IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WA.No. 2348 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.3927/2008 Dated 15/09/2008 .................... APPELLANT(S): RESPONDENTS NO.1 AND 2 -------------------------------------------------------------- 1. THE MAVELIKKARA - THAMARAKULAM GRAMA PANCHAYATH, SPECIAL GRADE, THAMARAKULAM P.O ALAPPUZHA REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, THE MAVELIKKARA - THAMARAKULAM GRAMA PANCHAYATH, SPECIAL GRADE, THAMARAKULAM P.O., ALAPPUZHA. BY ADV. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA) RESPONDENT(S): PETITIONERS ---------------------------------------------- 1. G.SOMAN PILLAI, S/O.GOVINDA PILLAI, CHAKALAYIL DEEPIKA, THAMARAKULAM P.O. ALAPPUZHA. 2. K.ASWATHIKUMARI, AGED 48 YEARS, W/O.G.SOMAN PILLAI, CHAKALYIL, DEEPIKA, THAMARAKULAM P.O., ALAPPUZHA. ADV.SRI.SUBHASH CHAND THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO.2348/08 APPENDIX APPELLANTS' EXHIBITS ANNEXURE A1: A TRUE COPY OF THE CHAPTER 2 PAGE NO.22 TO 34, 44 TO 55 AND 57 TO 63 OF “HIGHWAY ENGINEERING” AUTHROISED BY DR.S.K.KHANNA AND DR.C.E.G. JESTO FIFTH EDITION 1984 PUBLISHED BY NEM CHAND AND BROS ROORKEE (UP). ANNEXURE A2: A TRUE COPY OF THE PUBLICATION “TRANSPORT IN INDIA” SECOND REVISED EDITION 1989, PUBLISHED BY THE Government OF INDIA, LOK SABHA SECRETARIATE, NEW DELHI, PUBLISHED BY LOK SABHA SECRETARIAT AT PAGE NO.16 TO 27. ANNEXURE A3: A TRUE COPY OF CHAPTER 31 OF THE PLAN DOCUMENT WITH RESPECT TO THE FIRST FIVE YEAR PLAN PUBLISHED by the PLANNIGN COMMISSION OF INDIA PAGE NOS. 1, 13 TO 17. //TRUE COPY// P.A. TO JUDGE Rp J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 2348 OF 2008 =================== Dated this the 16th day of June, 2011 J U D G M E N T J.Chelameswar, C.J. The respondents in WP(C) No.3927/2008 preferred this appeal aggrieved by the judgment therein dated 15th September, 2008. The said judgment was rendered commonly in two writ petitions, one mentioned above and the other WP(C) No.33152/2007. We confine to the facts of WP(C) No.3927/2008 alone. The two petitioners in the above mentioned writ petition, husband and wife respectively, assert to be the absolute owners of an extent of 2 cents of property in Sy.No.390/2-2 Block No.18 of Thamarakulam Village in Mavelikkara Taluk. The above mentioned property abuts Thamarakulam-Charummood road. They propose to construct a two shop room building in the above property for conducting some business by them. It is stated that though they started the construction in the year 2000-2001, for various reasons, construction could not be completed immediately. They resumed construction activities in the year WA No.2348/2008 : 2 : 2006. The 2nd appellant issued a notice dated 4/12/2007 in substance stating that the construction work in progress was contrary to the Kerala Municipality Building Rules, 1999 allegedly made applicable to the appellant Grama Panchayat and that there is violation of the stipulation contained in Section 220(b) of the Kerala Panchayat Raj Act, 1994. Therefore, the respondents herein were directed to stop the construction. 2. Challenging the above mentioned communication dated 4/12/2007, the respondents earlier approached this Court by way of WP(C) No.2153/2008. In the said writ petition, the respondents herein raised two grounds, that the Municipality Building Rules did not apply to the construction in question and also the construction is not hit by the prohibition contained in Section 220(b) of the Kerala Panchayat Raj Act. The said writ petition was disposed of at the admission stage even without notice to the respondents on the ground that the order impugned therein was passed behind the back of the petitioners therein. The learned Judge therefore directed the respondents therein, who are the appellants herein, to consider the order impugned therein as show cause notice to the respondents herein and hear the objections of the respondents and pass an WA No.2348/2008 : 3 : appropriate order. The operative portion of the said judgment reads as follows:- 1. It appears that Ext.P1 is issued without hearing the petitioners. In the circumstances, I dispose of the writ petition itself directing the 2nd respondent to treat Ext.P1 as a show cause notice to which the petitioners and other residents of the locality have submitted Exts.P3 to P5 objections. The 2nd respondent will hear the petitioners on the issue covered by Exts.P1, P3 to P5 and pass fresh orders as early as possible, at any rate within two weeks of receiving a copy of this judgment and a copy of the writ petition. Once orders are passed, the same will be communicated to the petitioners. It is made clear that the Panchayat will verify whether any notification has been published regarding the road upon which the constructions are being made for the purpose of 220(b) in the Gazette. If no notification is published in that manner, the Panchayat will proceed as if Section 220(b) does not apply. The said judgment was rendered on 17th January, 2008. 