IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 24475 of 2011(H) ------------------------- PETITIONER(S): ----------------------- 1. C.J.ANTONY, AGED 62 YEARS, S/O.JOSEPH, CHARAMKULAM HOUSE, WARD NO.9, MOOLAMPILLY, KADAMAKKUDI P.O., ERNAKULAM DISTRICT. 2. K.T.VARGHESE, AGED 72 YEARS, S/O.THOMAS, KURUMKOTTAYIL HOUSE, WARD NO.9, MOOLAMPILLY, KADAMAKKUDI P.O., ERNAKULAM DISTRICT. BY ADV. SRI.T.N.SURESH RESPONDENT(S): -------------------------- 1. KADAMAKKUDI GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KADAMAKKUDI P.O., ERNAKULAM DISTRICT - 682 030. 2. JOSHY, AGED 35 YEARS, S/O.SYRIACK, PANACKAL HOUSE, WARD NO.9, MOOLAMPILLY, KADAMAKKUDI P.O., ERNAKULAM DISTRICT - 682 030. R1 BY ADV. SRI.T.P.SANTHOSH KUMAR R2 BY ADV. SRI.K.R.VINOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 24475 of 2011(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE SKETCH SHOWING THE LIE AND NATURE OF THE PANCHAYATH THODU WITH ITS SURROUNDINGS. EXT.P2 : COPY OF THE COMPLAINT DATED 27.7.2011 SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE THE 1ST RESPONDENT. EXT.P3 : COPY OF THE REPORT DATED 9.8.2011 OF THE VILLAGE OFFICER, KADAMAKKUDI. EXT.P4 : PHOTOGRAPH SHOWING OBSTRUCTION OF WATER TRANSPORTING. EXT.P5 : PHOTOGRAPH SHOWING ENCROACHMENT OF THE THODU BY THE 2ND RESPONDENT. EXT.P6 : COPY OF THE NEWS ITEM APPEARED IN KERALA KOUMUDI DAILY DATED 26.9.2011. EXT.P7 : COPY OF THE NEWS ITEMS APPEARED IN JANAYUGAM DAILY DATED 25.9.2011. RESPONDENT'S EXHIBITS : EXT.R2(a) : COPY OF THE REPRESENTATION SUBMITTED BY THE MOTHER OF THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT PANCHAYATH. EXT.R2(b) : COPY OF THE REPORT SUBMITTED BY THE ASSISTANT ENGINEER BEFORE THE PANCHAYATH. EXT.R2(c) : COPY OF THE AGREEMENT DATED 23.08.2011. EXT.R2(d) PHOTOGRAPH OF THE PROPOSED CONSTRUCTION BEING DONE IN ACCORDANCE WITH THE PERMISSION GRANTED BY THE PANCHAYATH. EXT.R2(e) PHOTOGRAPH OF THE SCAFFOLDING WORK OF THE PROPOSED WIDENING OF THE EXISTING CONCRETE ROAD. EXT.R2(f) PHOTOGRAPH SHOWING THE PRESENT WASTE ACCUMULATION ON THE THODU. (Contd...) WP(C).No. 24475 of 2011(H) EXT.R2(g) PHOTOGRAPH SHOWING THE PLYING OF COUNTRY BOAT. EXT.R1(a) PHOTOCOPY OF THE APPLICATION DATED 13-7-2011 WHICH IS SUBMITTED BY THE ABOVE SAID PHYLOMINA BEFORE 1ST RESPONDENT. EXT.R1(b) PHOTOCOPY OF THE REPORT DATED 4-8-2011 OF THE ASSISTANT ENGINEER OF KADAMAKKUDY GRAMA PANCHAYATH. EXT.R1(c) THE AGREEMENT CUM CONSENT LETTER WHICH EXECUTED BETWEEN THE ABOVE SAID PHILOMINA WITH THE 1ST RESPONDENT. //TRUE COPY// P.A. TO JUDGE Mn HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 24475 of 2011 --------------------------------------- Dated this the 13th day of October 2011. JUDGMENT The writ petition is filed for a direction commanding the first respondent to take steps to stop the illegal construction and remove the encroachment made by the 2nd respondent upon the Panchayat Thodu comprised in Survey No.576/6, Ward No.9 of Kadamakkudi Panchayat and for other incidental reliefs. 2. The grievance of the petitioner is that the first respondent Panchayat is taking no action to remove the encroachment on the Panchayat thodu and stop the illegal construction by the 2nd respondent without any permission or consent from the authority. It is also pointed out that the encroachment and construction by the 2nd respondent on the Panchayat thoudu is without any valid consent or permission and therefore, it is liable to be removed. W.P.(C) No.24475/2011 2 3. In the counter affidavit filed by the 2nd respondent it is inter alia contended that there is a concrete slab road constructed by the Panchayat leading to several houses including the house of the 2nd respondent and that the said road is having no sufficient width for vehicle traffic. Therefore the 2nd respondent's mother approached the Panchayat seeking widening of the road without causing any encroachment and as well as without causing any hindrance for the flow of water through the thodu. Representation submitted by the mother of the 2nd respondent before the first respondent is marked as R2(a). The 2nd respondent also undertook that as and when it is being directed by the Panchayat to demolish the said widening portion, she would demolish the same at her expense. It is further averred in the counter affidavit, pursuant to R2(a) application, the Assistant Executive Engineer of Kadamakkudy Grama Panchayat conducted an inspection and submitted a report to the Panchayat regarding the actual situation of the thodu which is marked as R2(b). After considering R2(a) application and R2(b) report and other facts and W.P.(C) No.24475/2011 3 circumstances, the Panchayat decided to grant consent to the petitioner and his mother to widen the road without causing any obstruction to the flow of the water through the thodu. R2(c) is the copy of the agreement executed by the mother and the 2nd respondent with the Grama Panchayat. Consequent to R2(c), the petitioner started the work of widening the road. The work includes construction of a bell mouth at the corner portion of the said road without erecting any pole in the thodu. R2(d) is the photograph of the proposed construction being done at the site. The first respondent Panchayat has also filed a counter and in the counter affidavit, it is stated that the construction carried out is as per the agreement executed between the mother of the 2nd respondent and the Panchayat. It is intended to widen concrete road already in existence and that the construction carried out at this time will not cause any obstruction. 4. In the aforesaid circumstance, the allegation in the writ petition that the 2nd respondent is making construction illegally without consent and that the Panchayat is duty bound to take action W.P.(C) No.24475/2011 4 against the 2nd respondent to stop the illegal construction and remove the encroachment is without any basis. I find that there is no merit in the writ petition and the petitioner is not entitled to get any relief in the writ petition. The writ petition is dismissed. HARUN-UL-RASHID JUDGE al