Kerala High Court
Pious Joseph vs The Kalloorkad Grama Panchayath on 25 January, 2022
W.P.(C)No.6419 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943
WP(C) NO. 6419 OF 2021
PETITIONER:
PIOUS JOSEPH
AGED 56 YEARS
S/O. JOSEPH, VATTAKUZHI HOUSE, KALLORKAD P.O.
ERNAKULAM DISTRICT.
BY ADVS.
SRI MATHEW JOHN (K)
SRI.MATHEW DEVASSI
SRI.ABY J AUGUSTINE
RESPONDENTS:
1 THE KALLOORKAD GRAMA PANCHAYATH
KALLORKAD P.O. ERNAKULAM DISTRICT 686 668,
REPRESENTED BY ITS SECRETARY.
2 SECRETARY,
THE KALLOORKAD GRAMA PANCHAYATH, KALLORKAD P.O.
ERNAKULAM DISTRICT 686 668.
3 ASSISSTANT ENGINEER,
PWD ROADS SECTION, KALLOORKAD P.O. ,
ERNAKULAM 686 668.
BY ADVS.
SRI AJITH VISWANATHAN
SRI JAYASANKAR.G
SRI B.S.SYAMANTHAK,GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 30.11.2021, THE COURT ON 25.1.2022 DELIVERED THE
FOLLOWING:
W.P.(C)No.6419 OF 2021 2
T.R.RAVI,J.
-----------------------------
W.P.(C)No.6419 OF 2021
-------------------------------
Dated this the 25th day of January, 2022
The writ petition has been filed challenging Ext.P2 order
whereby a request made by the petitioner to the 2 nd respondent for
assigning a building number to the construction already made as per
Ext.P1 building permit and Ext.P5 sanctioned plan was rejected.
Ext.P2 says that the building has been constructed without providing
for the set back of 3 metres required from the road as provided
under Section 220(b) of the Kerala Panchayat Raj Act (the Act for
short). It was also stated that there is a difference in the
constructed area inasmuch as what was permitted under Ext.P1
permit was 123.45 M2, while the completed building has 125.63 M2
an excess of about 2 M 2. The contention of the petitioner is that on
the two sides where the building has the roads as its boundary,
there is a drain constructed on the side of the road which is actually
going through the property of the petitioner. It is submitted that if
the width of the drain is also included, the construction is well within
the 3 metres set back which is required under Section 220(b) of the
Act. According to the petitioner, Ext.P3 is the survey sketch which
has been prepared by him through a qualified Surveyor and it can be
seen that the drain is constructed within the boundary of the
petitioner's property. The petitioner submits that he has been
paying the basic tax for the entire extent of the property which is
available with him as per Ext.P7 title deed and the drain has been
constructed through the registered holding of the petitioner. The
petitioner submits that there has been no acquisition of the property
of the petitioner for the purpose of putting up the drain nor has
there been any free surrender of the property in the manner
required by law. Reliance is place on the decision of this Court in
John v. Thaikkad Panchayat reported in [1990 (2) KLT 721],
wherein it has been held that a free surrender can only be in the
nature of a gift and the same has to be completed in the manner
known to law through a registered document. Reliance is also
placed on the decision in Kanhangad Municipality v. Amina &
Anr. reported in [2016 (1) KLT 728] wherein again this Court held
that a property can be treated as a part of a public street only if the
same has either been acquired or freely surrendered in a manner
known to law. This Court considered the issue with particular
reference to Section 2(34) of the Municipalities Act, which defines
'public street', as per which a public street will include drains
attached to any such street whether the property is private property
or property belonging to the Government. The Court also says that
the provisions of the Municipalities Act does not confer any authority
on the Municipality to form a road through a private property,
without acquiring the same by paying compensation to its owner.
That is to say, the provisions will apply only in cases where there is
no dispute between the Municipality and a private individual as to
whether a portion of a private property has become a public street
by express order or implied surrender. It is further stated in the
judgment that if there is a dispute as mentioned above, the same
will have to be resolved by a competent civil court.
2. Counter affidavits have been filed by the Panchayat as
well as on behalf of the Government. As per the counter affidavit
filed by the Panchayat, the drain has vested in the Panchayat and
cannot be included for the purpose of finding out whether the
building constructed has the required set back. It is also submitted
that the petitioner did not submit a plan showing the drain.
3. After hearing the counsel on either side, it is evident that
the basic issue that has to be decided is whether the drain is lying
within the registered holding of the petitioner and whether there has
been any free surrender or acquisition of the said area by the
Panchayat from the petitioner in a manner known to law. The
counter affidavits filed by the respondents clearly say that there has
been no acquisition of the property. What is stated is that the
property has been surrendered impliedly and the petitioner has lost
his title by acquiescence and loss of possession. If the contention is
that there has been no acquisition of the property, necessarily, the
question to be resolved will be whether there has been any legal
surrender. Admittedly, there has been no document by which any
surrender has been made by the petitioner. As such, it cannot be
said that there is any express surrender of the property. Regarding
the question whether there has been any implied surrender for the
purpose of forming a public street, necessarily, the matter cannot be
resolved in a proceedings in a writ petition and will have to be
resolved only by means of a civil suit. As long as there is no
determination by a civil court regarding the implied surrender, the
only option available will be to measure the distance between the
boundary as per the registered holding of the petitioner to the
constructed building and if the said distance satisfies the
requirement of law, I am of the opinion that the Panchayat cannot
refuse to grant a building number. However, the grant of such a
building number will not in any way prejudice the right of the
Panchayat to approach a civil court regarding the question whether
there has been an implied surrender by the petitioner of his property
for the purpose of a public street. Regarding the question whether
there is an excess of 2M 2 constructed, I deem it appropriate that the
petitioner should be given an opportunity to set right the same to
the satisfaction of the Panchayat.
4. In the result, the writ petition is disposed of directing the
Panchayat to get the measurement of the distance from the
boundaries of the registered holding of the petitioner to the
constructed portion and if the distance so measured satisfies the
requirement under Section 220(b), the said objection regarding
deficiency of set back should not come in the way of issuing a
building number to the petitioner. The Panchayat shall also after
giving an opportunity to the petitioner regarding the excess in the
total area of construction and after considering the possibility of
setting the same right by any changes which can be made by the
petitioner, inform the petitioner about the action that is to be taken
to set right the defect. If the petitioner complies with such
directions, the said defect pointed out should also not come in the
way of granting the building number. It is made clear that this Court
is not answering the question whether there has been an implied
surrender by the petitioner, since the same cannot be considered in
a proceedings under Article 226 of the Constitution of India. Any of
the parties may, if so advised, approach the competent civil court for
resolution of the said issue.
Sd/-
T.R.RAVI
JUDGE
dsn
APPENDIX OF WP(C) 6419/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT DATED
01.12.2015 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 11.04.2017 ISSUED
BY THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE SURVEY SKETCH.
EXHIBIT P4 TRUE COPY OF THE BASIC TAX RECEIPT DATED
02.09.2019.
EXHIBIT P5 TRUE COPY OF THE PLAN SANCTIONED BY THE 2ND
RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE COMPLETION PLAN SUBMITTED BY
THE PETITIONER ..
RESPONDENTS' EXTS:
EXT.R1(A): TRUE COPY OF REPORT DT.13.2.2017 SUBMITTED BY
THE 3RD RESPONDENT TO RESPONDENTS 1 AND 2
EXT.R1(B): TRUE COPY OF REPORT DT.10.4.2017 SUBMITTED BY
THE ASSISTANT ENGINEER, LSGD SECTION OF THE 1ST
RESPONDENT TO RESPONDENTS 1 AND 2.
ANNEXURE R3(A): TRUE COPY OF SKETCH PREPARED BY THE 3RD
RESPONDENT.
ANNEXURE R3(B): TRUE COPY OF COMMUNICATION DT.13.2.2017.
