SOMAN PILLAI G Vs. MAVELIKARA - THAMARAKULAM GRAMA PANCHAYAT

JUDGEMENT

(1.) The common question which arises for decision in both these writ petitions is whether the 3 metre distance rule provided under S.220(b) of the Kerala Panchayat Raj Act will apply to constructions by the side of major district roads.

(2.) The case of the petitioners in WP (C) 3927/08 is that they are constructing a building upon their small extent of 2 cents of land comprised in Sy. No. 390/2-2 of the Thamarakulam Village within the area of respondent Mavelikkara - Thamarakulam Grama Panchayat. According to them, they commenced the construction in the year 2000-01. After completing a portion due to financial constraints and due to illness of the first petitioner the construction had to be stopped. Later after obtaining financial assistance from the LIC of India they restarted the construction, but the constructions were interdicted by the respondents, viz. the Secretary of the Panchayat. No prior notice was issued to the petitioners and the petitioners were not afforded any opportunity to have their say in the matter. Petitioners approached this Court and obtained Ext. P6 judgment. Under Ext. P6 this Court directed the Secretary of the Panchayat to consider the Panchayat's order restraining constructions as a show cause notice and permitted the petitioners to submit Exts. P3 to P5 objections. Secretary of the Panchayat was directed to take decision on the issue and pass fresh orders within two weeks. The Panchayat was also directed to verify whether any notification has been published regarding the road upon which the constructions are being made for the purpose of S.220(b) in the Gazette. This Court had also indicated that if any notification has been published in the Gazette the Panchayat has to proceed as if S.220(b) does not apply. Pursuant to Ext. P6, P7 order has been issued in gross violation of the directions in Ext. P6. According to the petitioner the road is not a notified road and therefore P7 order informing the petitioner that permit will be issued only if constructions made within the distance limit are demolished is illegal. Prayers in the writ petition are the following:

(3.) The challenge in WP (C) No. 33152 of 2007 is against Ext. P2 order issued by the Mannur Grama Panchayat, the first respondent. Under Ext. P2 the petitioner is directed to demolish a building on the alleged violation of S.220(b) of the Panchayat Raj Act. According to the petitioner S.235W(1)(c) of the Panchayat Raj Act authorises the Secretary to issue order of demolition, only after service of a show cause notice as mandated under S.235W(2) is issued. Such a show cause notice is absent in this case. Petitioner further contends that his constructions are within 3 metres from the outer wall of the drain which goes by the side of the road. Thus the constructions do not in fact offend S.220(b). Petitioner further contends that Pathiripala - Kongad road on the side of which construction has been made is major district road. S.220(b) does not restrict constructions abutting a major district road. The petitioner also contends that the road is not a road notified by the Panchayat for attracting S.220(b) of the Panchayat Raj Act. Prayers are the following: