IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 WP(C).No. 35092 of 2008(C) -------------------------- PETITIONER(S): --------------- SECRETARY, ISLAND CLUB,NARAKKAL ERNAKULAM DISTRICT. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT(S): --------------- 1. NARAKKAL GRAMA PANCHAYATH, NARAKKAL, REPRESENTED BY ITS SECRETARY, 2. PHILOMINA ANTONY,PRESIDENT, NARAKKAL GRAMA PANCHAYATH, NARAKKAL. 3. JOSEPH PAUL, KONATHAPPALLY HOUSE, CEMETERY ROAD, NARAKKAL, ERNAKULAM DISTRICT. 4. AUGUSTINE DAVID ALIAS BOSE, KANNAMPUZHA HOUSE, CEMETERY ROAD, NARAKKAL P.O. ERNAKULAM DISTRICT 5. STATION HOUSE OFFICER, NARAKKAL, ERNAKULAM DISTRICT. ADV. SRI.A.JAYASANKAR FOR R3 & R4 SRI. THOMAS T. VARGHESE. GOVERNMENT PLEADER SMT. K.R. DEEPA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35092 of 2008 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF THE SALE DEED DTD 26.5.1955 IN FAVOUR OF THE petitioner. EXT.P2: COPY OF THE BUILDING PERMIT NO.W-97/08-09 DATED 15.9.2008 ISSUED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE APPROVED PLAN NO.W-97/08-09 DATED 15.9.2008 ISSUED BY R1. EXT.P4: COPY OF PHOTOGRAPHS SHOWING THE FALLEN DOWN PORTION OF THE COMPOUND WALL. EXT.P5: COPY OF THE COMPLAINT DATED 29.9.2008 SUBMITTED BY THE PETITIONER BEFORE R5. EXT.P6: COPY OF THE ROUGH SKETCH. EXT.P7: COPY OF THE LETTER DATED 29.9.2008 ISSUED BY R2 TO PRESIDENT OF THE PETITIONER. EXT.P8: COPY OF THE LETTER DATED 30.9.2008 ISSUED BY THE PETITIOENR TO R1. EXT.P9: COPY OF THE LETTER DATED 4.10.2008. EXT.P10: COPY OF THE LETTER DATED 13.10.2008 ISSUED BY THE PETITIONER TO R2. EXT.P11: COPY OF THE LETTER DATED 29.10.2008 ISSUED BY R2 TO THE PETITIONER. RESPONDENTS' EXHIBITS EXT.R2: COPY OF THE REPRESENTATION DATED 29.9.2008 SUBMITTED TO THE RESPONDENTS. EXT.R2(a): COPY OF LETTER DATED 31.1.1984 ISSUED BY THE NARAKKAL PANCHAYAT TO THE VILLAGE OFFICER, NARAKKAL. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.35092 OF 2008 ---------------------------------------- Dated this the 15th day of December, 2008 JUDGMENT The petitioner is the Secretary of a Club. The Club is the owner in possession of 71 cents of land in Survey No. 235/1 in Narkkal Village. The property is separated from other properties by compound walls on all sides. Some time back a portion of the compound wall fell down due to heavy rain. The petitioner submitted an application before the 1st respondent – Panchayat for permission to re-construct the compound wall. The Panchayat issued building permit dated 15.9.2008 permitting the Club to re- construct the compound wall. When the petitioner tried to reconstruct the compound wall, the compound wall again fell down. Respondents 3 and 4, neighbours of the property then objected to the re-construction of the compound wall taking the contention that they will permit the Club to proceed with the construction only if the Club surrenders a portion of its property for widening the pathway adjoining the property. The President of the Panchayat at the instance of respondents 3 and 4 issued W.P.(c)No.35092/08 2 Ext.P7 letter dated 29.9.2008. directing the petitioner to stop construction of the compound wall. This was followed by Ext.P11 order dated 29.10.2008 by the 2nd respondent directing that the compound wall shall be constructed by leaving 5 links wide space. Exts.P7 and P11 are under challenge before me. 2. I have heard the learned counsel for the petitioner, the learned counsel appearing for respondents 1 and 2, the learned counsel appearing for respondents 3 and 4 and the learned Government Pleader appearing for the 5th respondent. 3. The fact that the petitioner is re-constructing the compound wall as per the permit issued by the Panchayat is not disputed before me. The learned counsel for respondents 1 and 2 submits that Exts.P7 and P11 are not orders interdicting the petitioner from constructing the compound wall, but only fervent request to the Club to leave 5 links of property for the purpose of widening the pathway. It is further submitted that there is no compulsion on the petitioner to do the same from the Panchayat. 4. In the above circumstances, I am satisfied that the respondents cannot prevent the petitioner from constructing W.P.(c)No.35092/08 3 the compound wall as per the permit issued by the Panchayat. It is their absolute discretion to decide whether or not to give 5 links of land for the purpose of widening the road. If the Panchayat wants to widen the road otherwise nothing prevents them from taking appropriate steps to get the property acquired for that purpose. For that reason the petitioner cannot be prevented from constructing the compound wall as per the permit issued by the Panchayat. Therefore, Exts.P7 and P11 are quashed and respondents 1 to 4 are directed not to interfere the petitioner’s reconstruction of the compound as per the permit issued by the Panchayat. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.35092/08 4