Judgment :- Siri Jagan, J. The subject matter of this writ appeal is a road which the Manjalloor Grama Panchayat claims is a public road and the appellants claim the same to be part of their private properties. The appellants claim that appellants 1 and 2 are the owners of the land in different sub divisions in Survey No.552 of Manjalloor Grama Panchayat in Ernakulam District which they claimed to have obtained by sale deed in 1995. The lands were originally paddy fields which were later converted into dry lands. The local residents were using a pathway of about 6 ft. wide on the eastern side of the properties. The appellants claim was that part of their properties were surrendered by appellants 1 and 2 to widen the said pathway on the request of the public. While so, some of the members of the public wanted the existing pathway to be straightened through the middle portion of the land belonging to appellants 1 and 2. Considering the public interest involved, appellants 1 and 2 agreed to surrender some of their properties on the belief that they can take back their lands which they had admittedly permitted to put to use as a pathway. According to the appellants, the said pathway had never vested in the Panchayat in accordance with law nor has any intimation been sent to the appellants 1 and 2 to that effect. Though the public were using the road, the land remained in the same survey number in the title and ownership of the appellants 1 and 2, contend the appellants. The appellants would further contend that no vesting has taken place in respect of that pathway in the Panchayat, in the absence of any notification in terms of Section 169 of the Kerala Panchayat Raj Act. At that time, one N.J. George and joshi Sebastian attempted to trespass into the properties of the appellants 1 and 2 in respect of which a suit was filed before the Munsiff’s Court, Muvattupusha as O.S. No.192/2005, which is pending and in which an order of injunction has been passed restraining the said two persons from trespassing upon the property of appellants 1 and 2 and destroying the cultivation therein. The said N.J. George is the 4th respondent in this writ appeal. 2. The said N.J. George is the 4th respondent in this writ appeal. 2. While so, the Secretary of the 3rd respondent-Grama Panchayat issued a letter to the appellants directing restoration of the old pathway which the appellants 1 and 2 had encroached into. The appellants filed appeal before the Panchayat Committee in which the Panchayat passed Ext.P1 resolution resolving to release to appellants 1 and 2 the property covered by the old pathway as and when they surrender property for the new pathway. That resolution of the Panchayat was challenged before this Court in W.P.(C) No.15907/2005 by the 5th respondent and another in which appellants 1 and 2 were respondents. In that writ petition, by Ext.P2 judgment, this Court directed the Deputy Director of Panchayats to decide the issue involved after hearing the parties, which has become final since nobody took up the same in appeal. Pursuant to the said judgment, the Panchayat Deputy Director, Ernakulam passed Ext.P3 order wherein the Deputy Director held that the old pathway was a public road which had already vested in the Panchayat under Section 169 of the Kerala Panchayat Raj Act and appellants 1 and 2, who are the owners of adjacent properties have encroached into the said public road. Since in order to transfer properties vested in the Panchayat, Gazette notification under Section 169(4) is necessary, the encroachment by appellants 1 and 2 is unauthorized and illegal. Accordingly, the Deputy Director directed appellants 1 and 2 to restore the pathway, which was encroached into by them, within three months. There was a further direction that for the present, all expenses for restoring the said public road shall be met from the Panchayat fund and such expenses together within the penalty under the Kerala Panchayat Raj) Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorized Occupation) Rules, 1996 should be realized from appellants 1 and 2. Ext.P3 was under challenge in the writ petition. 3. The 3rd respondent-Panchayat had filed a counter affidavit in the writ petition. According to them, the road in question is Madakkathanam – Arakkathazham Pannippilly road, which is maintained by the Panchayat and used by the public. Ext.P3 was under challenge in the writ petition. 3. The 3rd respondent-Panchayat had filed a counter affidavit in the writ petition. According to them, the road in question is Madakkathanam – Arakkathazham Pannippilly road, which is maintained by the Panchayat and used by the public. This road is the eastern boundary of the property of appellants 1 and 2 which they purchased as per sale deed No.806/1995 of Kallurkad S.R.O. In the said sale deed, in the description of the properties, eastern boundary of the property is shown as ‘road’. They would submit that appellants 1 and 2 have trespassed into the said road used by the public maintained by the Panchayat, pursuant to which the local people filed a complaint before the Panchayat. On enquiry conducted by the Panchayat, the Panchayat came to the conclusion that appellants 1 and 2 have annexed