IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 WP(C).No. 9672 of 2008(B) --------------------------------- PETITIONER: ----------------- K.B.AJOY KUMAR,"SREEVALSAM", MOOZHIKKARA DESOM, KODIYERI AMSOM THALASSERY TALUK, KANNUR DISTRICT, REPRESENTED HEREIN BY HIS POWER OF ATTORNEY HOLDER V.S.ANIL KUMAR, MARUTHAM, KANNAPURAM, P.O.CHERUKUNNU, KANNUR DISTRICT BY ADV. SRI.M.AJAY RESPONDENTS: --------------------- 1. THE PANNIYANNUR GRAMA PANCHAYAT, P.O. PANNIYANNUR, KANNUR DISTRICT 2. THE SECRETARY, PANNIYANNUR GRAMA PANCHAYAT, P.O. PANNIYANNUR, KANNUR DISTRICT 3. THE STATE OF KERALA,(REPRESENTED BY ITS SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, THE SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.P.V.SURENDRANATH FOR R1 & 2 GOVT. PLEADER SRI. K.V. MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 : A TRUE COPY OF THE LOCATION SKETCH IN RESPECT OF THE PETITIONER'S PROPERTY ISSUED BY THE VILLAGE OFFICER PANNIYANNUR. EXHIBIT P2 : A TRUE COPY OF THE COMMUNICATION NO. A1/964/07 DATED 10.9.07 SENT BY THE SECOND RESPONDENT TO THE PETITIONER. EXHIBIT P3 : A TRUE COPY OF THE REPLY DATED 20.9.2007 SENT BY THE PETIOTIONER TO THE SECOND RESPONDENT. EXHIBIT P4 : A TRUE COPY OF THE RESPRESENTATION SENT BY THE PETITIONER TO THE SECOND RESPONDENT. EXHIBIT P5 : A TRUE COPY OF THE COMMUNICATION NO.A/2377/2007 DATED 22.1.08 SENT BY THE SECOND RESPONDENT TO THE PETITIONER. EXHIBIT P6 : A TRUE COPY OF THE MINUTES OF MEETING DATED 15.7.2005 FURNISHED TO THE PETITIONER BY THE SECOND RESPONDENT UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P7 : A TRUE COPY OF THE RESPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE SEND RESPONDENT DATED 23.2.2008. EXHIBIT P8 : A TRUE COPY OF THE PHOTOGRAPHS SHOWING KOROLE-THIYYANKANDI ROAD ON THE EASTERN SIDE OF THE PETITIONER'S PROPERTY. EXHIBIT P9 : A TRUE COPY OF THE CIRCULAR NO. 24136(1) R.A. DATED 25.7.07 ISSUED BY THE THIRD RESPONDENT. EXHIBIT P10 : A TRUE COPY OF THE PHOTOGRAPHS TO SHOW THE CONSTRUCTION THAT WAS COMPLETED ON 10.9.07. EXHIBIT P11 : A TRUE COPY OF THE CIRCULAR NO. 24136/RA1/07 DATED 20.6.07 RESPONDENT'S EXHIBITS: EXHIBIT R1(a) : A TRUE COPY OF THE SITE PLAN SUBMITTED BY THE PETITIONER BEFORE THE PANCHAYATH. EXHIBIT R1(b) : A TRUE COPY OF THE COMPLAINT DATED 16.6.2007 SIGNED BY THE SEVEN LOCAL RESIDENT/NEIGHBOURS OF THE PETITIONER. EXHIBIT R1(c) : A TRUE COPY OF THE PETITIONER'S APPLICATION FOR BUILDING PERMIT AS A5 964/2007 DATED 9.7.2007. EXHIBIT R1(d) : A TRUE COPY OF THE CIRCULAR NO. 15018/c1/9 DATED 16.4.97. EXHIBIT R1(e) : A TRUE COPY OF THE CIRCULAR NO. 58577/c1/95 DATED 6.1.1996. /TRUE COPY/ P.A. TO JUDGE VKM ANTONY DOMINIC, J ---------------------------------- W.P.(C) No. 9672 OF 2008 -------------------------------------- Dated this the 10th day of July, 2008 J U D G M E N T The dispute that arises for consideration is whether Ext. P2 Stop memo is invalid in the context of section 220(b) of the Kerala Panchayat Raj Act, 1994. 2. Facts of the case are that the petitioner started construction of a residential building within the area of 1st respondent Panchayat. According to him it was with effect from 6.6.2007, the Kerala Municipality Building Rules were implemented in the area of the 1st respondent Panchayat. As he had already started construction of the building prior to the implementation of the said rule, the petitioner submitted Ext. R1(c)application for building permit. 3. On receipt of the application for the building permit and referring to the same, 1st respondent issued Ext. P2 Stop memo on 10.9.07. The allegation contained in Ext. P2 Stop memo is that the construction of the building under taken by the petitioner was without leaving the clearance as prescribed in Section 220(b) of the Kerala Panchayat Raj Act. On receipt of Ext. P2 Stop memo, W.P.