PIOUS JOSEPH v. KALLOORKAD GRAMA PANCHAYATH and Ors.

W.P.(C)No.6419 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943** ## **WP(C) NO. 6419 OF 2021** ## **PETITIONER:** PIOUS JOSEPH AGED 56 YEARS S/O. JOSEPH, VATTAKUZHI HOUSE, KALLORKAD P.O. ERNAKULAM DISTRICT. BY ADVS. SRI MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE **RESPONDENTS:** 1 THE KALLOORKAD GRAMA PANCHAYATH KALLORKAD P.O. ERNAKULAM DISTRICT 686 668, REPRESENTED BY ITS SECRETARY. 2 SECRETARY, THE KALLOORKAD GRAMA PANCHAYATH, KALLORKAD P.O. ERNAKULAM DISTRICT 686 668. 3 ASSISSTANT ENGINEER, PWD ROADS SECTION, KALLOORKAD P.O. , ERNAKULAM 686 668. BY ADVS. SRI AJITH VISWANATHAN SRI JAYASANKAR.G SRI B.S.SYAMANTHAK,GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.11.2021, THE COURT ON 25.1.2022 DELIVERED THE FOLLOWING: W.P.(C)No.6419 OF 2021 2 ## **T.R.RAVI,J.** ## **-----------------------------** ## **W.P.(C)No.6419 OF 2021** **-------------------------------** ## **Dated this the 25th day of January, 2022** The writ petition has been filed challenging Ext.P2 order whereby a request made by the petitioner to the 2[nd] respondent for assigning a building number to the construction already made as per Ext.P1 building permit and Ext.P5 sanctioned plan was rejected. Ext.P2 says that the building has been constructed without providing for the set back of 3 metres required from the road as provided under Section 220(b) of the Kerala Panchayat Raj Act (the Act for short). It was also stated that there is a difference in the constructed area inasmuch as what was permitted under Ext.P1 permit was 123.45 M2, while the completed building has 125.63 M2 an excess of about 2 M2. The contention of the petitioner is that on the two sides where the building has the roads as its boundary, there is a drain constructed on the side of the road which is actually going through the property of the petitioner. It is submitted that if the width of the drain is also included, the construction is well within W.P.(C)No.6419 OF 2021 3 the 3 metres set back which is required under Section 220(b) of the Act. According to the petitioner, Ext.P3 is the survey sketch which has been prepared by him through a qualified Surveyor and it can be seen that the drain is constructed within the boundary of the petitioner's property. The petitioner submits that he has been paying the basic tax for the entire extent of the property which is available with him as per Ext.P7 title deed and the drain has been constructed through the registered holding of the petitioner. The petitioner submits that there has been no acquisition of the property of the petitioner for the purpose of putting up the drain nor has there been any free surrender of the property in the manner required by law. Reliance is place on the decision of this Court in **John v. Thaikkad Panchayat** reported in **[1990 (2) KLT 721]** , wherein it has been held that a free surrender can only be in the nature of a gift and the same has to be completed in the manner known to law through a registered document. Reliance is also placed on the decision in **Kanhangad Municipality v. Amina & Anr.** reported in **[2016 (1) KLT 728]** wherein again this Court held that a property can be treated as a part of a public street only if the same has either been acquired or freely surrendered in a manner W.P.(C)No.6419 OF 2021 4 known to law. This Court considered the issue with particular reference to Section 2(34) of the Municipalities Act, which defines 'public street', as per which a public street will include drains attached to any such street whether the property is private property or property belonging to the Government. The Court also says that the provisions of the Municipalities Act does not confer any authority on the Municipality to form a road through a private property, without acquiring the same by paying compensation to its owner. That is to say, the provisions will apply only in cases where there is no dispute between the Municipality and a private individual as to whether a portion of a private property has become a public street by express order or implied surrender. It is further stated in the judgment that if there is a dispute as mentioned above, the same will have to be resolved by a competent civil court. 2. Counter affidavits have been filed by the Panchayat as well as on behalf of the Government. As per the counter affidavit filed by the Panchayat, the drain has vested in the Panchayat and cannot be included for the purpose of finding out whether the building constructed has the required set back. It is also submitted that the petitioner did not submit a plan showing the drain. W.P.(C)No.6419 OF 2021 5 3. After hearing the counsel on either side, it is evident that the basic issue that has to be decided is whether the drain is lying within the registered holding of the petitioner and whether there has been any free surrender or acquisition of the said area by the Panchayat from the petitioner in a manner known to law. The counter affidavits filed by the respondents clearly say that there has been no acquisition of the property. What is stated is that the property has been surrendered impliedly and the petitioner has lost his title by acquiescence and loss of possession. If the contention is that there has been no acquisition of the property, necessarily, the question to be resolved will be whether there has been any legal surrender. Admittedly, there has been no document by which any surrender has been made by the petitioner. As such, it cannot be said that there is any express surrender of the property. Regarding the question whether there has been any implied surrender for the purpose of forming a public street, necessarily, the matter cannot be resolved in a proceedings in a writ petition and will have to be resolved only by means of a civil suit. As long as there is no determination by a civil court regarding the implied surrender, the only option available will be to measure the distance between the W.P.(C)No.6419 OF 2021 6 boundary as per the registered holding of the petitioner to the constructed building and if the said distance satisfies the requirement of law, I am of the opinion that the Panchayat cannot refuse to grant a building number. However, the grant of such a building number will not in any way prejudice the right of the Panchayat to approach a civil court regarding the question whether there has been an implied surrender by the petitioner of his property for the purpose of a public street. Regarding the question whether there is an excess of 2M[2] constructed, I deem it appropriate that the petitioner should be given an opportunity to set right the same to the satisfaction of the Panchayat. 4. In the result, the writ petition is disposed of directing the Panchayat to get the measurement of the distance from the boundaries of the registered holding of the petitioner to the constructed portion and if the distance so measured satisfies the requirement under Section 220(b), the said objection regarding deficiency of set back should not come in the way of issuing a building number to the petitioner. The Panchayat shall also after giving an opportunity to the petitioner regarding the excess in the total area of construction and after considering the possibility of W.P.(C)No.6419 OF 2021 7 setting the same right by any changes which can be made by the petitioner, inform the petitioner about the action that is to be taken to set right the defect. If the petitioner complies with such directions, the said defect pointed out should also not come in the way of granting the building number. It is made clear that this Court is not answering the question whether there has been an implied surrender by the petitioner, since the same cannot be considered in a proceedings under Article 226 of the Constitution of India. Any of the parties may, if so advised, approach the competent civil court for resolution of the said issue. Sd/- **==> picture [319 x 33] intentionally omitted <==** **T.R.RAVI JUDGE** dsn W.P.(C)No.6419 OF 2021 8 ## **APPENDIX OF WP(C) 6419/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT DATED 01.12.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 11.04.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE SURVEY SKETCH. EXHIBIT P4 TRUE COPY OF THE BASIC TAX RECEIPT DATED 02.09.2019. EXHIBIT P5 TRUE COPY OF THE PLAN SANCTIONED BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF THE COMPLETION PLAN SUBMITTED BY THE PETITIONER .. RESPONDENTS' EXTS: EXT.R1(A): TRUE COPY OF REPORT DT.13.2.2017 SUBMITTED BY THE 3RD RESPONDENT TO RESPONDENTS 1 AND 2 EXT.R1(B): TRUE COPY OF REPORT DT.10.4.2017 SUBMITTED BY THE ASSISTANT ENGINEER, LSGD SECTION OF THE 1ST RESPONDENT TO RESPONDENTS 1 AND 2. ANNEXURE R3(A): TRUE COPY OF SKETCH PREPARED BY THE 3RD RESPONDENT. ANNEXURE R3(B): TRUE COPY OF COMMUNICATION DT.13.2.2017.