the road, encroaching into the same and cultivated the same with rubber saplings. Therefore, Ext.R3(a) notice dated 9-5-2005 was issued to appellants 1 and 2 to remove the encroachment and restore the road to its original position. Further the Deputy Director of Panchayats, on enquiry through audit supervisor, found that appellants 1 and 2 had, in fact, committed trespass and destruction of the Panchayat road. Water supply to Ward Nos.5, 6, 7 and 8 of Manjalloor Grama Panchayat was being effected through the pipeline drawn through this road for a length of 120 meters and immediately after the trespass, the Assistant Executive Engineer of the Kerala Water Authority, by Ext.R3(b) letter dated 25-5-2005, intimated the 3rd respondent-Panchayat about the trespass. It is while matters were thus remaining that W.P.(c)No. 15907/2005 was filed for implementing Ext.R3(a) notice and for other relief’s. All these matters were placed on record in the said writ petition by Ext.R3(c) counter affidavit filed in that writ petition. It is thereafter that this Court passed Ext.P2 judgment directing the Deputy Director of Panchayat to decide the issue, which resulted in Ext.P3 order. Pursuant to Ext.P3 order, the Panchayat unanimously took a decision to restore the Panchayat road to its original position in its committee meeting held on 31-1-2006. The 3rd appellant, who is a member of the same Panchayat, also participated in the Panchayat Committee meeting held on 31-1-2006. Pursuant to Ext.P3 order, the Panchayat unanimously took a decision to restore the Panchayat road to its original position in its committee meeting held on 31-1-2006. The 3rd appellant, who is a member of the same Panchayat, also participated in the Panchayat Committee meeting held on 31-1-2006. In spite of the unanimous decision, he has joined hands with the 1st and 2nd appellants in filing the writ petition and this writ appeal against the Panchayat in which he is a member despite having been a party to Ext.R3(e) decision. The unanimous decision of the Panchayat Committee is also produced as Ext.R3(d) and the attendance register of the members who participated in the meeting is produced as Ext.R3(e) in which the 3rd appellant has also signed. The extract from the road register of the Panchayat is Ext.R3(f) in which item 66 is the road which is the subject matter of this writ appeal. Ext.R3(g) is the sale deed no. 806/5 by which appellants 1 and 2 purchased their properties in which the eastern boundary is mentioned as ‘road’. On these allegations, the Panchayat strongly contested the writ petition. The 5th respondent also filed a counter affidavit supporting the Panchayat. 4. In answer to this, in their reply affidavit, the appellants have produced Ext.P5 affidavit stated to be signed by some of the members of the very same Manjalloor Grama Panchayat stating that the pathway has never vested in the Panchayat. On a consideration of these pleadings, the learned Single Judge held that Ext.P2 judgment has become final between the parties and therefore the Deputy Director could have decided the issue on the basis of the directions contained in Ext.P2 judgment. The learned Single Judge further held that temporary injunction obtained by the appellants against private individuals cannot affect the validity of the proceedings initiated by the Panchayat under the statutory provisions to evict the encroachers under the Panchayat Raj Act. The contention of the appellants that in the absence of any notification under Section 169(4) vesting the land forming the public road in the Panchayat, no vesting can be claimed by the Panchayat was also repelled by the learned Single Judge. The contention of the appellants that in the absence of any notification under Section 169(4) vesting the land forming the public road in the Panchayat, no vesting can be claimed by the Panchayat was also repelled by the learned Single Judge. The learned Single Judge further held that going by the definition of “public road” in Section 2 (xxxv) of the Panchayat Raj Act and the manner in which the term is referred to in Section 169, the vesting does not necessarily mean ownership in title and such vesting is not dependent upon any notification of the Government under sub-section (4) of Section 169. It was further held that transfer and vesting provided in sub-section (4) of Section 169 relate only to such vesting referable to those roads over which rights and responsibilities vest with the Government. While holding so, the learned Single Judge also relied on the decisions in Executive Officer, Kavilampara Panchayat v. Ammad, (1969 KLT 90 and The Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust, AIR 1957 SC 344. This judgment of the learned Single Judge is under challenge in this writ appeal. 5. In the writ appeal also, the appellants proceed on the basis that although the same is a public road, the same cannot become vested in the Panchayat without following the requisite procedure under Section 169. They would contend that the learned Single Judge erred in law in holding that the vesting contemplated in sub-section (1) of Section 169 of the Kerala Panchayat Raj Act is different from sub-section (4) of the same Section and contended unless and until Government issues a notification under sub-section (4), there cannot be any vesting of the road in the Panchayat. 