## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE P.BHAVADASAN**
**TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933**
**SA.No. 204 of 2000(G)**
**-----------------AS.70/1997 of III ADDL.SUB COURT, KOZHIKODE OS.151/1994 OF PRINCIPAL MUNSIFF COURT, KOZHIKODE-II**
**..................**
## **APPELLANT / RESPONDENT IN APPEAL / PLAINTIFF IN SUIT :**
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**K.V. DEVAKI AMMA, AGED 71 YEARS, D/O. AMMALU AMMA, RESIDING AT VADAKKINIYEDATH HOUSE, NADUVATTOM, AMSOM AND DESOM OF KOZHIKODE TALUK (DIED) LR'S IMPLEADED AS ADDL. APPELLANTS 2 TO 6)**
## ***LR'S OF DECEASED SOLE APPELLANT IMPLEADED**
**2. VASUDEVAN, AGED 59 YEARS, S/O. K.V. DEVAKI AMMA, RESIDING AT TASARA, NORTH BEYPORE, KOZHIKODE – 15.**
**3. BALAKRISHNAN, AGED 57 YEARS, S/O. K.V. DEVAKI AMMA, RESIDING AT VADAKKINIYEDATH NADUVATTOM, P.O. NORTH BEYPORE, KOZHIKODE.**
**4. SANTHAKUMARI, AGED 55 YEARS, D/O. K.V. DEVAKI AMMA, RESIDING AT VADAKKINIYEDATH NADUVATTOM, P.O. NORTH BEYPORE, KOZHIKODE.**
**5. VIJAYA, AGED 53 YEARS, D/O. K.V. DEVAKI AMMA, RESIDING AT VADAKKINIYEDATH NADUVATTOM, P.O. NORTH BEYPORE, KOZHIKODE.**
**6. REMANIDEVI, AGED 51 YEARS, D/O. K.V. DEVAKI AMMA, RESIDING AT VADAKKINIYEDATH NADUVATTOM, P.O. NORTH BEYPORE, KOZHIKODE.**
- **SUPPL. APPELLANTS 2 TO 6 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT AS PER ORDER DTD 7/4/2011 IN IA NO. 592/2011.**
**BY ADVS. SRI. P.A. HARISH**
- **SMT. RESMI NANDANAN**
**...2/-**
## **SA.No. 204 of 2000(G) -2-**
## **RESPONDENT / APPELLANT IN A.S. / DEFENDANT IN SUIT :**
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**BEYPORE GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, POST BEYPORE, BEYPORE VILLAGE, KOZHIKODE TALUK**
**BY ADV. SRI.T.M.ABDUL LATHEEF**
**THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Mn**
## **P.BHAVADASAN, J.**
------------------------------------SA No.204 of 2000-G ------------------------------------Dated this the 31[st] day of May 2011
## Judgment
The plaintiff, who was non-suited by the lower appellate court, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court.
2. The plaintiff, who is the owner of the plaint schedule property, surrendered a portion of the property having a width of five feet for widening a panchayat road situated on the northern side of her property. Thereafter, she put up a retaining wall on the northern boundary of her property. Later, the panchayat road was again sought to be widened and the plaintiff had again surrendered a portion of her property for the said purpose. Though the plaintiff started construction of the retaining wall on the northern boundary of her property, due to financial constraints, she could not complete its construction immediately after the
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surrender. Later, she wanted to construct the retaining wall and put up a compound wall on the northern boundary. For that purpose, she approached the Calicut Development Authority. As per the direction of the said authority, she approached the panchayat for necessary permission to put up the compound wall. The complaint of the plaintiff is that without considering her application, the panchayat has issued Ext.A1 notice, asking her to demolish the retaining wall which was already constructed. Thereafter, Ext.A3 final order was also passed, confirming Ext.A1 notice. Therefore, the suit was filed, seeking a declaration that the orders passed by the defendant are illegal and also seeking an order, restraining the defendant from proceeding against the plaintiff.
3. The defendant resisted the suit pointing out that the suit itself is not maintainable for want of notice under Section 123 of the Kerala Panchayat Raj Act. It was also pointed out that the construction made by the plaintiff was unauthorised and the plaintiff was not entitled to any
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relief. On the basis of these contentions, the defendant panchayat prayed for a dismissal of the suit.
4. The trial court, on the basis of the above pleadings, raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendant did not adduce any evidence. Exts.C1 and C2 commissioner's report and plan were marked.
