IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 WP(C).No. 3927 of 2008(P) ------------------------- PETITIONER: ------------ 1. G.SOMAN PILLAI,S/O.GOVINDA PILLAI CHAKALAYIL DEEPIKA, THAMARAKULAM P.O.,ALAPPUZHA. 2. K.ASWATHIKUMARI, AGED 48 YEARS, W/O. G.SOMAN PILLAI, CHAKALAYIL DEEPIKA THAMARAKULAM P.O.,ALAPPUZHA. BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS: ------------- 1. THE MAVELIKARA-THAMARAKULAM GRAMA PANCHAYAT, SPECIAL GRADE, THAMARAKULAM P.O.,ALAPPUZHA. REPRESENTED BY ITS SECRETARY. 2. SECRETARY, THE MAVELIKARA-THAMARAKULAM GRAMA PANCHAYAT, SPECIAL GRADE, THAMARAKULAM P.O.,ALAPPUZHA. ALAPPUZHA. BY ADV. SRI.S.BIJU (KIZHAKKANELA) FOR R1 & 2 GOVT. PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/09/2008, ALONG WITH WPC NO. 33152 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)Nos. 3927 of 2008 & 33152 of 2007 ----------------------------------------------- Dated this the day of July, 2008 J U D G M E N T The common question which arises for decision in both these writ petitions is whether the 3 metre distance rule provided under section 220(b) of the Kerala Panchayat Raj Act will apply to constructions by the side of major district roads. 2. The case of the petitioners in WP(C). 3927/08 is that they are constructing a building upon their small extent of 2 cents of land comprised in Sy. No. 390/2-2 of the Thamarakulam Village within the area of respondent Mavelikkara-Thamarakulam Grama Panchayat. According to them, they commenced the construction in the year 2000-01. After completing a portion due to financial constraints and due to illness of the first petitioner the construction had to be stopped. Later after obtaining financial assistance from the LIC of India they re-started the construction, but the constructions were interdicted by the respondents,viz. the Secretary of the Panchayat. No prior notice was issued to the petitioners and the petitioners were not afforded any opportunity to have their say in the matter. Petitioners approached this court and obtained Ext.P6 judgment. Under Ext.P6 this court directed the Secretary of the Panchayat to WP(C)N0.WP(C). 3927/08 -2- consider the Panchayat's order restraining constructions as a show cause notice and permitted the petitioners to submit Exts.P3 to P5 objections. Secretary of the Panchayat was directed to take decision on the issue and pass fresh orders within two weeks. The Panchayat was also directed to verify whether any notification has been published regarding the road upon which the constructions are being made for the purpose of section 220(b) in the Gazette. This court had also indicated that if any notification has been published in the Gazette the Panchayat has to proceed as if Section 220(b) does not apply. Pursuant to Ext.P6, P7 order has been issued in gross violation of the directions in Ext.P6. According to the petitioner the road is not a notified road and therefore P7 order informing the petitioner that permit will be issued only if constructions made within the distance limit are demolished is illegal. Prayers in the writ petition No. 3927 of 2008 are the following: i. To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P1 notice and Ext.P7 order issued by respondent No.2. ii. To issue a writ in the nature of mandamus or any other appropriate writ or order directing the respondents to permit the petitioners to continue the construction of shop rooms building in the small extent 2 cents of their property comprised in Survey No.390/2-2 Block No.18 of Thamarakulam Village in Mavelikara Taluk, within such time WP(C)N0.WP(C). 3927/08 -3- as this Hon'ble Court may deem fit and proper in the interest of justice. iii. To issue a writ in the nature of mandamus or any other appropriate writ or order directing the respondents to consider and pass final orders on Exts.P3, P4 and P5 representations with notice and opportunity of hearing to the petitioners, within such time as this Hon'ble Court may deem fit and proper in the interest of justice. 3. The challenge in WP(C).No. 33152 of 2007 is against Ext.P2 order issued by the Mannur Grama Panchayat, the first respondent. Under Ext.P2 the petitioner is directed to demolish a building on the alleged violation of Section 220(b) of the Panchayat Raj Act. According to the petitioner Section 235 (wc) of the Panchayat Raj Act authorises the Secretary to issue order of demolition, only after service of a show cause notice as mandated under section235(w)(2) is issued. Such a show cause notice is absent in this case. Petitioner further contends that his constructions are within 3 metres from the outer wall of the drain which goes by the side of the road. Thus the constructions do not in fact offend section 220(b). Petitioner further contends that Pathiripala – Kongad road on the side of which construction has been made is major district road. Section 220(b) does not restrict constructions abutting a major district road. The petitioner also contends that the road is not a road notified by the Panchayat for WP(C)N0.WP(C). 