The petitioner who is the owner in possession of 68.5 Ares of land comprised in Survey Nos.376/3-4, 376/2-4, 374/4, 375/2-1 of Karumaloor Village filed this writ petition seeking issuance of a writ of mandamus commanding the respondents not to trespass into and not to acquire his property save by authority of law. The allegation of the petitioner is that the respondents are attempting to cut a road through her property and for that purpose they loaded granite stones and also installed a mixing mixture machine without the consent of the petitioner. In short, it is evident that the grievance of the petitioner is that the respondents are encroaching upon his property. In case the contentions of the petitioner are true to facts they would amount to ultra vires action in respect of such encroachment into his property. There cannot be any doubt with respect to the position that in such eventuality the remedy of the petitioner lies before a competent Civil Court. However, the learned counsel appearing for the petitioner submitted that if the petitioner has to institute a suit in view of the provisions under Section 249(1) of the Kerala W.P.(C) No.14654 of 2014 2 Panchayat Raj Act, 1994 he is bound to serve notice on the respondent Panchayat and also to wait till the expiry of the statutorily stipulated period and by the time the respondents may carry out the construction. I am of the view that the said apprehension of the petitioner is unfounded. In view of the decision of this Court in Mammadhan Kutty v. Pallivasal Grama Panchayat (2004 (1) KLT 751) if the respondents are attempting to construct a road through the property belonging to the petitioner and in that matter committing encroachment upon his property certainly without resorting to the prescribed procedures under law, for acquiring the same it would be an ultra vires action. Any such ultra vires action is not protected under the exclusionary provision under Section 249(1) of the Kerala Panchayat Raj Act, 1994 in view of the decision in Mammadhan Kutty's case (supra). It is further held therein that in such eventuality, the bar under Section 249(1) would not affect the power of the Civil court to entertain a suit if the concerned aggrieved party files a suit. Thus, it is obvious that it is for the petitioner to establish that the respondents are committing or attempting to commit such an ultra vires action, rather, encroachment upon his property. In case the petitioner could establish the fact that the respondents are attempting to commit W.P.(C) No.14654 of 2014 3 or committed an ultra vires action certainly, the bar under Section 249(1) of the Kerala Panchayat Raj Act, 1994 would not affect the power of the Civil Court. In short, it is up to the petitioner to establish the said fact and move the competent Civil Court appropriately. With the above observation, this writ petition is disposed of. Sd/-
C.T.RAVIKUMAR,JUDGE.
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