IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 3567 of 2009(Y) ------------------------- PETITIONER(S): --------------- 1. N. MUJEEB RAHMAN, S/O. VEERAN, NEELANGODAN (H), NENMINI VILLAGE, TACHIGANADAM DESOM, MALAPPURAM DIST. 2. RAJEENA MUJEEB RAHMAN, W/O. MUJEEB RAHMAN, NEELANGODAN (H), NENMINI VILLAGE, TACHINGANADAM DESOM, MALAPPURAM DIST. BY ADV. SRI.R.SUDHEESH KUMAR SRI.SUNIL KUMAR A.G RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KEEZHATTUR GRAMA PANCHAYATH, REP. BY ITS SECRETARY, KEEZHATTUR GRAMA PANCHAYAT 3. THE SECRETARY, KEEZHATTUR GRMA PANCHAYAT, MALAPPURAM DIST. 4. THE VILLAGE OFFICER, VILLAGE OFFICE, NENMINI. R1, R4 BY GOVT. PLEADER SRI.K.R.DEEPA R2, R3 BY ADV. SRI.R.RAJESH KORMATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.3567/09 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE ORDER DATED 3.11.08 OF THE 2ND RESPONDENT. EXT.P2: TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 22.11.2008. EXT.P3: TRUE COPY OF THE AFFIDAVIT DATED 22.11.2008. EXT.P4: TRUE COPY OF THE CERTIFICATE DATED 21.11.2008. EXT.P5: TRUE COPY OF THE CERTIFICATE DATED 1.11.2008. EXT.P6: TRUE COPY OF THE ORDER DATED 9.1.2009. RESPONDENT'S EXHIBITS: EXT.R2(a): TRUE COPY OF THE APPLICATION DATED 10.7.07 SUBMITTED BY THE PETITIONERS BEFORE THE SECOND RESPONDENT PANCHAYAT. EXT.R2(b): TRUE COPY OF THE REPORT DATED 10.11.08 SUBMITTED BY THE OVERSEER OF THE LOCAL SELF GOVERNMENT DEPARTMENT OF THE SECOND RESPONDENT PANCHAYAT. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.3567 OF 2009 ------------------------------------------- Dated this the 1st day of October, 2009 JUDGMENT The petitioners constructed a building. They applied for due numbering. That was rejected by the panchayat on the ground that sufficient set back is not available from the road margin. The panchayat, in refusing the request for building permit, took the view apparently on the premise that in terms of the Kerala Municipality Building Rules, 1999, the petitioners could have saved the building by a procedure of surrendering some portion of the land. But when the panchayat reached this Court, with the counter affidavit filed, assured for themselves that KMBR does not apply and only section 220(b) of the Panchayat Raj Act, 1994 applies. Incidentally, there is a certificate on record (Ext.P5), wherein, the Village Officer says that on legal enquiry, he noticed that the petitioners have surrendered some portion of their land while the pathway in question (also called ooduvazhi) was widened using an M.P.fund. If the petitioners had commenced the construction before any WPC.3567/09 Page numbers such widening and if they had actually made land available for the purpose of widening, the pragmatic decision making process should lead to a re-conciliation of the dispute. Whatever be the impact of Section 220(b), or any other modality for the petitioners to ensure that their construction is within the limits of law, onething is certain; the decision of the panchayat was not after duly adverting to and considering all relevant facts and factors. For this short reason, without expressing anything on merits, this writ petition is allowed quashing Ext.P6 and directing that the petitioners' application will be taken up, considered and orders issued de novo in accordance with law . Let this be done within a period of 45 days from the date of receipt of a copy of this judgment. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.3/10.