IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 WP(C).No. 7079 of 2009(D) -------------------------------------- PETITIONER(S): ------------------------- BALAKRISHNAN A., AGED 54 YEARS, S/O.NAYADY, 'ARATHIL', SREESANTH, AZHINILAM P.O., VIA. FAROOK COLLEGE, MALAPPURAM DISTRICT. BY ADVS. SRI.P.S.SREEDHARAN PILLAI, SMT.C.G.PREETHA, SMT.P.RANI DIOTHIMA, SRI.ARJUN SREEDHAR, SRI.ANEISH RAVINDRA. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF PANCHAYATHS, OFFICE OF THE PANCHAYATH DEPUTY DIRECTOR, MALAPPURAM. 4. THE SECRETARY, VAZHAYOOR GRAMA PANCHAYATH, KARAD PARAMBA, MALAPPURAM-673 633. Kss ..2/- ...2.... WPC.NO.7079/2009 D * 5. THE EXECUTIVE ENGINEER, NATIONAL HIGHWAY BYEPASS, NATIONAL HIGHWAY SUB DIVISION, KOZHIKODE. *R5 IS SUBSTITUTED AS: THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, PIU - AISHWARYA ROAD, NEAR CIVIL STATION, KOZHIKODE. (*R5 IS SUBSTITUTED AS PER ORDER IN I.A.14315/2009 DTD.19/11/2009) R1 TO R3 BY GOVERNMENT PLEADER SRI. SANDESH RAJA R4 BY ADV. SRI.V.RAJENDRAN R5 BY ADV. SRI.THOMAS ANTONY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7079/2009 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DTD. 16/12/2003. P2: COPY OF THE REPLY DTD. 29/12/2003 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. P3: COPY OF THE NOTICE DTD. 17/01/2005 ISSUED BY THE TAHSILDAR, ERNAD TALUK OFFICE, MANCHERY. P4: COPY OF THE RECEIPT DTD. 30/03/2005 ISSUED BY THE TAHSILDAR, ERNAD TALUK OFFICE, MANCHERY. P5: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER SECTION 6 OF THE RIGHT TO INFORMATION ACT 2005 DTD. 10/12/2007. P6: COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT DTD. 21/2/2008. P7: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DTD. 4/03/2008. P8: COPY OF THE LAWYER NOTICE DTD. 20/06/2008 ADDRESSED TO THE PRESIDENT VAZHAYOOR GRAMA PANCHAYATH. P9: COPY OF THE REPRESENTATION DTD. 31/10/2008 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P10: COPY OF THE LETTER DTD. 16/12/2008 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P11: COPY OF THE COVERING LETTER DTD. 16/01/2009 ALONG WITH THE COPY OF THE LETTER DTD. 20/11/2008 ADDRESSED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. P12: COPY OF THE ORDER DTD. 25/05/2009. P13: COPY OF THE DEMAND NOTICE DTD. 21/02/2005. P14: COPY OF THE TAX RECEIPT DTD. 30/03/2005. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.7079/2009-D ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 15th day of September, 2010 J U D G M E N T The petitioner is the owner in possession and enjoyment of 11.75 cents of land in Re-Survey No.BL-5, Ward No.2 of Vazhayoor Panchayat, Malappuram District. It is situated by the side of Pantheerankavu-Ramanattukara National Highway Bye-pass road. It is pointed out that a major portion of the petitioner's family property was acquired for construction of Highway Bye-pass and the 11.75 cents of land is the remaining property. It is averred in the writ petition that on 24/12/2001, the petitioner had submitted an application before the fourth respondent seeking permission to construct a shop room along with the building plan. 2. It is pointed out by the learned counsel for the petitioner that after visiting the site, the Panchayat officials orally instructed the petitioner to start construction. 3. The learned counsel for the petitioner submits that later the petitioner received a notice under Section 406(2) of the Municipalities Act, 1994, as a provisional order, signed by the Secretary of the Panchayat, produced as Ext.P1 which was answered by the petitioner as per W.P.(C). No.7079/2009 -:2:- Ext.P2. Ext.P3 is the notice issued by the Tahsildar under Rule 8(1) of the Kerala Building Tax Ac, 1975 assessing the building tax at the rate of Rs.1,500/-. It is explained by the learned counsel for the petitioner that Ext.P3 is produced by mistake and the document in respect of the assessment of building tax is produced a Ext.P13 and, P14 is receipt showing remittance of the same. 4. The petitioner had been moving the Panchayat Department also for appropriate direction to number the building and finally, by Ext.P10 the petitioner was informed that since the construction is only within a distance of 3.50 metres from the National Highway, permission from the National Highway Authorities is required. Ext.P11(2) is the report submitted by the fourth respondent Panchayat before the Deputy Director. It is in these circumstances, this writ petition is filed seeking for various reliefs. 5. The Secretary of the Panchayat has filed a counter affidavit. It is pointed out that the petitioner had submitted an application for permission to construct two shop rooms having an extent of 33.99 Sq.M. But the said application which was received by the Secretary on 24/12/2001 is not seen entered in the registers of the Panchayat. The plan shows that the distance between the front side of the building and the Highway is only 3.50 metres and there should a minimum distance of 5 metres W.P.(C). No.7079/2009 -:3:- between the National Highway and the building. Apparently, for this reason, no further actions were taken by the Panchayat. It is further pointed out that during the Tax revision conducted in May May 2009, a building number (1/538) was mistakenly alloted to the said building by the enumerators on duty. It is also mentioned in paragraph (6) that from the records of the Panchayat, a notice like Ext.P1 is not seen issued to the petitioner and Ext.P2 reply is also not seen received by the Panchayat. Due to shifting of office many files have been displaced. 6. The crucial issue is whether the construction of the building, in any way, violates the prescriptions of the National Highway Authorities. Regarding this, the learned counsel for the petitioner invited my attention to Circular No.6899/R A3/2009/LSGD, dated 21/04/2009 issued by the Government. It is evident from the said Circular that so far the competent authority has not issued any notification under Section 18 of the Kerala Highway Protection Act. Therefore, it is made clear by the Government that there is no objection for granting permit in terms of the Kerala Building Rules when applications are submitted for construction. Evidently, therefore, the objection that the building is within a distance of 5 metres from the National Highway cannot hold good. Obviously, there is a distance of 3.50 metres from the road in question. In that view of the matter, at present, there cannot be any objection on W.P.(C). No.7079/2009 -:4:- the basis that the building is within the distance of 5 metres from the National Highway. 7. Even though the fifth respondent has been impleaded, they have not disputed the claim of the petitioner in this writ petition. 8. Ext.P10 is therefore quashed. Therefore, what remains to be done is the numbering of the building by the Panchayat along with the assessment of tax, if any, at the rate applicable in the Panchayat. If the petitioner files an appropriate application for numbering the building and to regularise the construction along with a copy of the Judgment, the same will be considered by the Secretary of the Panchayat in accordance with the relevant rules and appropriate action will be taken to number the building after collecting the required fees from the petitioner. The action will be finalised within a period of two months from the date of filing of the application for numbering of the building. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms