THE JUDGMENT IN W.P.(C).No. 25286/08 OF THIS COURT. P7. COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS DTD.3.11.08. P8. COPY OF THE NOTICE DTD.27.12.08 BY R2. P9. COPY OF THE REPLY DTD 2.1.09. P10. COPY OF THE LEGAL NOTICE DTD.5.1.09. P11. COPY OF THE POSTAL ACKNOWLEDGEMENT. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.2122 of 2009 ================== Dated this the 23rd day of January, 2009 J U D G M E N T The petitioner together with his wife and son are owners in occupation of 22 cents of land in Kadamakkudi Village. The 2nd respondent issued Ext.P4 order to the petitioner alleging that the petitioner has obstructed the flow of water through a public water channel passing through the petitioner's property and directing him to remove that obstruction. The petitioner took the stand that there is no public water channel through his property. He challenged Ext.P4 order before the Tribunal for Local Self Government Institutions and the Tribunal set aside the order directing the 2nd respondent to take fresh proceedings, if there are reasons to do so. The 2nd respondent again initiated proceedings by issuing Ext.P8 show cause notice directing the petitioner to show-cause why action should not be taken. The petitioner filed Ext.P9 reply. By way of abundant caution the petitioner also issued Ext.P10 notice as required under Section 249 of the Kerala Panchayat Raj Act with the intention to challenge the action of the Panchayat in a civil suit. That was issued on 5.1.2009. The petitioner now apprehends that the 2nd respondent-Panchayat would take coercive proceedings pursuant to Ext.P8 in a haste so as to prevent the petitioner from approaching the civil court and getting orders in 2 view of the fact that before expiry of the period stipulated under Section 249 of the Act the suit cannot be filed. It is under the above circumstances, the petitioner has approached this Court seeking the following relief: “i. To issue a writ of mandamus or any other appropriate writ order or direction, directing 2nd respondent Panchayat that they should not implement Exhibit P8 notice without giving an opportunity to the petitioner to substantiate his contentions in Exhibit P8.” 2. The 2nd respondent opposes the prayer of the petitioner. According to the 2nd respondent, the 2nd respondent has only issued a notice directing the petitioner to file his objections and those objections would be properly considered by the Panchayat before passing final orders in the matter. 3. I have heard both parties. 4. I am also opinion that the proper course of action is to direct the 2nd respondent to pass final orders on Ext.P8. But essentially the dispute between the petitioner and the Panchayat is regarding whether there is a public water channel through the petitioner's property. That can be decided only by taking evidence in a civil suit. The petitioner can move the Civil Court only after expiry of the mandatory period after issue of Ext.P10. In the above circumstances, I dispose of this writ petition with the following directions: The 2nd respondent shall consider Ext.P9 objections filed by the petitioner to Ext.P8 notice and take a decision thereon, as 3 expeditiously as possible. However, no coercive proceedings shall be taken against the petitioner even if the decision on Ext.P8 is against the petitioner, for a period of one month from today to enable the petitioner to approach the Civil Court for appropriate reliefs after the notice period prescribed under Rule 249 of the Kerala Panchayat Raj Act is over. It would be open to the 2nd respondent-Panchayat to hear other affected parties also. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge