Santhosh K vs Vamanapuram Grama Panchayath
2021 Latest Caselaw 20614 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE N.NAGARESH
     TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                       WP(C) NO. 17659 OF 2021
PETITIONER:

          SANTHOSH K,
          AGED 39 YEARS,
          S/O.KRISHNA PILLAI,
          SANTHOSH BHAVAN, ETTIMOOD, KARIMKUTTIKKARA P.O.,
          VAMANAPURAM, THIRUVANANTHAPURAM DISTRICT,
          REPRESENTED THROUGH POWER OF ATTORNEY HOLDER,
          SMT.SWARNAMMA, AGED 54 YEARS,
          W/O.KRISHNA PILLAI, SANTHOSH BHAVAN,
          ETTIMOOD, KARIMKUTTIKKARA P.O.,
          VAMANAPURAM, THIRUVANANTHAPURAM DISTRICT.

          BY ADV R.K.MURALEEDHARAN


RESPONDENTS:

    1     VAMANAPURAM GRAMA PANCHAYATH,
          REP. BY ITS SECRETARY,
          VAMANAPURAM,
          THIRUVANANTHAPURAM DISTRICT-695606.
    2     THE SECRETARY,
          VAMANAPURAM GRAMA PANCHAYATH,
          VAMANAPURAM,
          THIRUVANANTHAPURAM DISTRICT-695606.
    3     THE ASSISTANT ENGINEER,
          LSGD, VAMANAPURAM GRAMA PANCHAYATH,
          VAMANAPURAM,
          THIRUVANANTHAPURAM DISTRICT-695606.
    4     THE TAHSILDAR,
          NEDUMAGAD TALUK,
          THIRUVANANTHAPURAM DISTRICT-695541.
    5     THE VILLAGE OFFICER,
          VAMANAPURAM,
          THIRUVANANTHAPURAM DISTRICT-695606.
    6     MANJUSHA,
          W/O.MURALIDHARAN PILLAI,
          MULAVANA VEEDU, ETTIMOODU,
          KARIMKUTTIKKARA P.O.,
          VAMANAPURAM,
          THIRUVANANTHAPURAM DISTRICT-695606.
 WP(C) NO. 17659/2021
                                   2



              BY ADVS.
              SRI.S.K.ADHITHYAN (APPEARS FOR R2)
              R6 BY SRI.J.JAYAKUMAR
              SRI.SYAMANTHAK B.S., GOVERNMENT PLEADER


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 17659/2021
                                            3




                                  JUDGMENT

Dated this the 5th day of October, 2021

The writ petitioner has approached this Court

seeking to quash Exts.P4, P7 and P9 communications of the

2nd respondent and to direct the 1st and 2nd respondent to

permit the petitioner to complete the construction of the

residential cum commercial building strictly in compliance with

Ext.P1 Building Permit.

2. The petitioner states that he is the absolute owner

of 20 Cents of land comprised in Re-Survey No.884/1/1 and in

Re-Survey No.884/1/2 in Vamanapuram Village of

Nedumangad Takuk in Thiruvananthapuram District. The

petitioner wanted to construct a building for residential cum

commercial purpose. An application for Building Permit was WP(C) NO. 17659/2021

submitted. The 1st respondent-Panchayat granted Ext.P1

Building Permit for construction of a building with 83.39

Square Meters of area.

3. The petitioner states that his property is facing a

Panchayat road on northern side and there is a foot path on

the western side beyond which Shreya LP School is situated.

According to the petitioner, the width of the footpath varies and

is having 1.5 metres in the beginning from the road reduced to

less than 1 metre towards the end. The petitioner set apart

nearly 2 metres from the foot path for construction as per the

approved plan. The Ext.P2 plan was approved by the

Panchayat and Ext.P1 permit was issued.

4. Subsequently certain persons using the pathway on

the western side of the petitioner's compound submitted

complaints and consequently the Secretary to the Panchayat

issued Ext.P4 Stop Memo. In Ext.P4 it was stated that the

LSGD Engineer made a site inspection and he could not

locate the exact boundaries of the pathway. Ext.P4 further WP(C) NO. 17659/2021

stated that the boundaries of the pathway can be ascertained

only after getting a Surveyor's sketch on that premises. The

petitioner was required to stop his work and produced the

survey sketch urgently.

5. The petitioner states that in response to Ext.P4 the

petitioner produced a survey sketch. Nevertheless the

petitioner was issued with Ext.P7 letter of the Secretary stating

that in the Re-Survey sketch, the boundary locations are not

marked. There is a survey stone in the area. The local

residents raised dispute in respect of the location of the said

survey stone. Therefore, the Taluk Surveyor has to decide the

boundaries of the pathway. Any further steps can be taken

only after the Taluk Surveyor determines the boundary. The

Secretary to the Panchayat thereafter sent Ext.P9

communication to the Tahasildar requiring that steps may be

taken to depute Taluk Surveyor to decide the boundaries of the

property in question.

WP(C) NO. 17659/2021

6. The petitioner would contend that as per Rule 5 of

Chapter II of Kerala Panchayat Building Rules, a Building

Permit is necessary for construction and the Secretary can

suspend an issued Building Permit only invoking Rule 16. Non

of the conditions stipulated in Rule 16 satisfied in the case of

the petitioner justifying the direction of the Panchayat

Authorities to stop the construction on the basis of an

approved Building Permit.

7. The learned counsel for the petitioner submitted

that the petitioner has not in any manner violated the Building

Permit conditions and the petitioner cannot be stopped from

the work undertaken by him.

8. The counsel for the petitioner further submitted that

the petitioner produced the survey sketch and the 3 rd

respondent reported as per Ext.P6 that there is no footpath or

way shown in the Asset Register of the Panchayat. Since the

alleged pathway is not in the Asset Register of the Panchayat,

the Panchayat Authorities cannot indulge in resolving the WP(C) NO. 17659/2021

dispute. The dispute as to the said pathway would be a pure

civil dispute, resolution of which can be done only through Civil

Courts. The Panchayat Authorities cannot pressurize the

petitioner to stop the construction undertaken by him, to settle

a dispute between private parties.

9. The 2nd respondent filed a counter affidavit in the

writ petition. The 2nd respondent stated that after the

commencement of the construction by the petitioner, the local

residents filed a mass complaint alleging that the petitioner

has been encroaching over the pathway which has been used

by them for a long period. Pursuant to the said complaint the

3rd respondent conducted a site inspection. The petitioner was

thereupon issued with Ext.P4 Stop Memo. Though the

petitioner produced survey sketch, the boundaries of the

pathway could not be detected therefrom. A survey stone was

found on the western side of the property abutting the

adjoining pathway. However the local residents, who used the

pathway, raised dispute regarding the existing boundary. They WP(C) NO. 17659/2021

demanded that the boundary be fixed by the Taluk Surveyor.

10. The learned counsel for the 2nd respondent

submitted that the 1st respondent decided to take measures to

get the property measured by the Taluk Surveyor in order to

resolve a issue having public importance. It is the petitioner

himself who prolonged the issue. If the petitioner cooperates

with the survey proceeding to be initiated by the Taluk

Surveyor, the issue can be resolved amicably. The learned

counsel for the 2nd respondent further pointed out that Ext.P2

site plan would show the existence of 1.5 metres pathway

along the boundaries of the petitioner.

11. The 6th respondent entered appearance and

contested the writ petition. The 6 th respondent stated that the

petitioner is not entitled to any relief in this writ petition. The

attempt of the petitioner is to encroach upon a pathway, which

has been used by the local residents for decades. The

petitioner is trying to encroach upon the pathway so as to

reduce the width of the pathway. The learned counsel for the WP(C) NO. 17659/2021

6th respondent submitted that the petitioner can claim his right

only over 20 Cents of property owned by him as per his title

document. A simple survey and measurement of the property

of the petitioner can resolve the issue. The petitioner is not

coming forward to resolve the issue with the intention to

encroach upon the pathway. As the pathway in question is

used by the local residents for long, the Panchayat was

justified in interfering with the matter and requiring the

petitioner to stop the work. The learned counsel for the 6 th

respondent further submitted that this is a public pathway

though it is not entered in the Asset Register of the Panchayat.

As the petitioner is likely to encroach upon the public pathway

used by the 6th respondent and others for long, the Ext.P4

Stop Memo is justified and this Court should not interfere with

the Ext.P4 Stop Memo.

