UMMER Vs. THE SECRETARY,

JUDGEMENT

(1.) THE petitioner, a permanent resident of Marancherry Panchayat within Malappuram District has filed this Writ Petition seeking: (1) a writ of mandamus commanding the 1st respondent -Secretary of the Panchayat to stop all further works in connection with the construction of a road in the land of the petitioner; (2) a declaration that the Panchayat is duty bound to ask permission of the person, if the Panchayat wants to construct a new road within the limits of the Panchayat area; and (3) a writ of mandamus directing the 1st respondent to pay compensation to the petitioner for the illegal act committed on the land of the petitioner. The petitioner claims title and possession over certain lands in Sy. No. 14/3 of Kanjiramukku Village by means of Exts.P1(a) and P1(b) registered documents of sale. He states that in between his land and the adjacent property belonging to his neighbour, there was a nadavaramba. Certain localites had a plan to convert the nadavaramba as a pucca road and they approached the petitioner and he would tell them that he is ready and willing to provide one -half of the land required for the proposed road, provided his neighbour is also willing to provide the other half. The neighbour however was not willing. The petitioner states that during the last week of February, 2006 he went over to Saudi Arabia for a pilgrimage. But on coming back he was shocked to find that certain persons were constructing road upon his property. There was no consent, either express or implied, from his side in the matter of road construction and noticing the road construction, he issued Ext.P2 lawyer notice through his advocate which was acknowledged by the Panchayat vide Ext.P2(a) postal receipt and Ext.P2(b) acknowledgment card. The petitioner submits that even though the work was stopped for some time, thereafter the work was started again taking up the contention that the Panchayat is not duty bound to ask permission of any person once they decide to construct a road for the benefit of the public. On the above facts, the petitioner has raised grounds A to F and filed the Writ Petition for the reliefs already indicated.

(2.) THE 1st respondent has filed a detailed counter affidavit in which it is contended that the road in question was constructed prior to 1985 and was known as the Thottumugham temple -Pulikkakadavu road. The temple, it is pointed out, is situated on the eastern side of the road. The road deviates from Purangu -Pulikkakadavu road. The length of the above portion will be 450 to 500 metres. The road eversince its formation in 1985 is being maintained by the Panchayat and in this regard Ext.R1(a) copy of the road register maintained by the Panchayat is relied on in the counter affidavit. The road mentioned in Ext.R1(a), it is pointed out, was constructed by the local people based on the voluntary surrender of land by owners on either sides who are the beneficiaries of the formation of the road. To begin with, the width of the road was 3 metres and thereafter the road was handed over to the Panchayat and is presently being maintained by the Panchayat. Phase by phase the metalling work of the road was completed by the Panchayat. After the handing over of the road, the width of the road was increased from 3 metres to 5 metres at different points, since the adjacent land -owners had voluntarily left out sufficient area for increasing the width. To the immediate north of the road, near to the Thottumugham temple, the temple authorities had left sufficient space for increasing the width. The petitioner's paddy field is situated near to that area. The protection work on the side of the petitioner's paddy field is already completed. It is then pointed out that the petitioner resides not near to the area but at Pulikkakadavu. The road formation and road widening is a project which has been taken up under the SGRY Scheme financed by the Central Government. This is a special component programme specially provided for Scheduled Castes. It is the welfare of the Thottumugham Harijan Colony in the locality which was the prime consideration. A sum of Rs. 50,000/ - is allotted for the work and unless the fund is utilised before 31.3.2007, the same will be lapsed. The averments in para.5 of the Writ Petition are described as false. It is contended that to Ext.P2 lawyer notice, a reply about the correct factual position was given. The counter affidavit relies on Ext.R1(b) project report also. This project report relates to the improvement work of the Thottumugham Colony road which is seen included as a project work of the Panchayat during the year 2002. The improvement work of the road is almost completed and the petitioner was watching by as the work was progressing. Objection was raised by him for the first time through Ext.P2 which was issued in February, 2006. It is also pointed out that the petitioner is a person who had given his consent at the time of initial formation of the road in 1985 along with neighbouring property owners and therefore is estopped from objecting to the improvement works which are presently taken up.

(3.) I have heard the submissions of Sri. Manuvilsan, counsel for the petitioner and those of Sri. T. Sethumadhavan, counsel for the 1st respondent -Panchayat.