W.P.(C) No. 219 of 2012 (B)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 4TH DAY OF APRIL 2013/14TH CHAITHRA 1935** ## **WP(C).No. 219 of 2012 (B)** **--------------------------** ## **PETITIONER(S) :** - **---------------------** **C.A.KRISHNANKUTTY, AGED 59 YEARS CHERIYAPOLACKAL, NJALBHAGOM, KAVIYOOR.P.O THIRUVALLA, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT(S) :** - **-----------------------** ## **1. STATE OF KERALA** **REPRESENTED BY ITS ADDL. CHIEF SECRETARY DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001** ## **2. THE DISTRICT COLLECTOR** - **PATHANAMTHITTA - 689 645.** ## **3. THE TALUK SURVEYOR** - **THIRUVALLA - 689 101.** ## **4. THE VILLAGE OFFICER** - **KAVIYOOR, THIRUVALLA - 689 582.** ## **5. THE KAVIYOOR GRAMA PANCHAYATH** - **KAVIYOOR.P.O, THIRUVALLA PATHANAMTHITTA DISTRICT - 689 582 REPRESENTED BY ITS SECRETARY.** ## **6. THE SECRETARY** **THE KAVIYOOR GRAMA PANCHAYATH, KAVIYOOR.P.O THIRUVALLA, PATHANAMTHITTA DISTRICT - 689 582.** ## **7. THE EXECUTIVE ENGINEER** - **P.W.D (ROADS DIVISION), PATHANAMTHITTA - 689 645.** ## **8. THE ASSISTANT EXECUTIVE ENGINEER** - **P.W.D (ROADS AND SUB DIVISION), MALLAPPALLY PATHANAMTHITTA - 689 584.** **R1 TO R4,R7 & R8 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL R 5 & 6 BY ADVS. SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **WP(C).No. 219 of 2012 (B)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **EXT P1 COPY OF SALE DEED NO.2474/08 DATED 23.07.2008. EXT P2 COPY OF TAX RECEIPT DATED 03.06.2011. EXT P3 COPY OF POSSESSION CERTIFICATE DATED 04.06.2011. EXT P4 COPY OF LOCATION SKETCH DATED 04.09.2010. EXTT P5 COPY OF SITE PLAN. EXT P6 COPY OF THE BUILDING PERMIT NO.121/10-11 DATED 26.11.2010. EXT P7 COPY OF ANONYMOUS LETTER RECEIVED BY THE PANCHAYAT. EXT P8 COPY OF REPORT AND SKETCH SUBMITTED BY THE VILLAGE OFFICER, KAVIYOOR. EXT P9 COPY OF NOTICE DATED 28.06.2011 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER.** **EXT P10 COPY OF REPORT SUBMITTED BY THE TALUK SURVEYOR. EXT P11 COPY OF THE NOTICE DATED 22.08.2011 ISSUED BY THE 6TH RESPONDENT. EXT P12 COPY OF REPLY DATED 15.09.2011 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT.** **EXT P13 COPY OF APPLICATION DATED 15.09.2011 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT.** **EXT P14 COPY OF THE REPLY DATED 30.09.2011 ISSUED BY THE 6TH RESPONDENT. EXT P15 COPY OF THE APPLICATION DATED 19.11.2011 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR OF PANCHAYAT, PATHANAMTHITTA.** **EXT P16 COPY OF REPLY DATED 07.12.2011 BY THE 7TH RESPONDENT.EXT P17 COPY OF APPLICATION DATED 19.11.2011 SUBMITTED BY THE PETITIONER BEFORE THE 8TH RESPONDENT.EXT P18 COPY OF REPLY DATED 01.12.2011 ISSUED BY THE 8TH RESPONDENT.** **EXT P19 COPY OF THE ORDER/NOTICE DATED 02.12.2011 ISSUED BY THE 6TH RESPONDENT.** **EXT P20 COPY OF G.O.(MS) NO.187/2010/LSGD DATED 30.08.2010. EXT.P21 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DT 22/6/2012 UNDER RIGHT TO INFORMATION ACT AND REPLY DT 16/7/2012 GIVEN BY THE R6 ALONG WITH COPY OF COMPLAINANT.** **WP(C).No. 219 of 2012 (B)** **EXT.P21: COPY OF THE APPLICATION DT 22/6/2012 SUBMITTED BY THE PETITIOENR BEFORE THE PANCHAYAT COMMITTEE.** **RESPONDENTS' EXHIBITS :** **EXT.R5(a): COPY OF THE APPROVED PLAN. EXT.R5(b): COPY OF THE LETTER NO.DBGL 2135/06 DT 08/05/2012 FRO A E PWD (ROADS) MALLAPPALLY.** **//TRUE COPY// P.A. TO JUDGE** ## **BP** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No.219 of 2012 ---------------------------------------- Dated this the 4[th] day of April 2013 ## **J U D G M E N T** The petitioner has constructed a commercial building in an extent of 91 sq.meters of land, after obtaining a valid building permit. But when the petitioner approached the Panchayath for numbering the building, on the basis of certain complaints received by the Secretary of the Panchayath, an enquiry was conducted. Initially, the complaint was that the petitioner has trespassed into puramboke land. That was verified through the Taluk Surveyor and it was found that the petitioner has not trespassed into any puramboke land. Thereafter, the Panchayath issued another notice to the petitioner complaining that he does not have three meters frontage from the existing road and hence the construction is unauthorised. On that premise, Ext.P11 notice has been issued to the petitioner stating that there is violation of W.P.C.No.219/2012 2 Section 220(b) of the Kerala Panchayath Raj Act (hereinafter referred as the Act) and therefore the portion abutting three meters from the road portion has to be demolished for giving number to the building. The petitioner submitted a reply Ext.P12 stating that for small plots no building permit is required and therefore the Panchayath should not insist for such a requirement. 