5. On an evaluation of the materials available, the trial court found that Exts.A1 and A3 orders passed by the panchayat are illegal and also that Section 123 of the Kerala Panchayat Raj Act cannot have any application on the facts of the case. The suit was accordingly decreed in favour of the plaintiff.
6. The defendant panchayat carried the matter in appeal as AS No.70/97 before the Sub Court, Kozhikode. The lower appellate court found that the bar under Section 123 mentioned above applies and that the plaintiff has not complied with the said provision in the Act. However, while
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allowing the appeal, the lower appellate court directed that if the appellant files a proper application for sanction of plan and licence within one month from the date of that judgment, the defendant panchayat will consider and pass appropriate orders thereon in accordance with law untrammelled by any of the observations made by the court in its judgment. Holding so, the judgment and decree passed by the trial court was reversed. Hence the second appeal.
7. Notice is seen issued on the following
questions of law raised in the second appeal :
1. Is the suit hit by Section 123 of the Kerala Panchayat Raj Act, 1960 when the suit is primarily for an injunction restraining the panchayat from demolishing the wall.
2. In the facts and circumstances of the case, does the appellant require a permit to put up a retaining wall, less than 8 feet in height in view of the decision reported in 1995(2) KLT 1991.
3. Since there is no purchase of the land surrendered by
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the appellant, is not the construction put up by the appellant is in her own property by virtue of the decision reported in 1990(2) KLT 721.
8. During the pendency of the appeal before this court, the appellant died and her legal heirs have been brought on the party array.
9. The learned counsel for the appellant pointed out that the lower appellate court was not justified in reversing the judgment of the trial court as there was no legal infirmity in the judgment and decree of the trial court. According to the learned counsel, Section 123 cannot have any application to the facts of the case. Referring to Section 3 (4) of the Kerala Municipal Corporations Act, 1961, it was contended that since the height of the retaining wall was less than eight feet, the stand of the panchayat that there was violation of the Building Rules, is not justified. It was also pointed out that in pursuance of the directions given by the lower appellate court, an application was filed before the panchayat but, the panchayat has not
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acknowledged its receipt nor has it considered the same. In the meanwhile, if the retaining wall is demolished, the appellant will be put to considerable loss and injuries. It is further pointed out that none of the grounds relied on by the lower appellate court to non-suit the plaintiff, is sustainable in law.
10. The learned counsel for the respondent pointed out that there are several statutory authorities to take up such matters and the plaintiff has to approach the appropriate authority for redressal of her grievance.
11. One has to notice that it is doubtful whether the surrender could be upheld in law. However, Section 3 (4) of the Municipal Corporations Act relied on by the learned counsel for the respondent is not applicable because the commissioner has pointed out that the retaining wall has only a height of 8 feet. In the decision reported in **Abdul Latheef v. Corporation of Cochin** (1995(2) KLT 91), it was observed that sanction of the Corporation is not required if the height of the retaining wall
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is below 8 feet. Whatever that be, since the commissioner's report shows that the height of the wall is 8 feet, the panchayat cannot insist that the plaintiff should demolish the retaining wall.
12. As regards the application filed by the plaintiff for sanction, it is said to be pending before the panchayat. Earlier, an application was filed and it was during the pendency of that application that notice was issued to her. In pursuance of the lower appellate court decree, another application has been filed by the plaintiff. If that be so, there is no reason as to why the said application should not be considered.
13. As far as the bar under Section 123 of the Kerala Panchayat Raj Act is concerned, the immediate threat was demolition of the wall and notice was received to that effect. So, the immediate relief the plaintiff could seek was to restrain the defendant from demolishing the wall. But, since the construction of the retaining wall was not in violation of the Building Rules, the bar under Section 123 is
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not applicable. But the fact remains that the application filed by the plaintiff for licence is pending before the panchayat. It is only appropriate that directions issued by the lower appellate court be complied with.
In the result, while disposing of this appeal, it is directed that the authority concerned shall take up the applications filed by the plaintiff, seeking permission to construct the compound wall. This court is informed that the panchayat is no longer in existence and it has merged with Calicut Corporation. The application shall be dealt with accordingly by the Corporation in accordance with law as expeditiously as possible. Till those applications are disposed of, no action in pursuance of the notice issued to the plaintiff, shall be taken.
The appeal is disposed of as above. There will be no order as to costs.
## **P.Bhavadasan, Judge**
sta
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