IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 WP(C).No. 32801 of 2006(E) -------------------------- PETITIONER: ------------ 1. P.D. DEVASSYKUTTY, PONTHEPPILLY HOUSE, CHENGAL P.O., KALADY, ERNAKULAM DISTRICT. 2. A.M. BEERAVU, ETTIYATTIRA HOUSE, CHENGAL P.O., KALADY, ERNAKULAM DISTRICT. 3. TOMY PAULOSE, ALUKKAL HOUSE, CHENGAL P.O., KALADY, ERNAKULAM DISTRICT. BY ADV. SRI.K.JAJU BABU SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SMT.DHANYA CHANDRAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVT.SECRETARIAT THIRUVANANTHAPURAM. 2. KALADY GRAMA PANCHAYAT, KALADY P.O., ERNAKULAM DISTRICT, PIN-683574, REPRESENTD BY ITS SECRETARY. BY ADV. SRI.DINESH MATHEW J.MURICKEN FOR R2 R1 BY GOVERNMENT PLEADER SRI K.V.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 32801 of 2006 -------------------------------------------------------- Dated: JULY 31, 2008 JUDGMENT Petitioners are the owners of 4 cents of land and a two storied building in Sy.No.164/2A (R.S.No.396/43) of Manikamangalam Village within the jurisdiction of the 2nd respondent Panchayat. According to the petitioners, the two storied building referred to above, was in existence for the past more than 50 years and is having four rooms where they, along with a brother of the 3rd petitioner, are conducting business. It is stated that for this purpose they were being issued licences also. While so, 0.07 Ares out of the aforesaid 4 cents was acquired by the Government for widening of Muvattupuzha - Angamaly Road, as a result of which the front portion of the two storied building was demolished. 2. It is stated that they wanted to repair the front portion of the building and reconstruct the first floor. WP(C) 32801/06 2 While so, they were issued Ext.P6 notice by the 2nd respondent Panchayat informing that they had violated sec.220(b) of the Panchayat Raj Act, by not leaving enough clearance between the building and the road. It was also alleged that they had not obtained a permit from the Panchayat for the construction of the building. They filed reply to Ext.P6 notice. Thereupon the petitioners took up the matter with the District Collector and before the District Collector the Panchayat filed Ext.P7 reply mainly contending that in view of sec.220(b) of the Panchayat Raj Act, they did not have the power to relax the rule. 3. At that stage the petitioners filed a writ petition before this Court as WP(C) 12152/2006. In the writ petition, petitioners raised two contentions; one was that by Ext.P4 resolution of the Perumbavoor Municipality, in identical circumstances, relaxation was granted and that the said relaxation was also accepted by the Government. On this basis petitioners contended that they are also WP(C) 32801/06 3 entitled for identical relaxation. The other contention that was raised was that since the building was in existence at the time when the Panchayat Raj Act was implemented in 1994, they were exempted from the rigor of section 220(b) in view of the first proviso to sec.220(b) of the Act. This Court disposed of that writ petition by Ext.P9 judgment directing that the matter shall be reconsidered by the Government. Accordingly the Government reconsidered the matter and issued Ext.P10 order. It is challenging Ext.P10 this writ petition is filed. 4. A reading of Ext.P10 order shows that while the Government rejected the claim of the petitioners for parity in treatment with the beneficiaries of Exts.P4 and P5, the Government have not considered the claim of the petitioners for the benefit of the first proviso to sec.220(b). It is stated in Ext.P10 that since the Kerala Municipality Building Rules have not been implemented to the area in question, the exemptions that are provided to those who WP(C) 32801/06 4 have freely surrendered land contained in Chapter 11 of the Municipality Building Rules, are not available to the petitioners therein. It is on that ground the claim of the petitioners had been rejected. 5. Even if it is accepted for argument's sake that the petitioners are not entitled to the benefit of Exts.P4 and P5 as claimed by them, still the question survives whether the petitioners are entitled to the benefit of the first proviso to sec.220(b). The learned counsel for the Panchayat points out that according to them what is constructed by the petitioners is entirely a new structure. However, since it is a matter for the respondents to consider, I do not think that a decision on this disputed question is necessary in this writ petition. In my view, the claim of the petitioners for the benefit of the first proviso to sec.220(b) is a matter for the consideration of the Government and since the Government have not considered the same, athough the point was raised in the writ petition resulting in Ext.P9 judgment, Ext.P10 WP(C) 32801/06 5 needs a reconsideration. 6. Accordingly, I quash Ext.P10 and direct that the 1st respondent shall consider the matter as directed in Ext.P9 judgment as expeditiously as possible, and at any rate, within three months of production of a copy of this judgment. Before final orders are passed, notice shall be given to the petitioners and the 2nd respondent Panchayat. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE mt/-