THOMAS PAUL Vs. STATE OF KERALA

JUDGEMENT

(1.) The question which arises for decision in this case is whether the distance rule under Section 220(b) of the Kerala Panchayat Raj Act, 1994 will apply to properties which abut all roads situated within the limits of a Panchayat, even in the absence of a notification under Rule 3 of the Kerala Panchayat Raj (Manner of Publication of Notification or Notice) Rules, 1996 notifying the same as a public road for the purpose of Section 220(b) of the Act.

(2.) Ext. P4 order passed by the 3rd respondent-Karukutty Grama Panchayat directing demolition of a newly constructed building as well as Ext. P8 order passed by the 2nd respondent-Tribunal for Local Self Government Institutions on an appeal against Ext. P4 are under challenge in this Writ Petition filed by persons who constructed the building. The property upon which the construction is made is situated on the side of a road by name "Karukutty Railway Station road". The South Indian Bank which was approached by the petitioners for financial assistance for constructing the building insisted on a No-Objection Certificate from the 3rd respondent-Panchayat. The Panchayat issued Ext. P1 certificate to the petitioners. The petitioners would complete the entire structural work of the ground floor of the building within two months and Exls.P2 and P3 are photographs of the building under construction. When the petitioners took up the structural work of the first door of the building, they were served with Ext. P4 order-cum-notice, alleging that the construction is in violation of the distance rule provided under Section 220(b) of the Panchayat Raj Act. To Ext. P4, the petitioners submitted Ext. P5 objections. They became constrained to prefer an appeal against Ext. P4 before the Tribunal since the Panchayat was not inclined to have an early disposal of Ext. P4 and the objections. The contention which was prominently raised by the Panchayat before the Tribunal was that the Karukutty Railway Station Road on the side of which, construction has been taken up, is a road for the purpose of Section 220(b) of the Act. The petitioners contend that the above contention is untenable and that the Panchayat only took a provisional decision to declare the road as a public road for the purpose of Section 220(b). The said decision was taken on 20.2.2006, the date by which petitioners had already completed construction of the ground floor. Through Ext. P7 public notice dated 20.2.2006, the Panchayat invited objections to the said provisional decision. The stand of the Panchayat is that since nobody preferred any objections in response to Ext. P7, the Panchayat resolved to approve Ext. P7 by 25.3.2006. Mere publication of a notice in the nature of Ext. P7 will not amount to a notification for the purpose of Section 220(b), according to the petitioners. The appeal preferred by the petitioners was disposed of by the Tribunal on 30.5.2006 vide Ext. PS order. Ext. PS directs the 3rd respondent-Panchayat to pass final orders on Ext. P4 with notice to the petitioners. The petitioners contend that even such a direction was unwarranted since the position was obvious that no notification in terms of Section 220(b) notifying the Karukutty Railway Station Road as a public road had been issued. Accordingly the petitioners seek a writ of certiorari quashing Exts.P4 and P8.

(3.) In the counter affidavit submitted on behalf of respondents 3 and 4, it is contended that the Karukutty Railway Station Road is one of the oldest and major public roads within the limits of the Karukutty Panchayat; that the road is included in Ext. P7 notification; and that the road being a public road, no-one has a right in view of Section 220(b) to construct any building on any land abutting the road within a distance of 3 metres from the margin of the road. The counter affidavit refers to Ext. P1 No Objection Certificate and contends that the construction presently made by the petitioners is in violation of Ext. P1. The petitioners have to construct the building after leaving a distance of 3 metres from the margin of the public road. Ext. P1 permits the petitioners to take up constructions only in that manner. Ext. P4 was issued only when the Panchayat came to know that the petitioners are going ahead with constructions in violation of the distance rule provided under Section 220(b). Since constructions were in gross violation of Section 220(b), those constructions were liable to be removed, more so since the petitioners received Ext. P1 without any objection and without seeking any clarifications. The contention that the Panchayat's decision to include the Karukutty Railway Station Road as a public road for the purpose of Section 220(b) has not been notified is also denied in the counter affidavit. The said decision has been notified by Ext. P7 and nobody filed any objections to the proposal. Therefore, the decision dated 28.2.2006 to include all the 174 roads mentioned in Ext. P7 became operative and thus the roads stood notified under Section 220(b),