Kerala High Court
The President,Pandalam ... vs Smt.Annamma on 29 October, 2021
W. P. (C) No. 26033 of 2012 -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WP(C) NO. 26033 OF 2012
PETITIONER:
THE PRESIDENT,PANDALAM THEKKEKARA GRAMA
PANCHAYATH
THATTAYIL P.O., PATHANAMTHITTA-691525.
BY ADVS.
SRI.SIBY MATHEW
SRI.PHILIP J.VETTICKATTU
B. PREMNATH
RESPONDENTS:
1 SMT.ANNAMMA
SUBHI BHAVAN, PADUKOTTUKKAL, THATTAYIL P.O.,
PATHANAMTHITTA-691525.
2 THE DEPUTY DIRECTOR OF PANCHAYAT
PATHANAMTHITTA-689645.
3 STATE OF KERALA
REPRESENTED BY THE SECRETARY, LOCAL SELF
GOVERNMENT (RA) DEPARTMENT, SECRETARIAT,
TRIVANDRUM-695001.
BY ADVS.
SRI.PHILIP M.VARUGHESE FOR R1
SRI.AMRIT RAJ BABY
SRI.JACOB E SIMON,GOVERNMENT PLEADER FOR R2, R3
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W. P. (C) No. 26033 of 2012 -2-
C. R.
JUDGMENT
Petitioner is President of the Pandalam Thekkekara Grama
Panchayat, and according to the petitioner, he has been authorized by
a resolution of the Panchayat Committee dated 19.10.2012 to file the
writ petition.
2. The case of the petitioner is that in terms of Ext. P1
resolution, all the roads in the Panchayat area were notified under
Section 220(b) of the Kerala Panchayat Raj Act, 1994. Therefore
when construction of buildings are made within the limits of the
Grama Panchayat, an open space of 3 meters on the side facing the
road has to be left. But the 1st respondent, namely Smt. Annamma,
constructed a commercial building without leaving the open space as
required under law and thereupon, she was served with Exts. P2 and
P3 notices by the Panchayat directing to demolish the unauthorized
construction to which the 1 st respondent has filed Ext. P5 objection.
However the Panchayat found the reply of the 1 st respondent not
satisfactory and consequently, the building was not numbered.
3. Thereafter the 1st respondent approached the Deputy Director
of Panchayat, Pathanamthitta seeking directions to the Panchayat to
number the building but the said request was rejected as per Ext. P6
order dated 15.02.2008 and later as per Ext. P7 order dated 03.12.2011
the Secretary of the Grama Panchayat has declined to number the
building of the 1st respondent.
4. Thereafter the 1st respondent filed a representation again
before the Deputy Director of Panchayat who was of the opinion that
the road in question is not covered by Ext. P1 resolution and
accordingly, the Panchayat was directed to number the building
constructed by the 1st respondent evident from Ext. P8 order dated
25.10.2011.
5. It seems the Panchayat has filed an objection to Ext. P8 and
the matter remained like that. Since the Panchayat did not take any
action pursuant to the direction contained in Ext. P8, the 1 st respondent
filed a representation before the Minister for Local Administration,
who in turn has sought for a report from the Deputy Director of
Panchayat and in the report, it appears that the Deputy Director stated
that the road abutting the property of the 1 st respondent is not yet
notified by the Panchayat, so as to have any implication of Section
220(b) of the Kerala Panchayat Raj Act, 1994 vis-a-vis the
construction made by the 1st respondent.
6. Anyhow, thereafter the Government as per Ext. P12 order
dated 24.09.2012 declared that the rule requirement contained under
Section 220(b) of the Act 1994 does not apply to the commercial
building constructed by the 1st respondent. It is thus challenging Ext.
P12 the writ petition is filed with an alternative prayer to declare that
the Keerukuzhy Market - Water Tank Road is covered by Ext. P1
resolution issued by the Panchayat under Section 220(b) of the Kerala
Panchayat Raj Act, 1994.
7. The Deputy Director of Panchayat has filed an objection
justifying the orders, passed by the Deputy Director and the State
Government respectively, and it is reiterated in the same that there is
no resolution passed by the Panchayat notifying the road in question,
in accordance with the parameters provided under Section 220(b) of
the Act 1994.
8. I have heard, learned counsel for the petitioner Sri. Philip J.
Vettickattu, learned Government Pleader Sri. Jacob E. Simon for
respondents 2 and 3 and Sri. Philip M. Varghese for the 1 st respondent
and perused the pleadings and material on record.
9. The learned counsel for the petitioner reiterated the
contentions raised in the writ petition and has taken me through Ext.
P1 resolution passed by the Panchayat dated 22.11.1994. According to
the learned Government Pleader, Ext. P1 resolution passed by the
Panchayat has not only not notified the road in question, it cannot
even be considered as a general notification notifying all the roads of
the Panchayat in terms of Section 220(b) of Act 1994 as contended.
