The first petitioner is the owner in possession of 25 cents of property comprised in Survey Nos.234/3.6.1 and 234/3.6.2 of Pavumba Village. A careful consideration of the pleadings of the petitioners would reveal that essentially, the grievance is against an encroachment into the property with a view to cut and remove the rubber trees in the property from the part of the 3rd respondent Panchayat and its officers. It is in the said circumstances that the captioned writ petition has been filed with the following reliefs:
“(i) To call for the entire records pertaining to the Adalath held on 20.5.2014 in the office of the 3rd respondent on the basis of the complaint filed by the respondents 4 and 5 and the action, if any, taken by the 3rd respondent with regard to the forcibly cutting and removal of the rubber trees of the petitioners from his own properties without issuing any order;
(ii) To issue a writ of mandamus or any other appropriate writ or order declaring that the action of 3rd respondent directing the petitioners to cut and remove the rubber Trees on the basis of the complaint filed by the respondents 4 and 5 is highly illegal, arbitrary, malafide in nature, discriminatory in character ab initio void, unjust, unfair, unreasonable and unsustainable;
(iii) To issue a writ of mandamus or any other appropriate writ, order or direction declaring that the action of the 3rd respondent for taking arbitrary decision to cut and remove the 5 rubber trees of the petitioners from his property without issuing any notice or giving any chance to file any explanation on the basis of the false and frivolous complaint filed by the 4th and 5th respondent, is highly illegal, arbitrary, malafide in nature, discriminatory in character, ab initio void, unjust, unfair, unreasonable and unsustainable;
(iv) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 3, 4 and 5 not to take any action to cut and remove the 5 rubber trees standing in the western side of the property of the petitioners;”
2. As noticed hereinbefore, the grievance of the petitioner is that the respondents are attempting to cut and remove the trees standing in the property of the petitioners without any authority of law. When the case of the petitioners is that those trees are standing in their property and without any authority of law respondents 4 and 5 are attempting to cut and remove the same essentially, the allegation is one of encroachment into the property with a view to cut and remove the trees without any authority of law and if the contentions of the petitioners are true to facts definitely they will constitute an ultra vires action. The learned counsel for the petitioners submitted that the petitioners were constrained to approach this Court as they are under the bonafide belief that for instituting a suit they are bound to issue a notice under Section 249(1) of the Kerala Panchayat Raj Act, 1994. It is submitted that in case they are to issue such notice they will have to wait till the expiry of the statutory period in which event the prejudicial activity would be completed in the meanwhile. I am of the view that in the light of the decision of this Court in Mammadhan Kutty v. Pallivasal Grama Panchayat (2004 (1) KLT 751) there is no reason for such an apprehension as in unambiguous terms this Court held that when the action on the part of the Panchayat or its officers are ultra vires the exclusionary power under Section 249(1) of the Kerala Panchayat Raj Act, 1994 would not protect them and in such event Section 249(1) of the Kerala Panchayat Raj Act, 1994 would not be a bar to the Civil Court to entertain a suit against such an ultra vires action. Thus, it is obvious that it is for the petitioners to establish the fact that the trees are standing in their property and the respondents are attempting to cut and remove those trees which are standing in their property without any authority. In other words, the petitioners have to establish that the alleged action is ultra vires. In case the petitioners can successfully establish an ultra vires action on the part of the respondents Section 249(1) of the Act would not stand as a bar to constitute a suit in the light of the decision in Mammadhan Kutty's case (supra). With this observation, this writ petition is disposed of.
Sd/-
C.T.RAVIKUMAR Judge TKS