The petitioner, the owner in possession of an item of property admeasuring 1 acre 19 cents in Muzhappilangad Village of Kannur District had applied for the grant of permission to construct a compound wall demarcating the boundaries of her property. The application has been rejected by Ext.P9. The reason stated in Ext.P9 is that, the property abuts a public road which is proposed to be improved by the Panchayat, using the fund of the local M.L.A. According to the counsel for the petitioner Sri.K.C.Sathosh Kumar, the said reason cannot be a ground for rejection of the application of the petitioner. The other reason stated is that, a suit O.S.No.331 of 2013 is pending before the Munsiff's Court, Thalassery between the parties. My attention is drawn to Exts.P6 and P7 judgment and decree by which the suit has been finally disposed of in favour of the petitioner. Therefore, it is contended that Ext.P9 is liable to be set aside. W.P.(C).No.16107 of 2014 2
2. Adv.Kodoth Pushparajan appears for respondents 2 and 3.
According to the counsel, Ext.P9 is an order against which a statutory remedy by way of an appeal is provided by the Kerala Panchayat Raj Act, 1994. The petitioner, not having exhausted the said remedy, is not entitled to any relief from this Court, it is contended.
3. It is also stated in the statement filed on behalf of the Panchayat that, they are proposing to initiate action for setting aside the ex-parte judgment and decree passed against them.
4. Heard. It has been laid down by the Honourable Supreme Court in Raju S.Jethmalani and others v. State of
Maharashtra and others [(2005) 11 SCC 222], that though it is permissible for lands to be included in development projects by the local authority, unless the same is followed up with prompt proceedings for acquisition of land in implementation thereof, no restriction could be placed on use of such land by the land owner. If the Panchayat is proposing to develop the land using the fund of the local MLA, the Panchayat would be at liberty to do so. if any portion of the petitioner's property is required, the same
W.P.(C).No.16107 of 2014 3 would have to be acquired by invoking the provisions of the Land Acquisition Act. Until such proceedings are initiated, the petitioner cannot be restrained from utilising the land in the manner deemed fit by her. As at present, O.S.No.331 of 2013 is also decreed in favour of the petitioner. Therefore both the grounds mentioned in Et.P9 are unsustainable.
For the above reasons, this writ petition is allowed. Ext.P9 is set aside. The third respondent is directed to consider the application submitted by the petitioner afresh, and to pass appropriate orders thereon in accordance with law, as expeditiously as possible and at any rate, within a period of one month of the date of receipt of a copy of this judgment.
Sd/-
K.SURENDRA MOHAN, JUDGE.
rkc.