10. I have considered the rival submissions. The sole question
corps up for consideration is whether Ext. P1 resolution is a resolution
passed by the Panchayat in contemplation of Section 220(b) of Act
1994. The said provision reads thus:-
"220. Prohibition against constructions in or over
public roads, etc. - Not-withstanding anything contained in this
Act no person shall,
(a) build any wall or erect any fence or other obstruction
or projection or make any encroachment whatsoever, whether
permanent or temporary, in or over any public road;
(b) Construct any building or structure other than a
compound wall in any land abutting any National Highway, State
Highway, District roads or any other roads notified by the village
panchayat within a distance of three metres from the boundary of
his land abutting the road:
Provided that, the said limit of three metres shall not be
applicable for the construction of 1st floor or 2nd floor or both
upon a building, existing on the date of coming into force of this
Act:
Provided further that, any path, bridge or similar
constructions used solely for entering into any building or
weather shade or sun-shade forming part of the building may,
subject to the rules regarding construction of building, be
constructed within the said three metres limit":...
11. In the instant case the Grama Panchayat has no case that the
Construction in question is abutting any National Highway, State
Highway, or a District Road, but if the road in question is a road
notified by the Village Panchayat definitely the consequences
contained under the said provision would have to be applied. However
here the question arises is whether Ext.P1 Resolution has to do
anything with the notification of the road in question or the roads
generally within the limits of the Grama Panchayat.
12. On an analysis of Ext. P1, what I could gather is that a
resolution was passed by the Panchayat on 22.11.1994, to make
sufficient publicity that constructions within 3 meters from the roads
as prohibited in Section 220 (b) of the Act 1994 is approved by the
Panchayat Committee, and further directed that necessary steps shall
be taken by the Secretary to make due publicity to the same.
13. It is clear from the said resolution that no general decision or
any specific decision was taken by the Grama Panchayat to generally
or distinctively notify the roads in contemplation of rule 220(b) of Act
1994. It was exactly the finding rendered by the Deputy Director of
Panchayat in Ext. P8 order dated 25.10.2011 and the Government in
Ext. P12 order dated 24.09.2012. Thus, without notifying a road
within the Panchayat area by the Panchayat, other than a National
Highway, State Highway or a District Road, the Panchayat is not at
liberty to insist for the compliance of the imperative contained under
Section 220 (b).
14. In that view of the matter, I do not think the petitioner has
made out any case justifying interference in a proceeding under
Article 226 of the Constitution of India there being no arbitrariness or
illegality in the orders passed by the respective statutory authorities.
15. Therefore, the petitioner is also not entitled to get any
declaration on the basis of Ext. P1 resolution, as is sought for.
Needless to say, the writ petition fails, accordingly it is dismissed.
However I make it clear that if the building is not already numbered,
steps shall be taken to number the building at the earliest and at any
rate within three weeks from the date of receipt of a copy of this
judgment by the Grama Panchayat.
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
APPENDIX OF WPC 26033 OF 2012
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF RESOLUTION NO. XI, DATED
22-11-94 PASSED BY THE PETITIONER
PANCHAYAT
EXHIBIT P2 TRUE COPY OF REPORT SUBMITTED BY ONE OF
THE STAFFS OF PANCHAYAT AFTER
INSPECTING THE SITE
EXHIBIT P3 TRUE COPY OF NOTICE DATED 14-4-2004
ISSUED TO THE 1ST RESPONDENT TO
DEMOLISH THE UNAUTHORIZED CONSTRUCTION
EXHIBIT P4 TRUE COPY OF NOTICE DT. 16-6-2004
ISSUED TO THE 1ST RESPONDENT
EXHIBIT P5 TRUE COPY OF EXPLANATION DATED 22-6-
2004 SUBMITTED BY THE 1ST RESPONDENT
EXHIBIT P6 TRUE COPY OF ORDER DATED 15-2-2008
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P7 TRUE COPY OF LETTER DATED 3-12-2011
ISSUED BY THE PETITIONER TO THE 1ST
RESPONDENT
EXHIBIT P8 TRUE COPY OF LETTER DATED 25-10-2011
ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER
EXHIBIT P9 TRUE COPY OF LETTER DATED 2-11-2011
ISSUED BY THE PETITIONER TO THE 2ND
RESPONDENT
EXHIBIT P10 TRUE COPY OF COMPLAINT DT. 13-6-2011
FILED BY THE PETITIONER BEFORE THE
MINISTER FOR LOCAL ADMINISTRATION
DEPARTMENT
EXHIBIT P11 TRUE COPY OF REPORT DATED 24-11-2011
FILED BY THE 2ND RESPONDENT BEFORE THE
3RD RESPONDENT
EXHIBIT P12 TRUE COPY OF ORDER DATED 24-9-2012
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER
