IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 WP(C).No. 5650 of 2005(V) --------------------------------------- PETITIONER(S): ------------------------ JOSE ANTONY MENACHERY, MENACHERY HOUSE, MURINGOOR P.O., MUKUNDAPURAM TALUK, REP. BY POWER OF ATTORNEY HOLDER SRI. M.A. FRANICS, S/O. ANTONY, MENACHERY HOUSE, MURINGOOR P.O., MUKUNDAPURAM TALUK. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. MELOOR GRAMA PANCHYATH, REP. BY ITS SECRETARY, MELOOR P.O., THRISSUR DISTRICT. R1 BY GOVT. PLEADER SMT.M.R.SREELATHA R2 BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5650/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE STOP MEMO DTD. 1.2.1997 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P2:- COPY OF THE ORDER OF THE IST RESPONDENT DT.D 29.11.1997. P3:- COPY OF THE INTERIM ORDER DTD. 23.6.1998 IN CMP. 176/98 IN OP. NO.146/1998 OF THIS HONOURABLE COURT. P4:- COPY OF THE RESOLUTION DTD. 25.5.1996 PASSED BY THE 2ND RESPONDENT. P5:- COPY OF THE APPLICATION SUBMITED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT. 25.2.2000. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 5650 of 2005-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of January, 2011. JUDGMENT The petitioner challenges the notice issued by the Panchayat alleging violation of Section 220(b) of the Kerala Panchayat Raj Act. He is the power of attorney holder of his brother and his wife. They are the owners in possession of 2 cents of land each in Sy. No.125/1 and 142/2 of Muringoor Village. A shop room was constructed after getting approval of the plan submitted before the Panchayat during the year 1993. It is stated in para 1 of the writ petition that the building abuts to N.H. 47 and a pocket road leading to a river known as Puzhakara Road. It is also stated that the petitioner has left three meters from the National Highway and 1.8 meters from the Puzhakara road. 2. It is the contention of the petitioner that since the Puzhakara road is not a notified one, the allegation regarding violation of Section 220(b) do not exist at all. Even though the petitioner approached the Deputy Director of Panchayats by way of appeal, that was not entertained and thereafter he moved the Government whereby the Government passed Ext.P2 order permitting the petitioner to construct the building as per the plan submitted, wpc 5650/2005 2 subject to the condition that there should not be any opening towards the pocket roads. It appears that the said order was challenged by the President of the Panchayat by filing O.P. No.146/1998 wherein Ext.P3 interim order was passed by this Court. Therein also, this Court permitted to make construction at his risk and cost. It is stated that the said original petition was dismissed as not pressed. Ext.P4 is the resolution passed by the Panchayat, whereby the Panchayat notified various roads for the purpose of Section 220(b) of the Act. It is pointed out by the learned counsel for the petitioner that the road in question is not included in Ext.P4. The petitioner also filed an application for regularisation of the construction as per Ext.P5. 3. In the light of the fact that the original petition challenging Ext.P2 order has been dismissed as not pressed, evidently the construction made by the petitioner is in terms of the permission granted by the Government as per Ext.P2. In that view of the matter, at this distance of time no action can be taken against the petitioner. The Government has only imposed a condition that there should not be any opening towards the pocket road side Therefore, on that ground itself the petitioner is entitled to succeed. Apart from that, in the light of the provisions of Section 220(b) of the Panchayat Raj Act, unless the Panchayat takes a decision to notify any particular road for the purpose of the said section, they cannot allege any violation of the wpc 5650/2005 3 provisions. Herein, evidently the road in question is not included in Ext.P4 resolution. In that view of the matter, the objection raised as per Ext.P1 cannot be sustained. Therefore, the writ petition is allowed. The construction of the petitioner will be treated as regular. Steps will be taken to number the building in terms of the rules. No costs. (T.R. Ramachandran Nair, Judge.) kav/