3. On 21st January, 2008, i.e, four days after the date of the above mentioned judgment, the appellants herein passed an order, the relevant portion of which reads as follows: Your application for building permit dated 28/12/2007 has been examined. The Panchayat is ready to issue permit for construction as shown in your application and building plan. However, it is informed that building permit can be granted only if the unauthorized construction already made in your proposed site is removed. 4. It may be stated here that such an order came to be WA No.2348/2008 : 4 : passed on the basis of an application made by the respondents herein dated 28th December, 2007. In the present writ petition, it is asserted that a copy of the judgment dated 17th January, 2008 referred to earlier was placed before the appellants herein on 21/1/2008, which fact, the appellants herein dispute. Even otherwise, the dispute need not deter us in view of the fact that such a judgment was rendered without affording opportunity to the appellants herein. However, on 8th February, 2008, the appellants issued further notice calling the respondents herein for personal hearing pursuant to the directions issued in the judgment dated 17th January 2008. 5. In the meanwhile, the respondents once again approached this Court by the present WP(C) No.3927/2008 aggrieved by the proceedings dated 4/12/2007, which was the subject matter of dispute in the earlier round of litigation, which as already noticed, was directed to be treated as a show cause notice and also by Ext.P7 dated 21/1/2008 referred to earlier. The learned Judge of this Court by order dated 01/02/2008 stayed all further proceedings pursuant to the above mentioned two impugned documents. The respondents also made a representation dated WA No.2348/2008 : 5 : 12/2/2008 praying that proposed hearing pursuant to the notice dated 8/2/2008 be deferred during the pendency of the said writ petition. 6. In the background of the above mentioned facts, a learned Judge of this Court allowed WP(C) No.3927/2008 and hence the instant appeal. 7. Two objections regarding the legality of the construction made by the respondents herein are taken note of by the judgment under appeal, (1) the disputed construction is being made without complying with the requirements of the Kerala Municipality Building Rules, 1999 and (2) that the said construction is also in contravention of Section 220(b) of the Kerala Panchayat Raj Act, 1994. We do not find any conclusion recorded by the judgment under appeal regarding the first of the two question mentioned above. In so far as the second of the issues, there is a categoric finding at para 13 of the judgment that the prohibition contained under Section 220(b) is not applicable to the construction in question. The learned Judge therefore directed the appellants herein to issue necessary building permit to the respondents herein, the relevant portion of the judgment reads as follows:- WA No.2348/2008 : 6 : The result of the above discussion is that Ext.P7 to the extent it proceeds on the basis that the 3 metre distance rule under Section 220(b) applies to the constructions taken up by the petitioner in that case is liable to be quashed. Ext.P7 is accordingly quashed and the second respondent is directed to issue building permit to the petitioners without interdicting constructions within 3 metres of Thamarakulam-Charummood PWD Road on their property which abuts the said road. 8. The question whether the construction in dispute is made in compliance with the requirements of the Kerala Municipality Building Rules or not, depends upon various facts. Such a verification of the facts situation cannot be made in exercise of the jurisdiction under Article 226 of the Constitution of India. 9. Coming to the question whether the prohibition contained in Section 220(b) of the Kerala Panchayat Raj Act is applicable to the construction in question, the learned Judge opined that the construction in question abutting the Thamarakulam-Charummood Road is not a road notified as required under Section 220(b) of the Kerala Panchayat Raj Act, and therefore, the prohibition contained in the said section cannot be made applicable to the construction in dispute as the prohibition contained therein is only applicable to constructions which abut either the National Highways or a State Highway or District roads and in view of the fact that the road in WA No.2348/2008 : 7 : question is a major district road but not a district road. 10. Counsel for the appellants Sri.Johnson Gomez argued that the distinction sought to be made by the learned Judge between the major district roads and district roads is irrelevant for the purpose of Section 220(b) of the Kerala Panchayat Raj Act. Reliance placed by the learned judge on the provisions of Section 169 of the Kerala Panchayat Raj Act and the Kerala Highway Protection Act, 1999 is not warranted having regard to the scheme of the Kerala Panchayat Raj Act and more specifically the scheme of Section 220 and the purpose sought to be achieved by the prohibition contained therein. 