IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 WP(C).No. 13413 of 2008(V) -------------------------------------- PETITIONER: ------------------ SANKARA NARAYANAN NAIR, AGED 66, S/O.DAKSHAYANI AMMA, MANAMMEL AAKKE VEETIL, KAITHARAM, KOTTUVALLY. BY ADV. SRI.B.RAMACHANDRAN RESPONDENTS: ----------------------- 1. THE SECRETARY, KOTTUVALLY GRAMA PANCHAYATH, VALLUVALLY P.O., ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA. ADV. SRI.PEEYUS A.KOTTAM FOR R1 BY GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.13413/2008 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE TAX RECEIPT DT. 16.2.2008 ISSUED TO THE PETITIONER BY SIT RESPONDENT. EXT.P2:- COPY OF THE SKETCH OF THE PROPERTY OF THE PETITIONER DT. NIL. EXT.P3:- COPY OF THE AFFIDAVIT FILED BY THE PETITIONER AND HIS WIFE. EXT.P4:- COPY OF THE BUILDING PERMIT DT. 19.3.2008 ISSUED TO THE PETITION /TRUE COPY/ P.S. TO JUDGE tss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = = W.P.(C) No. 13413 OF 2008 V = = = = = = = = = = = = = = = = = Dated this the 23rd day of July 2008 J U D G M E N T Petitioners claim to be owners of 60 cents of land in R.S. Nos. 186/1A6-17 and IA 78 of Kottuvally Village which they have acquired by a settlement deed bearing No. 2587/92 of Sub Registrar's Office, Parur. According to the petitioner, on the three sides of the property there are Panchayat roads. In order to construct a concrete fencing, the petitioners applied for a permit from the Panchayat. 2. Thereupon the Panchayat required the petitioners to submit a written consent, agreeing to demolish the construction they wish to make, in case the land becomes necessary on account of road widening purposes. Petitioners submit that as directed by the Panchayat, they submitted Ext. P3 consent, undertaking to demolish the construction, should an occasion arise in future. It is stated that thereafter, the Panchayat issued Ext. P4 building permit which W.P.(C) No. 13413 OF 2008 -2- inter alia required them to leave a 2 feet clearance from the boundary of the property. It is aggrieved by this condition the writ petition has been filed. 3. It is the contention of the petitioners that though the construction is even otherwise required to be made in terms of the Kerala Municipality Building Rules, there is no such prescription in the rules as is now incorporated in Ext. P4. It is also contended that all the neighbouring property owners have been permitted by the Panchayat to put up their fencing on the boundary of their property and that in so far as the petitioners alone are concerned, this condition has been incorporated. Petitioners reiterate Ext. P3 undertaking and submit that in case any contingency arises in future requiring demolition of the fencing for road widening purposes they are willing to do that. 4. Though notice has been served on the Panchayat, there is no counter affidavit filed. 5. On the materials that are placed, I am inclined to agree with the petitioners. They have in very clear terms undertaken before the Panchayat and that undertaking is also reiterated in this Court, that W.P.(C) No. 13413 OF 2008 -3- should an occasion arise in future, for road widening purposes, they are willing to demolish the construction if so directed by the Panchayat. Once such a consent in clear terms has been given by the petitioners I see no reason why they should not be permitted to construct the concrete fencing as prayed for by them. This is all the more so, when the neighbours are permitted to put up their fencing, on the boundary of their respective properties. 6. Accordingly, clause (3) of Ext. P4 requiring the petitioners to leave 2 feet clearance from the boundary of their property for putting up the compound wall, will stand set aside and the writ petition is disposed of accordingly. ANTONY DOMINIC JUDGE jan/-