IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WP(C).No. 5052 of 2009(B) -------------------------------------- PETITIONER(S): ------------------------ ROY.K.J., AGED 48, S/O.JOSEPH, RESIDING AT KUTTIKATTU HOUSE, CHERUVALLOOR P.O., THRISSUR 680 321. BY ADVS. MR.JOHN NUMPELI (JUNIOR), MR.P.V.PAULSON. RESPONDENT(S): -------------------------- KADUKUTTY GRAMA PANCHAYAT, KADUKUTTY P.O., CHALAKUDY, THRISSUR DISTRICT, PIN 680 315, REPRESENTED BY ITS SECRETARY. BY ADVS. MR.SHEEJO CHACKO, MR.A.G.UNNIKRISHNAN, MR.DEVAN K.MENON. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5052/2009 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SALE DEED NO.3133/92 OF ANNAMANADA SUB REGISTRY. P1(A): COPY OF THE TAX RECEIPT DTD. 27/11/08 ISSUED FROM KALLUR VADAKKUMURI VILLAGE. P2: PHOTOGRAPH SHOWING THE NUMBERING OF THE BUILDING BELONGING TOTHE PETITIONER. P3: COPY OF THE APPLICATION DTD. 3/12/08 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. P4: COPY OF THE COMPLAINT DTD. 3/12/07 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. P5: COPY OF THE ORDER OF THE RESPONDENT DTD. 17/01/09 ISSUED TO THE PETITIONER. P6: COPY OF THE PETITIONER'S APPLICATION UNDER RTI ACT DTD. 2/04/2009 FILED BEFORE THE RESPONDENT. P7: COPY OF THE REPLY DTD. 25/04/2009 ISSUED BY THE RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.5052 OF 2009 (B) -------------------------------------------------- Dated this the 14th day of January, 2010 J U D G M E N T Petitioner submits that he owns 18.05 ares of land in Sy. No.1325 of Kallur Vadakkumuri Village. Ext.P1 is the sale deed and Ext.P1(a) is the tax receipt. For his residence, he constructed a house, work of which was started in 2005, when the Kerala Municipality Building Rules were not applicable to the area of the respondent Panchayat. While the work was going on, the rules were implemented with effect from 6.6.2007. Work was completed in November, 2008 and the building was numbered by the Panchayat. 2. Subsequently, the petitioner submitted Ext.P3 application to the Panchayat for assessing the building for the purpose of building tax and to issue an ownership certificate in order to enable the petitioner to apply for electricity connection from the Kerala State Electricity Board. By Ext.P5 dated 17.1.2009, he was informed by the Panchayat that his request was considered by the Panchayat Committee and that the building will be numbered on the petitioner getting the boundary of his property fixed. It is on WPC.No.5052 /09 :2 : receipt of Ext.P5 that the writ petition is filed challenging the same and requiring the respondents to issue the ownership certificate to the petitioner. 3. By order dated 26.3.2009, this court directed the respondent to issue an ownership certificate provisionally to the petitioner subject to the result of the writ petition. It is stated that in compliance with the said order an ownership certificate was issued and the petitioner availed of supply of electrical energy as well. 4. The contention raised in the counter affidavit filed by the respondent Panchayat is that there is violation of Section 220(b) of the Panchayat Raj Act in as much as the petitioner has not provided 3 meters set back between his building and the Panchayat Road, which is passing thorough the front portion of his building. It is stated that therefore the Panchayat required the petitioner to fix the boundary of his building so that the set back provided could be measured. In so far as the number that has already been assigned to the building is concerned, the Panchayat states that it was in compliance with a government order requiring the Panchayat to number the building WPC.No.5052 /09 :3 : chronologically that they numbered the building as claimed by the petitioner. 5. Petitioner has filed a reply affidavit producing Ext.P7 information obtained by him from the Panchayat itself in terms of the provision contained under the Right to Information Act which inter alia states that even the Panchayat road register does not contain the width of the roads of the Panchayat. 6. The only question is whether the building is liable to be assessed for building tax and an ownership certificate issued to the petitioner. The objection raised by the Panchayat is that, there is violation of Section 220(b) in as much as the set back of 3 meter is not provided between the building and the Panchayat road passing in front of the building. Ext.P2 photograph itself shows that from the existing boundary of the road to the front portion of the building there is more than 5 meter set back. This is clear from the photograph itself. On the other hand Panchayat state that what is actually seen at site is incorrect and the set back is less than 3 meters. This contention is available to the petitioner only if the Panchayat is able to show that the boundary of the Panchayat road is not what is actually seen at site. In the WPC.No.5052 /09 :4 : road register kept by the Panchayat also the width of the road is not mentioned. Therefore, the Panchayat is not able to show the width of the Panchayat road or its boundary. On the other hand it wants the petitioner to fix the boundary. 7. In view of the above facts, it is very clear that Panchayat themselves are not very sure about the boundary of the road. If so, it is only on assumptions that the Panchayat is arguing that the set back is less than 3 meters. In my view, in the above circumstances the Panchayat should have taken steps for assessing the building for levying the building tax. Panchayat is therefore directed to take steps for assessing the building for the purpose of building tax and to issue ownership certificate to the petitioner on the Petitioner paying the tax assessed. The assessment of the building as above shall be done within four weeks from the date of receipt of a copy of the judgment. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WPC.No.5052 /09 :5 :