6. We have heard counsel on both sides. 7. Before discussing the contentions of the parties, we may briefly refer to the provisions in the Kerala Panchayat Raj Act, which are applicable to the present case. 6. We have heard counsel on both sides. 7. Before discussing the contentions of the parties, we may briefly refer to the provisions in the Kerala Panchayat Raj Act, which are applicable to the present case. The definition of ‘Public road’ as obtaining in Section 2 (xxxv) reads thus: “(xxxv) ‘public road’ means any street, road square, Court, alley, passage, cart-tract, footpath or riding path, over which the public have right of way, whether a thoroughfare or not, and includes,- (a) the roadway over any public bridge or causeway; (b) the foot-way attached to any such road, public bridge or causeway; and (c) the drains attached to any such road, public bridge or causeway, and the land whether covered or not by any pavement, verandah or other structure which lies on either side of the roadway upto the boundaries of the adjacent property whether the property is private property or property belonging to the State or Central Government”. Section 169 of the Panchayat Raj Act reads thus: “169. Vesting of Public roads in Village Panchayat: - (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958), or in any other law for the time being in force, all public roads other than those classified by the Government as National Highway, State Highway or major district roads, bridges, culverts, ditches, dykes, fences on or beside the same protective devices and all adjacement land not being private property appurtaining threto, within the Panchayat are ie.- (a) in the District Panchayats – All district roads other than major district road within the area of more than one Block Panchayat; (b) in the Block Panchayats-District Roads and village roads other than major district roads within the area of more than one Village Panchayat comprised in a Block Panchayat; (c) in the Village Panchayats-other village roads, paths and lanes within the Village Panchayat area. Together with all pavements, stones and other materials and other things installed therein, all drains culverts made along side or under such roads and all works materials and things appertaining thereto may be deemed as transferred to and vested absolutely in the Panchayat area. Together with all pavements, stones and other materials and other things installed therein, all drains culverts made along side or under such roads and all works materials and things appertaining thereto may be deemed as transferred to and vested absolutely in the Panchayat area. (2) Subject to the provisions of this Act, all rights and liabilities of the Government in relation to the public roads and other properties, materials and things vested in the Panchayat under sub-section (1) or sub-section (4) shall, from the date of such vesting, be the rights and liabilities of the panchayat. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the Government may at any time, by notification in the gazette, exclude from the operation of this Act any such public road, sewer, drain drainage work, tunnel or culvert and may also modify or cancel such notification, and thereupon they shall revest in Government: Provided that, before issuing such a notification, the Government shall consult the Village Panchayat concerned and give due regard to the objections, if any. (4) The Government may, by notification in the Gazette, order the transfer to and vesting in, a village Panchayat, of any public road or class of public roads in the Village Panchayat and thereupon such road or roads shall, notwithstanding anything contained in sub-section (1), but thereupon such road or roads shall, notwithstanding anything contained in sub-section (1), but subject to the other provisions of this Act, stand transferred to and vest in, such Village Panchayat. 5. It shall not be lawful for any persons to occupy any land which is transferred to and vested in a Panchayat under sub-section (1) or sub-section (4), whether a poramboke or not, without prior permission from the Panchayat concerned. Explanation: - For the removal of doubts, it is herby declared that the erection of any wall, fence or building or the putting up of any overhanging structure or projection (whether on a temporary or permanent basis) on or over any land aforesaid shall be deemed to be occupation of such land”. Further, Section 170 which relates to the duties of the Panchayat to maintain the roads vested in it, reads thus: “170. Panchayats to maintain the roads properly: - (1) It shall be the duty of the Panchayat to maintain properly the roads vested in it and to prevent encroachment on it. 2. Further, Section 170 which relates to the duties of the Panchayat to maintain the roads vested in it, reads thus: “170. Panchayats to maintain the roads properly: - (1) It shall be the duty of the Panchayat to maintain properly the roads vested in it and to prevent encroachment on it. 2. The Village Panchayat shall keep all public roads and important public paths in its area free from garbage, sewage and other waste materials and shall protect such roads and public paths from encroachment. (3) The Village Panchayat may, in such manner as it may deem fit, dispose of all garbage, sewerage and other waste materials collected by it while cleaning public roads, public paths and drains”. (Emphasis supplied) 8. In the writ petition itself, the appellants categorically admit that local residents were using a pathway of about 6 ft. wide on the eastern side of the properties of appellants 1 and 2. Therefore, going by the definition of public road extracted above, it is clear that the road in question is a public road because as admitted by the appellants themselves, the public have right of way over the same. When, admittedly, the road is a public road, then we are of opinion that sub-section (1) of Section 169 as quoted above would clearly be attracted since all public roads other than those excepted in that section within the Panchayat area are deemed to be transferred to and vested absolutely in the Panchayat. The appellants do not have a case that this public road is one which comes within the categories excepted in sub-section (1). We are of further opinion that as rightly held by the learned Single Judge, transfer and vesting contemplated in sub-section (4) of Section 169 relate only to those roads in respect of which the rights and responsibilities vest with the Government. Therefore, in the case of public roads, which have already vested in the Panchayat under Section 169(1), there need not be any separate notification by the Government as contemplated in sub-section (4). We are also of opinion that the reliance by the learned Single Judge on the decisions of Kavilampara Panchayat’s case and Fruit & Vegetable Merchants Union’s case is quite apposite in the facts of the case. We are also of opinion that the reliance by the learned Single Judge on the decisions of Kavilampara Panchayat’s case and Fruit & Vegetable Merchants Union’s case is quite apposite in the facts of the case. In the kerala decision while interpreting the corresponding provision in the erstwhile Kerala Panchayat Act, this court held that the vesting contemplated under the Act need not be a vesting of ownership itself and property owner by other persons also may vest in the Panchayat by virtue of that Section, although the vesting may be even in a limited sense as indicated by the context in which it may have been used in a particular piece of legislation. In this case, in Ext.P3 order, the Deputy Director found as a matter of evidence on record that the road in question was included in the road register of the 3rd respondent-Panchayat as item 66 named as Madakkathanam-Arakkathazham Pinnippilly road having 3.5 meters width and 750 meters length. The evidence also pointed to the fact that during the year 2004-2005, acrose the said road, the Panchayat had constructed a culvert spending an amount of Rs. 1,04,525/-. There is a further finding that it is through the said road that the pies for water supply in the Panchayat from the tube well pump house lie. Further in Ext.R3(a) sale deed by which appellants 1 and 2 purchased the property, the eastern boundary is shown as ‘road’. When appellants 1 and 2 have no case that there is any other road on the eastern boundary of the appellants’ property other than the road in question, it defies logic as to how the appellants 1 and 2 who claimed title on the basis of Ext.R3(g) can contend that the road belongs to them. Moreover, they themselves admitted in the writ petition that the “local residents were using a pathway about 6 wide on the eastern side of the properties”. Moreover, they themselves admitted in the writ petition that the “local residents were using a pathway about 6 wide on the eastern side of the properties”. Therefore, there is overwhelming evidence in this case to show that the road in question in fact, is vested in the Panchayat by virtue of Section 169(1) and therefore under Section 170 of the Kerala Panchayat Raj Act as also under the provisions of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for unauthorized Occupation) Rules, 1996, the Panchayat has the power and in fact a duty to take steps to restore the same for public use by protecting the same from encroachment by appellants 1 and 2. As noted by the learned Single Judge, Section 272 also provides that all roads vested in or maintained by a Panchayat shall be open to the use and enjoyment of all persons irrespective of their caste and creed or any other considerations. The appellants cannot on a contrived interpretation of Section 169(4) contend that unless and until the Government issues a notification ordering transfer and vesting of the public road in the panchayat, the Panchayat cannot claim that the road has vested in it. We have absolutely no doubt in our mind that the interpretation sought to be canvassed by the appellant on sub-section (4) would not stand scrutiny and the correct interpretation would be that the said sub-section applies only to public roads other than those mentioned in sub-section (1) namely, other roads which belong to the Government and has not already vested under Section 169(1). If the interpretation canvassed by the appellant is accepted, then sub-section (1) of Section 169 would become meaningless, and for vesting of every minor road also, the Panchayat would require a notification by the Government, which is not the intention behind Section 169. Section 169(1) is a provision by which the legislature wanted to automatically vest in the Panchayat all public roads in the Panchayat other than those excepted in sub-section (1) and sub-section (4) only relates to vesting of other roads which are not covered by sub-section (1). 