11. The classification of the roads in the various statutes has a historic background. It appears that the said classification commenced pursuant to the conference of the Chief Engineers of all the States convened in the year 1943 by the Government of India at Nagpore. The said conference classified the roads in India into 5 categories, (1) National Highways 2) State Highways (3) Major District Roads (4) Other District Roads and (5) Village Roads. It is this classification which subsequently formed the basis for the declaration of various categories of roads in this country and various WA No.2348/2008 : 8 : enactments (see Highway Engineering by Dr.S.K.Khanna and Dr.C.E.G.Justo Fifth Edition). 12. Section 220 in so far as it is relevant for the present case reads as follows:- 220. Prohibition against constructions in or over public roads etc-- Notwithstanding anything contained in this Act no person shall,-- a) build any wall or erect any fence or other obstruction or projection or make any encroachment whatsoever, whether permanent or temporary, in or over any public road; b) construct any building or structure other than a compound wall in any land abutting any National Highway, State Highway, District roads or any other roads notified by the Village Panchayat within a distance of 3 metres from the boundary of his land abutting the road. 13. It may be noticed from the said Section that the section opens with a non-obstante clause. Secondly, it prohibits any person from making any construction within a distance of 3 metres from the boundary of the land abutting the road other than a compound wall in any land abutting either a National Highway or a State Highway or a District road or any other road notified by the Village Panchayat. As already noticed, none of the expressions either “National Highway” nor a “State Highway” or a “District road” is defined under the said Act. WA No.2348/2008 : 9 : 14. Section 169 of the Kerala Panchayat Raj Act declares that, all public roads other than those “classified by the Government as National Highway, State Highway or major district roads”, vest absolutely in the Panchayat area along with various appurtenances mentioned in the Section, the details of which are not necessary for the present purpose. 15. Section 169 in so far as it is relevant reads as follows:- 169. Vesting of Public roads in Village Panchayats:- (1) Notwithstanding anything contained in the Kerala Land Conservancy Act 1957 (8 of 1958), or in any other law for the time being in force, all public roads other than those classified by the Government as National Highway, State Highway or major district roads, bridges, culverts, ditches, dykes, fences on or beside the same protective devices and all adjacent land not being private property appertaining thereto, within the Panchayat area ie--- a) in the District Panchayats--All district roads other than major district road within the area of more than one Block Panchayat. b) in the Block Panchayats-- District roads and Village roads other than major district roads within the area of more than one Village Panchayat comprised in a Block Panchayat; c) in the Village Panchayats--other village roads, paths and lanes within the Village Panchayat area. Together with all pavements, stones and other materials and other things installed therein, all drains culverts made along side or WA No.2348/2008 : 10 : under such roads and all works, materials and things appurtaining thereto may be deemed as transferred to and vested absolutely in the Panchayat area. 16. The classification referred to under Section 169(1) is not pursuant to any provision of the Kerala Panchayat Raj Act. On the other hand, two enactments, one of the Parliament and another of the State of Kerala deal with the National Highways and State Highways. They are the National Highways Act, 1956 and the Kerala Highway Protection Act, 1999. Section 2 of the National Highway Act stipulates that each of the Highways specified in the schedule to the said Act is declared to be a National Highway. It may be noticed here that Section 2 does not purport to be a definition of a National Highway meant for the purpose of the Act. It is a declaration of the law made by the Parliament of certain state of facts, which is required to be taken note of while understanding the expression “National Highway” in any legal document in this country. 17. Coming to the Kerala Highway Protection Act, 1999, the expression “Highway” is defined under Section 2(h) as follows:- “2(h) highway means any road, way or land declared as a highway under section 3 and includes any land acquired or demarcates for construction of a highway.” WA No.2348/2008 : 11 : 18. In other words, a Highway for the purpose of the said Act means any road, way or land declared as a highway under Section 3 of the said Act. Section 3* of the said Act empowers the Government of Kerala to declare any road, way etc., to be Highway. It further authorises State Government to classify such a Highway either as a State highway or a hill highway or a major district road or any other category of road. 19. In the explanation to Section 3(1), it is stated as follows:- For the purpose of classification of highways under this section, important roads within a district or adjoining serving areas of production and market and connecting these with each other or with a State highway or a national highway shall be considered as a major district road and arterial routs of the State linking district headquarters and important cities or towns or important places of tourist interest or pilgrim centres within the State and connecting them with national highways or highways or neighbouring States shall be considered as a State highway. ----------------------------------------------------------------------------------------------- *Sec.3. Declaration of roads, ways or land as highway.- (1)The Government may, by notification in the Gazette, declare any road, way or land appurtenant thereto to be a highway and classify it as a State highway or a hill highway or a major district road or any other category of road. WA No.2348/2008 : 12 : 20. The Kerala Highway Protection Act is enacted essentially for a planned development of the Highways in the State and prevention of encroachments and “ribbon development” a defined expression under Section (2)(l) of the Act. Section 12 of the Act declares that all lands forming part of a highway vests in the Government. It may be noticed that while Section 169 of the Kerala Panchayat Raj Act, 1994 declares that all public roads other than those classified by the Government as National Highways, State Highways or major District roads shall vest in the Panchayat, by another enactment of the State of Kerala, that is, Kerala Highway protection Act, 1999, under Section 12, it is declared that all highways which expression includes both the major district roads or any other category of the roads notified in the Gazette under Section 3 of the said Act to vest in the State Government. 21. Though there is an apparent inconsistency regarding the vesting of the “district roads” in contra distinction to “major district roads”, we do not propose to go into that question for the purpose of the present case, as in our opinion, that controversy is not relevant for the issue on hand. WA No.2348/2008 : 13 : 22. The question is whether Section 220(b) prohibits any construction within 3 metres from the boundary between the district road and the property upon which the construction is proposed to be made. The expression “district road” occurring therein in our opinion should take both the major district road or other district roads notified under Section 3 of the Kerala Highway Protection Act, 1999, more particularly in view of the scheme of the Highway Protection Act, which imposes various restrictions on the construction activity abutting any highway. It would be strange logic to say that construction within a distance of 3 meters from the boundary of a district road is prohibited but not in the case of a major district road. We therefore do not agree with the conclusion recorded by the judgment under appeal. To attract the prohibition contained under Section 220(b) of the Kerala Panchayat Raj Act, a notification contemplated under Section 220(b) is required. On the other hand, we are of the opinion that if the road in question that is Thamarakulam-Charummood road is notified to be a highway for the purpose of the Kerala Highway Act, irrespective of the fact whether it is declared to be a major district road or not, the prohibition contained under Section 220(b) of the Kerala Panchayat Raj Act is WA No.2348/2008 : 14 : attracted. 23. For the above mentioned reasons, we are of the opinion that the judgment under appeal in so far as it declares to the contra is unsustainable and we set aside the same. 24. In the background of the above mentioned facts and the legal position, we are of the opinion that the appeal is required to be disposed of directing the appellants herein to proceed with the enquiry pursuant to the notice dated 8/2/2008, which enquiry is kept in abeyance in view of the pendency of the instant litigation, after affording an opportunity to the respondents, to take an appropriate decision in accordance with law. Writ appeal is accordingly disposed of. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp