IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 WP(C).No. 21229 of 2008(B) ---------------------------------------- PETITIONER: -------------------- PETER THOMAS, ATTUVELIL HOUSE, RAMAMANGALAM P.O., ERNAKULAM DISTRICT, PIN: 686 663. BY ADV. SMT.MARY BENJAMIN RESPONDENT: ---------------------- THE SECRETARY, RAMAMANGALAM GRAMA PANCHAYATH, OFFICE OF THE RAMAMANGALAM GRAMA PANCHAYATH, RAMAMANGALAM P.O., ERNAKULAM DISTRICT, PIN 686 663. ADV. SMT.JIJI N.VARGHESE FOR R1 SRI.MOHAN IDICULLA ABRAHAM FOR R1 SRI.MARTIN D.ALUMKARA FOR R1 SRI.RACHEL JOSEPH FOR R1 SMT.PUSHPY B.MURICKEN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21229/2008 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LR.NO.P10/PKD/08-09/1 DTD. 16/6/08 ISSUED BY THE KSEB. EXT.P2: COPY OF THE ORDER DTD. 7/01/2008 OF THE 1ST RESPONDENT. EXT.P3: COPY OF THE REPLY GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P4: COPY OF THE LETTER GIVEN BY THE PETITIONER TO THE PRESIDENT OF 1ST RESPONDENT. EXT.P5: COPY OF THE JUDGMENT DTD. 19/03/2008 IN WP(C) 9398 OF 2008. EXT.P6: COPY OF THE PROCEEDING DTD. 2/4/08 OF THE RESPONDENT. EXT.P7: COPY OF THE PROCEEDING DTD. 25/01/08 OF THE VILLAGE OFFICER. EXT.P8: COPY OF THE REPRESENTATION DTD. 8/04/2008 OF THE PETITIONER TO THE RESPONDENT. EXT.P9: COPY OF COVERING LETTER DTD. 25/04/2008 WITH ARGUMENT NOTES SUBMITTED BY THE PETITIONER. EXT.P10: COPY OF PROCEEDINGS DTD. 19/05/08 OF THE RESPONDENT. EXT.P11: COPY OF APPEAL BEFORE THE PANCHAYATH COMMITTEE. EXT.P12: COPY OF PROCEEDINGS DTD. 12/06/08 OF THE PRESIDENT OF THE RESPONDENT. EXT.P13: COPY OF THE REQUEST DTD. 24/06/08. EXT.P14: COPY OF PROCEEDING DTD. 30/06/08. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. =============== W.P.(C) NO. 21229 OF 2008 B ==================== Dated this the 25th day of August, 2008 J U D G M E N T Petitioner is seeking to quash Exts. P2, P6, P10 and P14 and seeks an order compelling the respondent not to interfere with the completion of rain guard over the motor shed, which is situated in the river puramboke of the Muvattupuzha river, vested in the respondent Panchayat. 2. Petitioner submits that he is an agriculturist by profession and that his land is situated close to the Muvattupuzha River. It is stated that for irrigation purposes, he has been using water drawn from the river and for this purpose, for ages, a shed was constructed on the bank of the Muvattupuzha river, which by virtue of the provisions contained in the Kerala Panchayat Raj Act, has vested in the respondent Panchayat. 3. Petitioner submits that the motor was kept in the shed and that during monsoon when the water level in the river increases, the motor was getting damaged, as a result of which he had to take steps for keeping the motor at a higher level. It is WPC 21229/08 :2 : stated that in view of the above, the motor was removed from the ground level and was relocated at the top level of the motor shed. As at the top level, there was no roofing, petitioner started construction of the rain guard with the consent of the Panchayat. 4. Still, making reference to certain complaints received, Panchayat issued Ext.P2 notice objecting to the work. Thereupon, petitioner submitted Ext.P3 to the Secretary and Ext.P4 to the President requesting them to permit him to complete the work. As there was no progress in the matter, he approached this court and filed a writ petition as WP(C) NO.9398/08 resulting in Ext.P5 judgment directing that the 1st respondent shall pass orders on Ext.P3 on an expeditious basis. 5. Petitioner submits that thereafter, Ext.P6 was issued by the Panchayat calling upon the petitioner to produce an ownership certificate in respect of the structure put up by him and that the Panchayat had to ascertain as to whether there was any tresspass into the river puramboke. According to him, before Ext.P6, he was not given any opportunity of hearing and therefore he continued to make representations as per Exts. P8 WPC 21229/08 :3 : and P9. Finally, he was heard in the matter and the Panchayat issued Ext.P10 order reiterating the stand it took in Ext.P6. 6. Petitioner carried the matter in appeal by filing Ext.P11 before the Committee of the Panchayat and that resulted in Ext.P12. From Ext.P12, what is seen is that the Panchayat has made it known that the structure in question was in existence for the last several years and that the same was being used for housing the motor for agricultural purposes. Thereupon, petitioner submitted Ext.P13 application for building permit and that was responded by the Panchayat by Ext.P14. It is on receipt of Ext.P14, this writ petition has been filed. A reading of Exts. P2, P10 and P14 shows that the petitioner has been called upon to produce a sketch prepared by a Taluk Surveyor along with a certificate proving the ownership of the building in question. This stand of the Panchayat is reiterated by it in the counter affidavit filed in this writ petition. 7. True, in normal circumstances, the requirement of an ownership certificate cannot be objected to by the petitioner, since that is a requirement of the Kerala Municipality Building WPC 21229/08 :4 : Rules, which has been made applicable to the respondent Panchayat. But then, in this case, the Panchayat itself has recognised the existence of a structure and as is seen from Ext.P12, it has been accepted that the structure in question has been in existence for the last several years. 8. What is now required by the petitioner is a permit to put up a rain guard over the topmost portion of the motor shed, in order to protect the motor from sun and rain. The Panchayat accepts the position that the shed in question has been constructed by the petitioner in a river puramboke land vested in the Panchayat by virtue of the provisions contained in the Kerala Panchayat Raj Act. Thus, even according to the Panchayat, the land belongs to it and the petitioner also has no case to the contrary. If that be so, the insistence of the Panchayat that the petitioner should produce the certificate proving ownership of the structure in his favour and that too from the revenue authorities, is a condition which is incapable of compliance. In my view, even according to the Panchayat, as the land belongs to it and as the Panchayat has not so far or even now objecting to the structure WPC 21229/08 :5 : put up by the petitioner, it will be too harsh to insist on the production of the building permit. 9. Therefore, in my view, this is a fit case where having regard to the peculiar facts and circumstances, the Panchayat should consider the application of the petitioner, without insisting on the production of an ownership certificate as required in the impugned orders, but subject to compliance with all other statutory formalities. 10. Therefore, this writ petition is disposed of directing that it will be open to the petitioner to make a fresh application to the Panchayat for permit as requested in Ext.P13, producing necessary documents other than the ownership and that on receipt thereof, the Panchayat shall within 4 weeks thereafter consider the matter and pass orders in the matter. 11. It is clarified that this judgment will not stand in the way of the Panchayat seeking clearances from the irrigation and other authorities if such clearances are necessary. ANTONY DOMINIC, JUDGE Rp