IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).No. 4829 of 2011(C) ------------------------- PETITIONER(S): --------------- 1. G.O.DEVASSYKUTTY, AGED 60 YEARS, S/O.OUSEPH, NJALIYAN HOUSE, NEELISWARAM P.O., KALADY. 2. K.S.JOSE, AGED 50 YEARS, S/O.ESTHAPPANOS, KOLENCHERRY HOUSE, NEELISWARAM P.O., KALADY. 3.G.P.AUGUSTINE, AGED 70 YEARS, S/O.PAULO, NJALIYAN HOUSE, NEELISWARAM, KALADY. BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENT(S): ------------------------ 1. MALAYATOOR NEELISWARAM GRAMA PANCHAYATH, REP. BY ITS SECRETARY, KOTTAMAM, KALAMPATTUPURAM, PIN-683584. 2. THE SECRETARY, MALAYATOOR NEELISWARAM GRAMA PANCHAYATH, KOTTAMOM, KALAMPATTAPURAM, NEELISWARAM P.O., PIN-683584. 3. JOY IYPE, AGED 62 YEARS, S/O.IYPE, KOLENCHERY HOUSE, NEELISWARAM P.O., KALADY, PIN-683584. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Jkk C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.4829 OF 2011 -------------------------------------------- Dated this the 17th day of February, 2011 JUDGMENT The petitioners are owners in absolute possession of properties comprised in different sub-divisions under Sy.Nos.202 of Kalady village. This Writ Petition has been filed mainly seeking for issuance of a writ of mandamus commanding the respondents not to continue with the developmental activities of the play ground marked in Ext.P3 rough sketch without properly ascertaining and fixing the western boundary of the petitioners' properties and without leaving the pathway existed on further western side of the petitioners' properties. Essentially, the grievance of the petitioners is with respect to the action on the part of the respondents 1 and 2 in constructing the play ground. It is contended that the action on the part of the respondents 1 and 2 is illegal and respondents are invading into the civil rights of the petitioners. According to the petitioners, they are not in a position to challenge the aforesaid illegal activities of the respondents in a civil court before the expiry of one month after issuing a notice as contemplated under Section 249(1)(a) of the Kerala Panchayath Raj Act. W.P.(C) NO.4829/2011 2 With a view to approach the civil court to challenge the aforesaid activities of the respondents, they have issued Ext.P6 to the respondents. Ext.P6 is dated 11.2.2011. This Writ Petition has been filed mainly with a view to refrain the respondents from going on with the activities of construction of play ground till the expiry of one month as contemplated under Section 249(1)(a) of the Kerala Panchayath Raj Act so as to enable the petitioners to approach the civil court. On going through the pleadings in the Writ Petition, it appears that according to the petitioners, there is illegal encroachment upon their properties by the respondents. If the petitioners could establish that there is illegal encroachment upon their properties, I am of the considered view that the provisions under Section 249 of the Act would not be a bar against the petitioners in approaching the competent civil court. Protection under Section 249 of the Act would available only for intra vires action. I am fortified in my view by the decision of this court reported in Mammadhan Kutty v. Pallivasal Grama Panchayat (2004 (1) KLT 751) which was rendered relying on the decisions of the Hon'ble apex court reported in Dhulabhai v. State of Madhya Pradesh (AIR 1969 SC 78) and Mafatlal Industries v. Union of India ((1997) 5 SCC 536. As per the said decision, it was held that actions ultra vires would not get protection under Section 249 of the Act and therefore, any W.P.(C) NO.4829/2011 3 such ultra vires actions are assailable without waiting for the expiry of the 30 days' time since issuance of notice as contemplated under Section 249 (1)(a) of the Act. In view of the said position obtained in this case, I am of the considered view that the petitioners have to approach the competent civil court to redress their grievances. Therefore, without prejudice to the rights of the petitioners to approach the civil court having jurisdiction, this Writ Petition is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.4829/2011 4 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.4829/2011 5