IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 WP(C).No. 13121 of 2005(K) -------------------------- PETITIONER(S): --------------- M.O.JOSE KUMAR, S/O.OUSEPH, AGED 46 YEARS, CENTRAL WOOD COMPLEX, PERUMBA, PAYYANNUR, RESIDING AT MANJALI HOUSE, PAYYANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): --------------- 1. THE SECRETARY, PAYYANNUR MUNICIPALITY, PAYYANNUR. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. V.K. KUNHIRAMAN, S/O. LATE KUNHIRAMAN, VADAKKE THALAKKAL HOUOSE, KUNHIMANGALAM AMSOM, EDANAD DESOM, PAYYANNUR, KANNUR DT. ADDL. R3 IMPLEADED AS PER ORDER DT. 22-6-2007 IN I.A.NO. 3907/2005. ADV. SRI.M.SASINDRAN FOR R1 SRI.O.V.MANIPRASAD FOR ADDL.R3 GOVT. PLEADER SMT. SUNITHA KUKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 13121 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 6th February, 2009. J U D G M E N T The petitioner is a saw mill owner by the side of a river within the Payyannur Municipality. He constructed a compound wall around the saw mill. By Ext. P1 notice, the petitioner was directed to show cause as to why the said compound wall should not be directed to be demolished on the ground that the same has been constructed encroaching into the land of the Municipality. The petitioner filed objections to the same, which did not find favour with the Secretary of the Municipality, who passed Ext. P2 order confirming Ext. P1 provisional order issued under Section 406. Against Ext. P2 order, the petitioner filed an appeal before the Government which passed Ext. P5 order confirming Ext. P2. The petitioner is challenging Exts.P. 2 and P5. 2. The petitioner raises two contentions. First is that Ext. P2 order is issued under Section 387 of the Kerala Municipality Act, which does not apply to the compound wall constructed by the petitioner. The contention is that under Section 387, an application for constructing a compound wall is necessary only if the compound wall is bounding or abutting any public street. According to the petitioner, the compound wall constructed by the petitioner does not bound or abut any public street. The second contention raised by the petitioner is that the banks of the river which flows through several Municipalities do not vest with any Municipality but vests only with the Government as Government puramboke and therefore the Municipality has no jurisdiction in respect of the land in question.. 3. The learned counsel appearing for the Municipality opposes the prayers of the petitioner. According to learned counsel, although in the form in which Ext. P1 has been issued Section 387 is mentioned, the ground on which Ext. P1 has been issued is that the W.P.C. No. 13121/2005. -: 2 :- petitioner has constructed the compound wall encroaching into land belonging to the Municipality. It is pointed out by the counsel for the Municipality that under Section 208A, the banks of a river within the municipal area vests with the Municipality. It is also pointed out that as per Rule 96 of the Kerala Municipality Building Rules, even for construction of boundary wall, permission from the Municipality is required and the petitioner has not admittedly not obtained the permit. After arguing for some time, counsel for the petitioner seeks permission to withdraw this writ petition without prejudice to the right of the petitioner to file a suit to establish his rights over the property in question. Permission is granted and the writ petition is dismissed as withdrawn with the above liberty. Sd/- S. Siri Jagan, Judge. Tds/ [true copy] P.S to Judge.