IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 OP.No. 25496 of 1999(I) ------------------------------ PETITIONER(S): ------------------ S. SUDHAKUMARI, SADASIVA SADANAM, KATTAKKADA P.O., THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.N.NANDAKUMARA MENON (SR.) RESPONDENT(S): -------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATS, OFFICE OF THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 3. KATTAKKADA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KATTAKKADA GRAMA PANCHAYAT, KATTAKKADA P.O., THIRUVANANTHAPURAM DISTRICT PIN 695 572. 4. THE PRESIDENT, KATTAKKADA GRAMA PANCHAYAT, OFFICE OF THE KATTAKKADA GRAMA PANCHAYAT, KATTAKKADA P.O., THIRUVANANTHAPURAM DISTRICT. PIN 695 572. GOVERNMENT PLEADER SMT. K.R. DEEPA FOR R1.R2 SRI.PIRAPPANCODE V.S.SUDHIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.SREEDHARAN NAIR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 25496 of 1999 ORDERS ON C.M.P.NOS. 42945 OF 1999 & 29388 OF 2000 CLOSED 18.11.2008 SD/ S. SIRI JAGAN, JUDGE. EXT.P1: COPY OF THE APPLICATION FOR NUMBERING THE BUILDING DTD 24.3.1997 SUBMITTED BY THE PETITIONER BEFORE THE R3. EXT.P1(a): COPY OF THE ENGLISH TRANSLATION OF EXT.P1. EXT.P2: COPY OF THE ORDER NO.A2-10/97-98 DT. 22.7.1997 ISSUED BY THE SECRETARY OF R3. EXT.P2(a): COPY OF ENGLLISH TRANSLATION OF EXT. P2. EXT.P3; COPY OF THE APPEAL DTD 5.8.1997 FILED BY THE PETITIONER BEFORE THE PANCHAYAT. EXT.P3(a): COPY OF ENGLISH TRANSLATION OF EXT.P3. EXT.P4; COPY OF THE CERTIFICATE NO.842/98 DT. 3.7.98 ISSUED BY THE VILLAGE OFFICER, KULATHUMMEL. EXT.P4(a): COPY OF THE ENGLISH TRANSLATION OF EXT.P4. EXT.P5: COPY OF THE ORDER NO.C-3-16872/98 DT. 3.8.98 OF R3 FORWARDED TO R2. EXT.P5(a): COPY OF ENGLISH TRANSLATION OF EXT.P5. EXT.P6: COPY OF RECEIPT NO.46039/85 DTD 17.10.98 ISSUED BY THE R3. EXT.P7: COPY OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF THE PANCHAYAT DT. 5.2.99. EXT.P7(a): COPY OF TRANSLATION OF EXT.P7. EXT.P8: COPY OF THE ACKNOWLEDGEMENT CARD T. 6.2.99 ISSUED BY THE POSTAL DEPT. EXT.P9: COPY OF THE REPRESENTATION DT. 10.3.99 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER FOR LOCAL ADMINISTRATION. OP.No. 25496 of 1999 EXT.P10: COPY OF THE G.O.(ORDINARY) 2514/99/LAD DT. 7.8.99 BY R1. EXT.P10(a): COPY OF ENGLISH TRANSLATION OF EXT.P10. RESPONDENT'S EXHIBITS EXT.R3(a): COPY OF THE RESOLUTION NO.VI DATED 28.10.1998. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.25496 OF 1999 ---------------------------------------- Dated this the 18th day of November, 2008 JUDGMENT The petitioner constructed a building in her property within the jurisdiction of the 3rd respondent – Panchayat. Originally, the standing committee for taxation refused to allot building number assessed the petitioner's building to property tax. Later on, the standing committee themselves considered the matter again and decided to number the building and to assess tax on the same. It has been done also. In the meanwhile, an appeal against the first order of the standing committee was pending before the Panchayat. In view of the pendency of that appeal, the Panchayat took the view that the standing committee could not have taken a fresh decision while the appeal was pending and accordingly, rescinded the resolution of the standing committee to number the building and assess the building tax. Thereafter, they referred the matter to the Government for a decision. By Ext.P10 order, the Government held that the standing committee's decision is not sustainable and accordingly, O.P.No.25496/99 2 rescinded the resolution of the standing committee upholding the stand of the panchayat. The petitioner is challenging Ext.P10 order seeking the following reliefs: “i) call for the records leading to Exhibit P10 order and quash the same by issue a writ of certiorari or other appropriate writ, order or direction. ii) issue a writ of mandamus or other appropriate writ, order or direction restraining the respondents from interfering with the petitioner's enjoyment and use of the building”. 2. With the help of a counter affidavit, the Panchayat stoutly opposes the prayers in the original petition. 3. I have considered the rival contentions in detail. 4. The reason cited against the decision of the standing committee is that the building has been constructed in violation with Section 220 (b) of the Kerala Panchayat Raj Act, which requires that any construction by the side of a road shall be three metres away from the side of the road. At the relevant time, for becoming Section 220(b) applicable to a building, there should be a notification by the Panchayat in respect of the road. The Panchayat does not state in their counter affidavit as to whether such a notification has been issued or not. Even otherwise, the petitioner has obtained a O.P.No.25496/99 3 certificate from the Village Officer to the effect that the building in question has been constructed three metres away from the edge of the road. That certificate is Ext.P4 dated, 3.7.1998. Even, according to the Panchayat, the building is three metres away from the edge of the road at one place, 2.80 metres at another place and 2.90 metres at yet another place. The building has been already numbered and tax has been assessed. At least the standing committee is of the opinion that the construction is proper. On a trivial objection that too of only ' 20 c.m.' and ' 10 c.m.' difference, I do not think that the dispute should be dragged any further. Accordingly, Ext.P10 order is quashed and it is declared that the numbering of the petitioner's building and assessment of tax are proper. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.25496/99 4