Josekutty Alex v. Muhamma Grama Panchayath & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934** ## **WP(C).No. 15059 of 2012 (F)** **---------------------------------------** ## **PETITIONER:** ## **-------------------** **JOSEKUTTY ALEX, CHALANGADI HOUSE, MUHAMMA P.O., CHERTHALA, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ABRAHAM ALEXANDER, CHALANGADI, PALLIMETTU, ANIYARTHODU P.O., KATTAPPANA.** ## **BY ADV. SRI.J.OM PRAKASH.** ## **RESPONDENTS:** ## **-----------------------** **1. THE MUHAMMA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MUHAMMA P.O., CHERTHALA, PIN- 688 525.** **2. THE SECRETARY, MUHAMMA GRAMA PANCHAYATH, MUHAMMA P.O., CHERTHALA, PIN- 688 525.** **3. K.S.RAJESH, S/O.SOMAN, CHANIVERLI, MUHAMMA P.O, CHERTHALA, PIN- 688 525.** **4. P.N.PURUSHOTHAMAN, S/O.NARAYANAN, CHEEREVELI, MUHAMMA P.O, CHERTHALA, PIN- 688 525.** ## **R3 & R4 BY ADV. SRI.K.V.SOHAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C). NO.15059/2012-F:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT-P1. TRUE COPY OF THE ORDER DATED 28.11.2011 OF THE ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, ROADS SUB DIVISION, CHERTHALA.** - **EXHIBIT-P2. TRUE COPY OF THE BUILDING PERMIT DATED 8.3.2012.** - **EXHIBIT-P3. TRUE COPY OF THE RESOLUTION OF THE FIRST RESPONDENT DATED 13.3.2012.** **EXHIBIT-P4. TRUE COPY OF THE COPY OF THE LETTER OF THE 2ND RESPONDENT DATED 14.3.2012.** ## **RESPONDENTS EXHIBITS:** **EXT.R4.A: COPY OF THE REPRESENTATION SUBMITTED BY 62 PERSONS OF THE LOCALITY, DT. 06/01/2012.** **EXT.R4.B: COPY OF THE PETITION SUBMITTED BY 54 PERSONS OF THE LOCALITY DTD. 06/01/2012.** ## **//TRUE COPY//** **P.A. TO JUDGE** **Prv.** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.15059 of 2012 ---------------------------------------- Dated this the 18[th] day of March 2013 ## **J U D G M E N T** The petitioner had approached this Court challenging Ext.P3 decision taken by the Panchayath cancelling the permit issued by the Secretary of the Panchayath permitting the petitioner to construct a compound wall on the top of the existing basement constructed by the Public Works Department (PWD). Ext.P1 is the proceedings of the Assistant Executive Engineer, PWD Roads Sub Division, Cherthala granting permission to the petitioner to construct the compound wall on the basement put up by the PWD on various conditions which inter alia includes a condition that necessary sanction may be obtained from the Municipal/Panchayath authorities as per the Kerala Building Rules. Pursuant to the said direction, the petitioner obtained Ext.P2 building permit which was cancelled as per Ext.P3. W.P.C.No.15059 of 2012 2 2. The main contention urged by the petitioner is that the Panchayath has no authority to cancel the permit validly issued by a competent officer namely the Secretary of the Panchayath as per Ext.P2. The learned counsel also relied upon the judgment of this Court in **Dharmadom Paristhithi Samrakshana Samithi v. Dharmadom Grama Panchayat** _[2010(2)KLT 194]_ to indicate that the permit issued by the Secretary of the Panchayath exercising the power conferred on him cannot be cancelled by the Committee of the Panchayath. 3. The petitioner has also a case that they have given free surrender of land to enable the PWD to construct the basement and therefore there is nothing wrong on the petitioner to construct the compound wall on the top of the basement constructed by PWD. However, according to the petitioner, subject to the conditions specified in Ext.P1 which the petitioner have to scrupulously follow, it is open for the PWD to seek demolitiion of the said structure in the event of 3 W.P.C.No.15059 of 2012 any necessity. 4. In the counter affidavit filed by respondents 3 and 4, it is inter alia contended that the petitioner had obstructed construction of the retaining wall stating one reason or the other. It was with great difficulty that the construction was done. According to them, PWD is not authorised to surrender a public utility construction in favour of a private person. Reference is made to Section 169 of the Kerala Panchayath Raj Act in order to indicate that the compound wall constructed within the Panchayath area by PWD is absolutely vested with the Panchayath. PWD has no right to construct or allow any construction. Secretary has no power to allow construction of the compound wall as the property vested belongs to the Grama Panchayath and the Panchayath alone has the right to grant permission. 5. Heard learned counsel for the petitioner and the learned counsel for respondents 3 and 4. W.P.C.No.15059 of 2012 4 6. It is true that if there is a valid surrender of the property by the petitioner for the purpose of road, necessarily the property will vest with the Panchayath and the PWD might have constructed the basement as a protection to the road which they are maintaining in the said Panchayath. The question is whether the Secretary has the right to grant permission in the light of Ext.P1. This is not an ordinary case where the basement is constructed in the property of the Panchayath. This is a case where the petitioner had permitted the property to be used to enable the Panchayath to construct the basement in order to protect the road. In fact, the petitioner has also a case that he had given certain land as free surrender to the Panchayath for developing a road. 7. That being the situation, I do not think that there is any illegality or irregularity on the part of either PWD or the Secretary of the Panchayath in permitting the petitioner to construct the compound wall. It is true that the W.P.C.No.15059 of 2012 5 Panchayath Committee has a say in the matter. But then the fact remains that when the petitioner had given free surrender of land to enable the Panchayath to widen the road, all the more it is the obligation of the Panchayath also to see that the petitioner is not to put in unnecessary inconvenience. If he wants to protect his property by constructing a compound wall, the basement can as well be utilised for that purpose. 8. That being the situation, though there is some justification on the part of the learned counsel for respondents 3 and 4 to contend that the Panchayath has a say in the matter, in so far as no prejudice will be caused to the Panchayath in permitting the petitioner to construct a compound wall in the available basement subject to conditions in Exts.P1 and P2, I do not think that there is any justification on the part of the Panchayath as matters stand now to interfere with Exts.P1 and P2. In the result, Ext.P3 is set aside and it shall be open for W.P.C.No.15059 of 2012 6 the petitioner to proceed with the construction in accordance with Exts.P1 and P2. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.15059 of 2012 7 W.P.C.No.15059 of 2012 8