YOUSUF Vs. DISTRICT LEVEL COMMITTEE FOR REGULARIZATION

JUDGEMENT

(1.) The case set up in this Writ Petition (Civil) is as follows: That the petitioner along with his brother Hamsa purchased 2.84 ares (seven cents) of dry land in survey number 320/2-1 of Vallapuzha village within the limits of the second respondent panchayat on March 31, 2010. The western boundary of the plot is a PWD road. During those days the Kerala Panchayat Building Rules had not come into existence and the petitioner built a commercial building having a plinth area of 461.31 square meters. After completion of construction in the year 2011 when the petitioner approached the second respondent for getting the building numbered, the second respondent refused to number the building alleging that the construction violates section 220 (b) of the Kerala Panchayat Raj Act. The road passing through the front of the plot is only a PWD road but not a road which would fall under section 220(b). That apart when the construction was completed, the petitioner had left more than three meter front yard. Thereafter the PWD built a drainage canal which encroached into the petitioner's plot thereby reduced the front yard and setback available. Petitioner submitted an application for regularization of the construction. The fourth respondent inspected the petitioner's plot and building and took detailed measurements of the plot and construction with reference to the drainage canal constructed on the front side. The fourth respondent in exhibit P4 report concludes that the PWD has encroached into the petitioner's plot in resurvey 320/2 while constructing the drainage canal and if the land encroached is also reckoned, there will be more than 3m space available as front yard setback. The Assistant Executive Engineer, PWD roads division, Shoranur by exhibit P5 letter dated May 25, 2019 confirmed to the third respondent regarding construction of the drainage canal. Exhibit P4 report and sketch to demonstrates that in fact there is no violation of section 220 (b). Therefore petitioner submitted another application before the third respondent for regularizing the construction. On July 7, 2020, the first respondent rejected application for regularization by exhibit P7 order. The only reason stated in exhibit P7 for refusing to regularized the construction is that the construction is put up in violation of section 220 (b) of the Kerala Panchayat Raj Act. The first respondent did not issue notice to the petitioner or hear him before issuing exhibit P7. Petitioner is seriously prejudiced by exhibit P7. Petitioner is seriously prejudiced by exhibit P7. Exhibit P7 violates even the basic principles of natural justice.

(2.) Heard Sri. Jacob Sebastian, the learned counsel for the petitioner and Sri. Saigi Jacob Paletty, the learned Senior Government Pleader appearing for R1 and R4. In the nature of orders proposed to be passed in this writ petition, notice to R2 and R3 will stand dispensed with.

(3.) The case of the petitioner is that, the road in question which passes through the front of the plot, where the construction has been completed is not a road which would come within Section 220(b) of the Kerala Panchayath Raj Act. Further that, when the construction is completed the petitioner had completed more than three meters front yard, and that the Public Works Department (PWD) had built a drainage canal which encroached into the petitioner's plot thereby, it reduced the front yard and the setback available to the petitioner. The petitioner has submitted application for regularization of the construction. The 4th respondent-Taluk Surveyor had inspected the petitioner's plot and building and after taking measurements of the plot and construction with reference to the drainage canal constructed on the front side. The 4th respondent has submitted Ext.P4 report dated 18.01.2019, wherein it is categorically concluded by the 4 th respondent Taluk Surveyor that PWD has encroached into petitioner's plot in Re-Survey No. 320/2 while constructing the drainage canal. Further that, the said land encroached by the PWD is also reckoned, then there will be more than three meters space available as front yard set back. Further that, the Assistant Engineer, Public Works Department Road Division, Shornur, as per Ext.P5 letter dated 25.05.2019 has confirmed to the 3 rd respondent-Secretary of the Vallapuzha Grama Panchayath, regarding the construction of the drainage canal. Further according to the petitioner Ext.P4 report and sketch would demonstrate that in fact there will not be any violation of Section 220(b) of the Kerala Panchayath Raj Act, on account of the above said aspects.