Point of Law: Secretary of the Panchayat is a statutory authority vested with powers under the Kerala Panchayat Raj Act, 1992 and the rules made thereto and the Secretary has to discharge the functions only in accordance with the powers enjoyed by the Secretary in accordance with law.

JUDGMENT :

This writ petition is filed by the petitioner seeking the following relief:

“(i) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent not to proceed with the formation and widening of the road Mukkilpeedika-Nellikkaparambu through the western side of the property comprised in R.S.No.271/1 & 3 of Kannamangalam Village without obtaining written relinquishment letter from the petitioner.”

2. The case projected by the petitioner is that, petitioner is the owner of an extent of 31 cents of land in Re Survey No.271/1 and 3 of Kannamangalam Village, Malappuram District, secured by the petitioner as per Exhibit P1 partition deed. The grievance of the petitioner is that the western boundary of the property was an idavazhi (small bye-lane) as can be seen from Exhibit P1. It was subsequently made as a Panchayat road. The Panchayat wanted to widen the road after securing surrender of the properties from the owners on either side of the idavazhi. The case of the petitioner is that the petitioner or his relatives did not submit any relinquishment letter or surrender letter. However, the Panchayat, with the assistance of the Police, was attempting to encroach into the property and carry out widening of the idavazhi. It is thus seeking the relief extracted above, the writ petition is filed.

3. The Secretary of the Grama Panchayat has filed a counter affidavit basically contending that in order to widen the idavazhi, the Panchayat has issued a public notice inviting objections from the owners of the properties on either side of the idavazhi. Except the petitioner all others surrendered their properties and since the petitioner has not filed any objection as is sought for in the public notice, the Panchayat has a right to take possession of the property from the petitioner and widen the road in question.

4. I have heard the learned counsel for the petitioner Sri. T. Sethumadhavan; the learned standing counsel Sri. K. Ramachandran for the respondent Grama Panchayat, the learned Government Pleader Sri. Jacob E. Simon for the 2nd respondent and perused the pleadings and the materials on record.

5. The issue with respect to the acquisition of property by the Panchayat is guided by Section 178 of the Kerala Panchayat Raj Act, 1994 which reads thus:

“178. Acquisition of immovable property required by the panchayat. -Any immovable property which is required by a panchayat for a public purpose connected with the discharge of the functions imposed on it under this Act or the rules or bye-laws made thereunder, or any other law, may be acquired under the provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894) and on payment of compensation awarded under that Act in respect of such property and of any other charges incurred in acquiring it, the said property shall stand transferred to and vest in the Panchayat:

Provided that nothing contained in this section shall be deemed to prevent any panchayat from acquiring immovable property either through private purchase or any free surrender.”

6. In order to implement the said provision, the State Government has introduced the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005. Rule 3 thereto deals with power to acquire property and sub-rule (1) specifies that the Panchayat may acquire any land or building within or outside its area either by purchase or otherwise in order to introduce any public facility or for providing any service, and may with the prior approval of the Government dispose of any of its property either by sale or otherwise. Sub-rule (2) clearly stipulates that the acquisition of land under sub-rule (1) may either be in accordance with the Land Acquisition Act for the time being in force and the rules made thereunder or through private purchase or free surrender.

7. A clear procedure is prescribed as per rule 4 of Rules 2005 as to the manner in which the land is to be acquired. Rule 5 deals with the acquisi