(C) No. 9672/2008 2 petitioner submits that he filed Ext. P4, but however he did not receive any reply. Thereafter he filed an application invoking the provisions of the Right to Information Act with a query as to whether the Panchayat had issued any notification, notifying any road within the 1st respondent Panchayat, in terms of Section 220 (b). To the query so raised, petitioner received Ext. P5 reply informing that the Panchayat had not issued any notification and on receipt of this reply, he filed Ext. P7 representation requesting for revocation of Ext. P2 Stop memo. Even to those representations there was no reply and it was therefore that this Writ Petition was filed challenging Ext. P2. 4. The only contention that is raised before me is that in the absence of a notification issued under Section 220(b), the petitioner has no obligation to comply with the clearance specified in the said Section and therefore Ext. P2 is illegal. On the other hand, the contention that is raised by the counsel for the respondent Panchayat is that Section 220(b) was substituted by Act 13 of 1999 with effect from 24.3.1999. According to him, before the substitution of Section 220(b), all that was needed was that the Panchayat had to take a decision that in respect of any Panchayat W.P.(C) No. 9672/2008 3 road, the minimum clearance of 3 meters from the boundary should be left for making construction. In other words, what is contended before me is that prior to 24.3.1999 there was no requirement for issuance of any notification. It is further contended that since the Panchayat had already taken such a decision, irrespective of the change that is brought about in Section 220(b) the said decision is still in force and hence the petitioner has to comply with the same. 5. Thus it is evident that the Panchayat has not issued any notification as required under Section 220(b) of the Kerala Panchayat Raj Act and the question is whether the decisions taken by the Panchayat before 24.3.99 is still in force, despite the amendment to the Act. 6. In view of the amendment to Section 220(b), if the Panchayat wants to insist that the construction of any building cannot be undertaken within a distance of 3 meters from the Panchayat roads, there should be a notification issued by the Panchayat. If the legislature intended to save the decisions taken by the Panchayat prior to 24.3.99, the legislature would have certainly provided a provision saving the validity of such decisions. A reading of the Act shows that there is no such saving provision W.P.(C) No. 9672/2008 4 incorporated in Section 220(b). If that be so, even if a decision was taken, the said decision would not remain valid beyond 24.3.99, when Section 220(b) has amended. 7. Counsel for the petitioner referred to the provisions of the Kerala Panchayat Raj Act (Manner of Publication of Notification or Notice) Rules, 1996. Rule 3 of the said Rules provide that notification issued under the provisions of the Act shall be published in the Government Gazette. The Rule also contains a proviso enabling the Government to direct that the notification shall, instead of being published in the Gazette, be published in any other manner specified by them. Section 220(b) read in the context of the Rule mentioned above, mandates that the Panchayat should issue a notification as provided therein and such notification, in the absence of the direction of the Government to the contrary, should be published in the Government Gazette. 8. Since in this case, it is the admitted case that no notification has been issued by the Panchayat, I hold that Ext. P2 is illegal and is liable to be quashed. 9. Though the position prior to 24.3.99 did not arise for consideration, still in the judgment of this court reported in W.P.(C) No. 9672/2008 5 Thomas Paul and another v. State of Kerala and others in ILR 2006(4) Kerala 690, this court has taken the view that to implement section 220(b), a notification as provided in the section has to be issued. For the reasons stated above, Ext. P2 is quashed and the Writ Petition is disposed of as above. ANTONY DOMINIC, JUDGE vkm