IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 OP.No. 35034 of 2001(U) -------------------------------- PETITIONER: ------------------- SASIDHAAN, NARANATTU HOUSE, NAYARAMBALAM, ERNAKULAM. BY ADV. SRI.P.N.PURUSHOTHAMA KAIMAL RESPONDENT: ----------------------- 1. THE SECRETARY, NAYARAMBALAM GRAMA PANCHAYAT, NAYARAMBALAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.LLOYD JOSEPH VIVERA SRI.C.A.CHACKO THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.35034/2001 ORDER ON CMP. NO.57237/2001 IN OP. 35034/2001 DISMISSED 01.01.2008 SD/- PIUS C.KURIAKOSE APPENDIX PETITIONER'S EXHIBITS EXT.P1:- COPY OF THE PERMIT WITH PLAN ISSUED BY RESPONDENT TO PETITIONER DT. 3.4.96. EXT.P2:- COPY OF THE APPLICATION FOR EXTENSION OF TIME SUBMITTED TO THE RESPONDENT DT. 2.11.01. EXT.P3:- COPY OF THE RECEIPT ISSUED FOR APPLICATION FOR EXTENSION ISSUED BY RESPONDENT DT. 2.11.01. EXT.P4:- COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE RESPONDENT TO THE PETITIONER DT. 2.11.01. EXT.R1(a):- COPY OF THE LETTER DT. 27/11/01 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.R1(b):- COPY OF THE SHOW CAUSE NOTICE DT. 7.12.01 ISSUED BY THE RESPONDENT TO THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE tss PIUS C. KURIAKOSE, J. ---------------------------------- O.P. NO. 35034 OF 2001 ---------------------------------- Dated this the 1st day of January , 2008 JUDGMENT The petitioner was issued with a building permit by the Nayarambalam Grama Panchayat for the construction of a compound wall on the boundaries of his property abutting a Panchayat road. Ext.P1 is copy of that building permit and it granted three years time to the petitioner from 3.4.1996 for completing the construction of the compound wall. According to the petitioner, he started construction of the compound wall and completed its foundation even before the expiry of three years period. But, he could not complete the construction on account of financial constraints. He filed an application dated 2.11.2001 seeking extension of Ext.P1 building permit. But the Panchayat issued Ext.P4 notice on the same day alleging that compound wall is being constructed without obtaining building permit and directing that the construction so far made be removed. 2. The Panchayat filed a detailed counter affidavit, wherein it is stated that the validity of Ext.P1 expired on 2.4.1999 and that the petitioner has not completed the construction of the compound wall O.P. No.35034/2001 2 within that period. It is alleged that mass complaints were received by the Panchayat complaining that the petitioner is making illegal constructions by encroaching into the road. The matter was enquired and it was found that the complaints are true and that was why Ext.P4 was issued to the petitioner directing him to demolish the illegal constructions. In spite of Ext.P4, the petitioner continued with the constructions. Ext.P2 application seeking extension of the permit was rejected by the Panchayat by Ext.R1 (a) on the reason that the validity period was expired. Subsequently on 7.12.2001, the Panchayat issued Ext.R1(b) show cause notice to the petitioner as to why the illegal constructions put up by him should not be demolished. To Ext.R1(b), a reply has been submitted by the petitioner contending that he has not made any illegal constructions. The counter affidavit goes on to allege that even after receipt of Ext.R1(b) show cause notice and even during the pendency of the writ petition before this court, the petitioner continued with his illegal construction in total violation of the provisions of the Panchayat Raj Act and hence the same is to be demolished. 3. Even though this court admitted the writ petition, this court did not become inclined to grant stay of demolition. The learned counsel for the Panchayat submits that considering the pendency of O.P. No.35034/2001 3 the wit petition, the Panchayat has not taken any action for compelling demolition of the illegal construction. There is no denying that the Panchayat will not be justified in refusing a building permit to the petitioner for construction of a compound wall for his property abutting a public road provided the wall is constructed on the boundary and without encroaching into the road. The allegation of the Panchayat is that even the foundation so far constructed was by encroaching into the public road. In other words, constructions have been in violation of the permit issued. The most effective and correct method for resolving the issue, in my opinion, is to have a measurement of the property conducted by a competent surveyor and have the correct boundary line between the petitioner's property and the public road be fixed, so that the petitioner will confine the constructions to his property. I therefore dispose of this writ petition issuing the following directions: The petitioner is directed to take steps for fixing the correct boundary line between his property and the public road by approaching the Tahsildar for the same. The measurement shall be conducted by the competent authority with notice to the petitioner and to the Panchayat. Once the measurement is conducted and the correct boundary line is fixed, the Panchayat shall permit the petitioner to O.P. No.35034/2001 4 continue with the construction of the boundary wall, on the basis of the permit which has now become stayed, on condition that all the constructions put up by the petitioner will be upon his property and not on the road in question. If the measurement reveals that any portion of the construction presently put up by the petitioner encroaches into the public road, the petitioner shall himself remove those constructions, failing which the Panchayat will be entitled to enforce removal of the construction at the expense of the petitioner. All the expenses to be incurred in connection with the measurement shall also be borne by the petitioner only. Needful shall be done by the petitioner for facilitating measurement within one month of receiving a copy of this judgment. Till such time measurement is conducted and the Panchayat issues orders on the basis of the measurement, status quo obtaining as on today regarding the constructions will continue. PIUS C. KURIAKOSE, JUDGE. dpk O.P. No.35034/2001 5 PIUS C. KURIAKOSE, J. ---------------------------------- O.P. NO. 35034 OF 2001 ---------------------------------- JUDGMENT 1ST JANUARY 2007