IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WP(C).No. 35179 of 2004(K) --------------------------------------- PETITIONER(S): ---------------------- K.P. ABDUL NAZAR S/O.P.K. MAMMU, AGED 39, ALAYI MAHAL, NEAR MANGADAVU L.P.SCHOOL, AROLI. P.O., PAPPNINISSERI, KANNUR. BY ADV. SRI.M.K.CHANDRA MOHANDAS, SRI.SABU S.KALLARAMOOLA. RESPONDENT(S): ------------------------- 1. THE PAPPINISSERI GRAMA PANCHAYAT (SPECIAL GRADE), REPRESENTED BY ITS SECRETARY, PAPPINISSERI P.O., KANNUR. 2. THE DEPUTY DIRECTOR OF PANCHAYT, KANNUR. R1 BY ADV. SRI.P.M.PAREETH, SMT.M.SONA. R2 BY GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35179 of 2004(K) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PERMIT DATED 09/12/1998 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P2: COPY OF THE SKETCH OF THE COMPOUND WALL APPROVED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE ORDER NO.A2.762/03 DATED 02/11/2004 ISSUED BY THE 1ST RESPONDENT. EXT.P4: COPY OF THE ORDER B1-8957/03/K.DIS DATED 10/09/2004 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE RELEVANT PAGE OF THE ROAD REGISTER MAINTAINED BY THE PAPPINISSERI GRAMA PANCHAYAT. EXT.R1(b): COPY OF THE NOTICE DATED 06/11/2003 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. EXT.R1(c): COPY OF THE JUDGMENT DATED 19/05/2004 IN WP(C) NO. 34217/2003 OF THIS HONOURABLE COURT. //TRUE COPY// P.A. TO JUDGE rs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 35179 of 2004 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of November, 2010 J U D G M E N T The petitioner obtained Ext.P1 permit for construction of a compound wall to his property on 09.12.1998. Pursuant to the permit, he completed the construction of the compound wall in 1999. He was for sometime abroad, thereafter. When he returned, he found that, a notice issued by the first respondent Panchayat was affixed on his building directing him to demolish the compound wall constructed by him. This was allegedly on the basis of some complaints filed by the residents of the locality in the year 2003. The petitioner filed an appeal against that order before the Deputy Director of Panchayats, Kannur. That was dismissed by Ext.P3 order holding that the petitioner has constructed the compound wall encroaching into a public road belonging to the Panchayat and therefore the direction to demolish the building is valid and proper. W.P.(C) No. 35179 of 2004 -2- Challenging that order, the petitioner has filed this writ petition seeking the following reliefs: “1. issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibits P3 and P4 and quash the same as illegal. 2. Issue a writ of mandamus or other appropriate writ order or direction directing the 1st respondent not to demolish the compound wall of the petitioner situated in Re-Survey No.60/1A of Pappinisseri Village.” 2. The Panchayat has filed a counter affidavit, wherein the Panchayat has contended that, the road is having a width of 4 mtrs. Ext.R1 (a) is the Road Register maintained by the Panchayat wherein the width of the road is shown as 4 mtrs. According to the Panchayat, as per Ext.P2 Site Plan also the width of the road is 4 mtrs. According to the Panchayat, even at the time of construction itself the Ward Member had objected to the construction of the compound wall and the petitioner was directed to leave enough space for the road and drainage. The Panchayat would allege that the petitioner has constructed the compound wall in violation of Exts.P1 & P2. It is also alleged that, the petitioner has not submitted any W.P.(C) No. 35179 of 2004 -3- completion report. The contention is that, when the Panchayat has noticed that the construction of the compound wall is encroaching into the panchayat road, the panchayat has every right to remove the encroachment, whenever it is brought to its notice. 3. I have considered the rival contentions in detail. 4. It is not disputed before me that, the order of demolition of the wall is on the ground that, the construction of the wall is encroaching into the panchayat road. The petitioner would contend that, it is not he who has encroached into the road but the resident on the opposite side. He would submit that, in Ext.P3 that fact has been specifically noted. But I find that, the allegation is that the petitioner encroached by one metre (1 mtr.) into the public road. In Ext.P3, the finding is that, the resident opposite the petitioner encroached into the road by 50 cms. If that be so, there is no specific finding in Ext.P3 that it is the resident opposite the petitioner's property who had encroached into the public road by 1 meter. I am of opinion W.P.(C) No. 35179 of 2004 -4- that, this court cannot decide as to whether there is any encroachment and if there is encroachment who has encroached into the road and by how much. It is a matter which has to be dealt with exclusively by the civil court where the parties can adduce evidence in support of their contentions. Therefore, the petitioner should be relegated to the remedy by way of a civil suit to resolve this dispute. But the petitioner points out that, for filing a suit, under Section 249 of the Kerala Panchayat Raj Act, one month's notice in writing is mandatory. I am of opinion that, insofar as this writ petition has been pending before this court for the last six years the writ petition itself can be treated as a notice to the panchayath under Section 249. Therefore without prejudice to the right of the petitioner to file a suit against the panchayat for resolving the dispute involved in this writ petition, this writ petition is dismissed. However to enable the petitioner to file a suit and seek interim orders the interim order passed in this writ petition would continue to be in force for two more weeks from today. I make it W.P.(C) No. 35179 of 2004 -5- abundantly clear that, the civil court where the suit is filed would treat the writ petition itself as a notice under Section 249 and the suit shall not be dismissed on the ground that Section 249 of the Kerala Panchayat Raj Act has not been complied with. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE shg/