9. In any event, as held above, the appellants cannot now claim any right to encroach into the public road since they themselves have categorically admitted that this road was being used by the local people as a public road. 9. In any event, as held above, the appellants cannot now claim any right to encroach into the public road since they themselves have categorically admitted that this road was being used by the local people as a public road. In the above circumstances, there is no merit in the challenge against the impugned judgment of the learned Single Judge. Accordingly, the writ appeal is dismissed. Before parting with the case, we must note a distressing aspect of this case. Ext.R3(d) resolution was passed by the 12 members who participated in the meeting unanimously to take appropriate steps to restore the road in question. In spite of that unanimous decision, some of the very same members have chosen to file an affidavit in support of the appellants. One of them even went to the extent of joining hands with appellants 1 and 2 in prosecuting the writ petition and the writ appeal against the Panchayat. After having taken a unanimous decision in the Panchayat meeting, the representatives of the people cannot act in such a flagrant violation of their own decisions to help private individual to the detriment of the Panchayat and the people of the Panchayat. In this connection, we note with approval the following paragraph in a decision rendered by one of us (Siri Jagan, J) in the decision of George C. Kappen v. State of Kerala, reported in 2006 (3) KLT 801: “5. On due consideration of the contentions of counsel, I am of the opinion that the contention of the petitioner is well founded. When Municipality takes a decision irrespective of whether one or two members make a dissenting note, it does not become any the less a decision of municipality. The dissenting members being part of the Municipality itself, they cannot challenge the decision of the Municipality because that decision after the same taken becomes their decision also as part of the Council. It does not require any authority to hold that the Municipal council cannot challenge its own decision before any appellate or revisional forum. If such a procedure is given the stamp of legality, that would give rise to very anomalous situation in so far as a sole dissenting member of the Municipality would become entitled to challenge decisions of Municipality before higher forums, which is not permitted under law. If such a procedure is given the stamp of legality, that would give rise to very anomalous situation in so far as a sole dissenting member of the Municipality would become entitled to challenge decisions of Municipality before higher forums, which is not permitted under law. The fact that the Government had, in fact, powers to suo motu revise the orders of the /Municipal council does not change the situation in so far as the Government has not chosen to exercise their suo motu powers in this case. Ext.P10 decision has been passed in the petition filed by one of the dissenting members of the Municipality. The contention of the learned Government Pleader that Ext.P10 order has been passed pursuant to the directions of this Court in Ext.P8 judgment also would not hold good. In Ext.P8 judgment, I do not find any decision to the effect that the petition filed by the dissenting member is maintainable before the Government. The Government has only been directed to dispose of the petition after considering the objections filed by the petitioner. I do not find any decision of any aspect of the case in Ext.P8 decision”. In fact, we are constrained to say that the action of the members of the Panchayat would amount to violation of the oath these Panchayat members have taken and they have breached the trust reposed by the people of the Panchayat in them by electing them as their representatives in the Panchayat committee. Therefore, we take this opportunity to express our strong displeasure in the action of the 3rd appellant as also the other members of the Panchayat who have even without expressing any dissent in the Panchayat committee meeting, chosen to join hands with appellants 1 and 2 to try to deprive the people of the Panchayat the use of the public road over which the people had a right of way and over which appellants 1 and 2 did not have any right at all. Although we would have liked to go further to suggest action against these members, we exercise restraint and leave it to the Panchayat and other authorities vested with such powers whom we expect to act prudently keeping in mind the interests of the people who have elected these representatives.