2. The petitioner has two fold contentions. One is that the road in front of the property of the petitioner is a Panchayath road and has not been notified and therefore Section 220(b) has no application. The second contention is based on the Kerala Panchayath Building Rules 2011 (hereinafter referred as the Rules). It is contended that no building permit is required as per the Rules in terms of Rule 10 of the sub Rules. 3. Counter affidavit is filed by the Panchayath controverting the contentions urged by the petitioner. According to them, the road in front of the petitioner's W.P.C.No.219/2012 3 property is a major district road as evident from Ext.R5(b), a letter issued by the Assistant Executive Engineer, PWD Road Sub Division, Mallappally. Therefore, strict adherence to Section 220(b) was required. It is also stated that the petitioner initially approached the Panchayath for a building permit and since the site plan showed that he had not left 3 meters distance from the road, he was asked to submit a revised plan. He resubmitted a revised plan showing 3 metres open area from the road, and the permit was issued by the Panchayath. The site plan Ext.R5(a) shows that the petitioner had left a distance of 3 meters from the road to front of the building. 4. The contention of the respondent is that at present the distance from the road is only 2.3 meters as evident from the Taluk Surveyor's report Ext.P10. 5. Heard learned counsel for the petitioner and the learned counsel appearing for the Panchayath. It is contended that as far as Section 220(b) is concerned, even if W.P.C.No.219/2012 4 it is a major district road it requires a notification as provided under Section 220(b). I do not think so. Section 220(b) reads as under: _“Construct any building or structure other than a compound wall in any land abutting any National Highway, State High way, District roads or any other roads notified by the Village Panchayath within a distance of three metres from the boundary of his land abutting the road._ _Provided that, the said limit of three metres shall not be applicable for the construction of first floor or second floor or both upon a building, existing on the date of coming into force of this Act._ _Provided further that, any path, bridge or similar construction used solely for entering into any building or weather shade or sun-shade forming part of the building may, subject to the rules regarding construction of building, be constructed within the said three metres limit.”_ W.P.C.No.219/2012 5 6. From the above provision it is clear that when a person intends to construct a building or structure in any land abutting any National Highway, State Highway, District road or any road notified by the Village Panchayath a distance of three metres from the boundary of the land has to be maintained. In respect of “any other roads” it has to be notified by the Village Panchayath. Since, in this case PWD department has issued Ext.R5(b) stating that road in front of the petitioner's property is a District road, I do not think that a notification as envisaged under Section 220(b) is required in the matter. 7. The learned counsel for the petitioner relies upon judgment of this Court in **Soman Pillai.G. v. Mavelikara - Thamarakulam Grama Panchayat and Others** [ _2008(4) KHC 160]_ in which a learned Judge of this Court has opined that Section 220(b) will apply only if the Panchayath issues notification in that regard even if it is a major district road. W.P.C.No.219/2012 6 8. It is pointed out that the said judgment had been overruled on a different ground in W.A.No.2348 of 2008 dated 16/06/2011. In paragraph 22 of the said judgment the Division Bench of this Court had opined as under: _“22. The question is whether Section 220(b) prohibits any construction within 3 metres from the boundary between the district road and the property upon which the construction is proposed to be made. The expression “district road” occurring therein in our opinion should take both the major district road or other district roads notified under Section 3 of the Kerala Highway Protection Act, 1999, more particularly in view of the scheme of the Highway Protection Act, which imposes various restrictions on the construction activity abutting any highway. It would be strange logic to say that construction within a distance of 3 meters from the boundary of a district road is prohibited but not in the case of a major district road. We therefore do not agree with the conclusion recorded by the judgment under appeal. To attract the prohibition contained under Section 220(b) of the Kerala Panchayath Raj Act, a_ W.P.C.No.219/2012 7 _notification contemplated under Section 220(b) is required. On the other hand, we are of the opinion that if the road in question that is Thamarakulam -Charummood road is notified to be a highway for the purpose of the Kerala highway Act, irrespective of the fact whether it is declared to be a major district road or not, the prohibition contained under Section 220(b) of the Kerala Panchayath Raj Act is attracted.”_ Therefore the judgment in **Soman Pillai** (Supra) stands overruled. 9. That apart in a Division Bench judgment of this Court in **Mulamthuruthy Grama Panchayat v. Ombudsman for L.S.G.I** _[2009(4)KLT 451]_ this Court had occasion to consider the impact of Section 220(b) of the Act wherein this Court had held that a notification is required only in respect of Panchayath roads. According to the Panchayath, the property of the petitioner is situated by the side of the major district road. Therefore compliance with Section 220(b) of the Act is mandatory. That apart the W.P.C.No.219/2012 8 petitioner had submitted a plan showing that he has a width of 3 meters at frontage and the building permit is issued as per the said plan. Admittedly building is not constructed as per the building permit. This again is a violation of the Rules and it is open for the Panchayath to take appropriate action for demolishion of the unauthorised construction. 10. The contention urged is based on Rule 10 of the 2011 Rules. The said Rules also gives an opportunity for small plots coming under Rule 10 not to obtain building permit. But that does not mean that they should ignore the Building Rules as such and carry on construction. That apart, this is not a case where the petitioner had applied under the 2011 Rules. At the time when the building permit was issued, the 2011 Rules had not come into force. In that view of the matter, Rule 10 will have no application in the case on hand. 11. The petitioner now seeks for a direction to number his building. The building can be numbered in terms of Rule W.P.C.No.219/2012 9 35. It is purely within the discretion of the Panchayath to grant building number if it is not constructed in accordance with the Rules. The petitioner had submitted Ext.P22 request to the Panchayath for numbering the building and according to the petitioner, even an unauthorised number would suffice and even if proceedings are taken by the Panchayath to demolish the structure, the petitioner will defend the same accordingly. 12. Taking into consideration the aforesaid factual situation, I am not inclined to interfere with the orders passed by the Panchayath and I am not inclined to grant any relief to the petitioner in the matter of regularising the construction of the building. However, having regard to the fact that the petitioner had requested for provisionally numbering the building it is for the Panchayath to consider the same especially in respect of the request made as per Ext.P22 and pass appropriate orders within a period of one month from the date of receipt of a copy of this judgment. W.P.C.No.219/2012 10 13. Needless to state that the petitioner is entitled to take any contentions, if any proceedings are taken by the Panchayath to demolish the unauthorised construction. Writ petition is disposed as above. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.219/2012 11 W.P.C.No.219/2012 12