The petitioner claims to be the owner in possession of 04 Ares 05 square metres of property comprised in re-survey No.12/9 (old survey No.697/2A) in Block No.4 of Pampady village. The grievance of the petitioner is regarding the attempt on the part of the second respondent to construct an Anganvadi in the nearby property encroaching upon the property of the petitioner. A scanning of the averments in the writ petition would reveal that essentially the issue involved in this writ petition is a civil dispute. There cannot be any doubt with respect to the position that in respect of a civil dispute, the parties have to approach the competent civil court to resolve the issues. At any rate, that cannot be a subject matter for consideration under 226 of the Constitution of India. After arguing for some time, the learned counsel for the petitioner submitted that in such circumstances, the petitioner may be permitted to institute a suit. I do not think that any such permission is required. In case the second respondent panchayat is effecting any construction encroaching upon the property belonging to the petitioner, it is for the petitioner to establish the same before the competent civil court that the attempt is to encroach upon his property. The apprehension of the petitioner is that in the light of the provisions under section 249(1) of the Kerala Panchayat Raj Act (for short the 'Act') the petitioner has to issue notice to the second respondent panchayat and to wait till the expiry of the notice period before instituting the suit. In the context of the said apprehension, it is relevant refer to a decision of this Court in Mammadhan Kutty v. Pallivasal Grama Panchayat reported in 2004(1) KLT 751. It was held therein that the exclusionary clause under section 249(1) of the Act would not protect any ultra vires action and in case of any utra vires action from the panchayat or its authorities, the provisions under section 249 would not be a bar for exercise of power by a competent civil court. No doubt, it is for the petitioner to establish those facts and to contend that the bar under section 249 would not be applicable in the factual situation.
Subject to the above observation, this writ petition is dismissed.
Sd/-
C.T. RAVIKUMAR (JUDGE) spc/ C.T. RAVIKUMAR, J.
JUDGMENT September, 2010