12. Heard the learned counsel for the petitioner, the

learned counsel appearing for respondents 1 and 2, the

learned Government Pleader representing respondents 3 to 5 WP(C) NO. 17659/2021

and the learned counsel for the 6th respondent.

13. There is no dispute that the petitioner is owning a

land over which the petitioner proposes to construct the

building in question. Ext.P1 Building Permit was issued to the

petitioner for construction of 83.39 Square Metres of

mercantile/commercial new construction, by the Panchayat.

The Panchayat Authorities have also approved Ext.P2 site

plan. In Ext.P2 site plan, the petitioner has marked 1.5 metre

footpath on the western side of his property. The petitioner

would submit that in some places along the pathway the width

of the pathway is less. The petitioner is not encroaching upon

the public pathway, as the petitioner has clearly earmarked the

1.5 meter footpath in the site plan. The petitioner cannot be

blamed of suppressing existence of pathway, as the same is

marked in the approved plan.

14. Now the question is whether the petitioner has

encroached upon the pathway while constructing the building.

The pathway does not find a place in the Asset Register of the WP(C) NO. 17659/2021

Panchayat. In fact the respondents 1 to 3 have no case that

the said pathway vests with the Panchayat. In such

circumstances, the dispute regarding the reduction of the width

of the pathway will acquire the character of a private dispute

between the users of the pathway and the adjacent land

owners. In such circumstances, it is a moot question how

Panchayat Authorities can interfere and stop the construction

activities undertaken by the petitioner on the basis of a

Building Permit.

15. The Kerala Panchayat Building Rules, 2019, makes

provision for cancellation of Building Permit. Rule 16 of the

Kerala Panchayat Building Rules, 2019 provides for the

circumstances under which a Building Permit issued can be

cancelled. The issue arising in this case, does not fall in any

of such eventualities mentioned in Rule 16. In such

circumstances, this Court finds that Ext.P4 Stop Memo issued

by the respondent 1 to 3 cannot stand the scrutiny of law. WP(C) NO. 17659/2021

In such circumstances, the writ petition is allowed.

Exts.P4 and P7 are set aside. It is made clear that any of the

persons feeling aggrieved by the reduction of width of the

alleged pathway will be free to approach the competent Civil

Court or any other appropriate forum for redressal of their

grievances. It is made clear that the petitioner should adhere

to Ext.P1 Building Permit and Ext.P2 Plan, while carrying out

the construction.

Sd/-

N. NAGARESH JUDGE SR WP(C) NO. 17659/2021

APPENDIX OF WP(C) 17659/2021

PETITIONER'S EXHIBITS:

Exhibit P1 A TRUE COPY OF THE BUILDING PERMIT DATED 29.03.2021.

Exhibit P2 A TRUE COPY OF THE PLAN OF THE PROPOSED CONSTRUCTION.

Exhibit P3 A TRUE COPY OF THE PHOTOGRAPH OF THE FOOTPATH AND THE COMMENCEMENT OF THE CONSTRUCTION BY THE PETITIONER.

Exhibit P4 A TRUE COPY OF THE NOTICE RECEIVED FROM THE 2ND RESPONDENT DATED 19.04.2021.

Exhibit P5 A TRUE COPY OF THE COMPLAINT FILED BY THE 6TH RESPONDENT RECEIVED UNDER THE RTI ACT DATED 26.04.2021.

Exhibit P6 A TRUE COPY OF THE COVERING LETTER DATED 12.07.2021 UNDER THE RTI ACT ALONG WITH THE REPORT SUBMITTED BY THE 3RD RESPONDENT DATED 09.07.2021 Exhibit P7 A TRUE COPY OF THE COMMUNICATION FROM THE 2ND RESPONDENT DATED 25.05.2021.

Exhibit P8 A TRUE COPY OF THE APPLICATION DATED 30.06.2021 SUBMITTED BY THE PETITIONER. Exhibit P9 A TRUE COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT TO THE 4TH RESPONDENT DATED 13.07.2021.

RESPONDENTS' EXHIBITS:

EXHIBIT R2(a) TRUE COPY OF THE RELEVANT PAGES OF THE FILE NOTE B4.2199/2021 IN RESPECT OF THE PETITIONER'S PROPERTY.

EXHIBIT R2(b) TRUE COPY OF THE DECISION NO.Vll(l) OF THE 1ST RESPONDENT DATED 07.07.2021.

SR