C.D. SUKUMARAN NAIR, S/O. PADMANABHAN NAIR Vs. SECRETARY, UZHAVOOR GRAMA PANCHAYATH, UZHAVOOR POST, KOTTAYAM

JUDGEMENT

(1.) Since the issue involved in both these writ petitions is the same they are taken up for consideration together and disposed by this common judgment. For the sake of convenience, the reference to the facts and the exhibits is from W.P.(C). No. 7966 of 2010.

(2.) The petitioner's wife owned 1.60 Ares of land within the territorial limits of the 1st respondent Panchayat. The said land abutted the M.C Road, and on the said land, there stood a building with five rooms and a lean-to. The building was assigned five numbers, namely, 2/15, and 2/16 to 19 and the individual rooms were let out to tenants and also assessed to property tax at the applicable rates. It would appear that, in the year 2003, consequent to a proposal that was mooted for widening the road, a portion of the property belonging to the petitioner's wife, together with the portion of the building that stood on the said property, fell within the alignment area proposed for the widening of the road. The petitioner, therefore, demolished the portion of the building, which came within the alignment of the road widening scheme, and thereafter, strengthened the remaining portion of the building and put up two additional floors to the structure that remained after the initial demolition works. The rooms in the additional floors, as also the remaining rooms of the old building, were thereafter let out to tenants. The petitioner's wife, who was the owner of the building, died in February, 2007 and, subsequent to a partition that was effected between the legal heirs of the deceased wife, the ownership of the building came to be vested in the petitioner. The petitioner, therefore, preferred Ext.P4 application before the respondent Panchayat seeking a change of the ownership of the building in the records of the Panchayat. To the said application dated 29.09.2008, the petitioner was served with Ext.P5 reply dated 10.11.2008, which indicated that, inasmuch as the building that now stood in the property had no resemblance to the earlier building that was described by the petitioner, and further, there was no permission produced by the petitioner in terms of the Kerala Municipality Building Rules to justify the additional construction effected by the petitioner, the application of the petitioner for change of ownership could not be acted upon. Faced with the said situation, the petitioner preferred Ext.P6 application for regularisation of the alleged unauthorised construction. The said application was rejected by the respondent Panchayat through Ext.P7 communication dated 24.01.2009 stating that the construction put up by the petitioner was within the prohibited distance from the Highway, and further, the necessary No Objection Certificate (NOC) from the Highway Authority in terms of the Kerala Highway Protection Act had not been obtained by the petitioner prior to putting up the construction. The request of the petitioner for regularisation, as also for assignment of building numbers, was rejected. The petitioner impugned Ext.P7 communication through W.P(C).No.22261 of 2009 before this Court. By Ext.P9 judgment, the said writ petition was allowed following the decision of this Court in Mohammed v. Chirakandam Grama Panchayath (2008 (3) KLT 300) , which dealt with the circumstances under which the NOC from the Highway Authority could be insisted upon, and by quashing Ext.P7 communication, and directing the respondent Panchayat to pass fresh orders in the matter after hearing the petitioner and in accordance with law.

(3.) Immediately on receipt of Ext.P9 judgment, the petitioner approached the respondent Panchayat once again through Ext.P10 application dated 15.12.2009 seeking an allotment of numbers to the building put up by the petitioner. The petitioner was then served with Ext.P11 order dated 24.12.2009 of the Secretary of the Panchayat stating that the request of the petitioner could not be acceded to since, according to the respondents, the construction was in violation of Section 220(b) of the Kerala Panchayat Raj Act, which mandated the maintenance, by the building, of a prescribed distance from the road. Aggrieved by Ext.P11 order of the Secretary, the petitioner preferred an appeal before the appellate authority, namely, the Committee of the Panchayat. By proceedings dated 30.01.2010, the said Committee allowed the appeal preferred by the petitioner and directed the Secretary to number the building put up by the petitioner. Thereafter, the petitioner was served with Ext.P13 communication dated 24.02.2010 from the Secretary of the Panchayat, which informed the petitioner that the petitioner's building could not be numbered since there was a violation of provisions of Section 220(b) of the Panchayat Raj Act. In W.P.(C).No.7966 of 2010, the petitioner impugns Exts.P11 and P13 orders, inter alia, on the ground that, it was not open for the Secretary of the Panchayat to go behind the proceedings dated 30.01.2010 of the appellate authority that found in favour of the petitioner, more so when there was no further appeal or revision preferred by the Secretary against the order of the appellate authority.