P.V.Thomas Panicker vs Elamballur Grama Panchayat
2022 Latest Caselaw 10330 Ker

Citation : 2022 Latest Caselaw 10330 Ker
Judgement Date : 7 October, 2022

Kerala High Court

P.V.Thomas Panicker vs Elamballur Grama Panchayat on 7 October, 2022

W.P.(C) No. 25605/2012             :1:




                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

          FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944

                         WP(C) NO. 25605 OF 2012

PETITIONER/S:

     1       P.V.THOMAS PANICKER
             AGED 70 YEARS
             S/O. LATE P.K.VARGHESE PANICKER, KALLARACKAL HOUSE, NEAR
             RAILWAY STATION, KUNDARA, KOLLAM NOW RESIDING AT T.C.NO.
             25/436, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN-695 001.
     2       LINI THOMAS
             D/O. P.V.THOMAS PANICKER, KALLARACKAL HOUSE, NEAR
             RAILWAY STATION, KUNDARA, KOLLAM,
             NOW RESIDING AT NO. 12-A, AVITTOM ROAD, KUMARAPURAM,
             MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN-695 011.
             BY ADV SRI.K.B.PRADEEP


RESPONDENT/S:

1            ELAMBALLUR GRAMA PANCHAYAT
             ELAMALLUR, KUNDARA P.O., PIN-691 501, REPRESENTED BY ITS
             SECRETARY.
2            STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY,
             GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM - 695 001.
             BY ADVS.
             R1 BY SRI.B.VINOD




             R2 BY SRI. JOBY JOSEPH, SR. GOVERNMENT PLEADER



         THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

      07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 25605/2012              :2:


                            SHAJI P. CHALY, J.
           ---------------------------------------------------------
                        W.P.(C). No. 25605 of 2012
           ---------------------------------------------------------
                         Dated this the 7th day of October, 2022.

                                 JUDGMENT

The petitioners have filed this writ petition seeking to quash

Exhibit P1 notice dated 06.04.2012 issued by the Elamballur Grama

Panchayat, Kollam District, under Section 235W (1) and (2) of the

Kerala Panchayat Raj Act, 1994 ('Act, 1994' for short); and Exhibit

P7 final order dated 05.07.2012 passed under Section 235W (3) of

the Act, 1994.

2. The case of the petitioners is that to protect the building

from the vagaries of nature, they started erecting temporary roofing

on its terrace using steel girders without enclosing its sides. It is

also contended that the said work does not require permission from

the local authority as per the provisions of the Kerala Panchayat

Building Rules, 2011 ('Rules, 2011' for short). Therefore, according

to the petitioners, the action initiated by the Secretary of the

Panchayat against the petitioners is illegal and arbitrary and is liable

to be interfered with by this Court.

3. I have heard Sri. Jeevan Krishnakumar representing Sri.

K.B. Pradeep, the learned counsel for the petitioners on record and

the learned Senior Government Pleader Sri. Joby Joseph, and

perused the pleadings and materials on record.

4. Admittedly, the subject issue relates to the construction of

roofing over a portion of the existing building. The violation

attributed against the petitioners is the mandatory requirement

contemplated under Section 220 (b) of the Act, 1994 and Rules 28

and 29 of the Rules, 2011, dealing with setbacks to be provided

from different roads. Section 220(b) of the Act, 1994 reads thus:

"220. Prohibition against constructions in or over public roads, etc. -

Not-withstanding anything contained in this Act no person shall,

...

(b) construct any building or structure other than a compound wall in

any land abutting any National Highway, State High way, 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:"

5. However, on an analysis of the first proviso to Section

220(b), it is clear that the limit of 3 meters prescribed under

Section 220 (b) shall not be applicable for the construction of the

first floor or second floor or both upon a building existing as on the

date of coming into force of the Act. Going through Exhibit P1

provisional order issued under Section 235W (2) of the Act, 1994

and the final order passed thereto, it is categoric and clear that the

petitioners constructed a roof on the existing building. Rule 28 of

the Rules, 2011 is incorporated to implement Section 220 (b)of the

Act, 1994. Rule 28 of the Rules, 2011 reads thus:

"28. Minimum distance between central line of a street and building.- (1) The minimum distance between the central line of a street and any building (other than a compound wall or fence or outdoor display structure) shall be 4.50 metres and the minimum distance between the street boundary and building shall be 2 metres for buildings upto 7 metres in height, in roads other than National Highway, State Highway, District Roads and roads notified by Panchayat; and it shall be 3 metres. for National Highway, State Highway, District Roads and notified roads; and for buildings more than 7 metres in height the set back shall be minimum 3 metres from the boundary of any street/road. Provided that in the case of cul-de-sac not exceeding 150 metres length or pedestrian lanes or streets below 3 metres width it shall be sufficient if the distance between the plot boundary abutting the street and building is 1.50 metres for buildings upto 7 metres height irrespective of the distance from the central line of the road to the buildings.

(2) Any restriction under street alignment or building line or both, if any, fixed for the area and restriction under any Town Planning Scheme or any other rules or byelaws shall also apply simultaneously to all buildings in addition to the provisions contained in sub rule (1).

(3) The provisions contained in sub-rules (1) and (2) shall apply invariably to all buildings where the front, rear or side yards abut a street or gain access through a street."

6. On a conjoint reading of Section 220 (b) and Rule 28 of

the Rules, 2011, I am of the undoubted opinion that the

proceedings initiated against the petitioners on the ground that they

have not provided sufficient setback of 3 metres in contemplation of

the law, cannot be sustained under law.

7. That apart, yet another violation that is raised against the

petitioners is on account of Rule 29 of the Rules, 2011 on the

ground that the sheet roof provided by the petitioners is having

more height than what is prescribed under Rule 29(3) of the Rules,

2011. I do not think, much deliberation on that aspect is required,

especially due to the fact that Rule 29 was omitted from the Rules

on and with effect from 10.01.2014.