3927/08 -4- attracting section 220(b) of the Panchayat Raj Act. Prayers in WP(C) No. 33152 of 2007 are the following: i. Call for the entire records which led to Ext.P2 and quash the same by the issuance of a writ in the nature of certiorari or any other appropriate writ, direction or order. ii. Declare that the petitioner has not violated Section 220(b) of the Kerala Panchayat Raj Act, 1994 in the matter of construction of building in the property covered as per Ext.P1 and issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding respondents to number the building. 4. The Secretary of the Panchayat has filed a detailed counter affidavit in WP(C). No. 3927 of 2008. As regards the claim that the construction had started in the year 2000 – 01 it is contended that the said claim has to be proved by the petitioner himself. It is pointed out that the Kerala Municipality Building Rules 1999 has been made applicable to Panchayats vide G.O.(MS) No. 180/07/LSGD dated 6-6- 07 and Ext.P2 Circular has been issued by the Government prescribing guidelines for the implementation of these rules. It is contended that as per Ext.P2 circular permit will be issued only in respect of those constructions for which NOC had been issued prior to the commencement of the rule and the construction has not progressed beyond the ground level only in accordance with the K.M.B.R. WP(C)N0.WP(C). 3927/08 -5- Moreover, respondent Panchayat has issued Ext.R2(a) public notice dated 13-7-07 intimating that all constructions which were started prior to the coming into force of the Kerala Municipality Building Rules which had already completed the constructions for which building number had not been issued should submit details regarding the address, village, ward, nature of construction, site plan together with a photograph of the building to the Panchayat on 30-7-2007. On coming to notice that the petitioner started an unauthorised construction in violation of the Municipality Building Rules and Section 220 (b) of the Panchayat Raj Act and that the petitioner had not submitted the details pursuant to Ext.R2(a) Ext.P1 notice was issued to him demanding stoppage of the construction. On a first round inspection of the site, the respondent has reason to believe that the construction commenced only in the year 2007. It is then contended that the road in question, Sasthamcotta – Charummoodu Road is a district road and the said district road is a major road which connects the districts of Alappuzha and Kollam. The said road is not a Panchayat Road as the petitioner contends. It is a district road maintained by the PWD. Ext.R2(b) certificate issued by the Asst. Executive Engineer, PWD Roads Sub Division is relied on in this context. Therefore the construction is hit WP(C)N0.WP(C). 3927/08 -6- by section 220(b) and is liable to be removed. 5. As regards Ext.P6 judgment it is contended that the said judgment has obtained by the petitioner by concealing material facts. On 28-12-2007 the petitioner submitted application in the prescribed format for permit along with a detailed plan of the building and also a site plan. In the site plan the distance from the road is shown as 3 metres. Ext.R2(c) is copy of the permit application along with copies of the building plan and site plan. Since the respondents felt that petitioner was attempting to continue with the unauthorised constructions deceiving from Ext.R2(c) plan, Ext.P7 was issued to him. Ext.P7 is not issued in pursuance to Ext.P6 judgment. But the same has been issued pursuant to Ext.R2(c) plan submitted by the petitioner. Ext.P7, it is contended, is not an order but is only an intimation/notice given to the petitioner to the effect that R2(c) can be approved only if the unauthorised constructions are demolished. Ext.R2(d) hearing notice was issued to the petitioner informing the petitioner appear for a hearing pursuant to Ext.P6 judgment. Subsequently the petitioner submitted a request before the Panchayat stating that this court has issued interim order staying the proceedings and hence the hearing had to be adjourned. Ext.R2(e) is copy of the WP(C)N0.WP(C). 3927/08 -7- request submitted by the petitioner. 6. I have heard the submissions of Sri.S.Subhash Chand, learned counsel for the petitioner in WP(C) No. 3927 of 2008, Sri.Vinod Madhavan, learned counsel for the petitioner in WP(C) No. 332152 of 2007 and those of Sri.S.Biju, learned counsel for the Panchayat in WP (C). No. 3927 of 2008 and also the learned Government Pleader who appeared for the additional 3rd respondent in WP(C). No. 33152 of 2007, the Executive Engineer, PWD Roads Division, Palakkad. (PIUS C.KURIAKOSE, JUDGE)