IMPORTANT POINT
An owner of property is entitled to include the entire plot for setback calculations under building regulations, regardless of the use of a portion of that property by others, provided all other regulatory requirements are satisfied.

JUDGMENT :

THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

The petitioner challenges Ext.P9 order by which Ext.P2 application submitted by him seeking a building permit was rejected on the ground that the petitioner has not left the side yard of 1.5 meters from the passage. In other words, the Panchayat had directed the petitioner to exclude the private passage which is owned by the petitioner from being reckoned for the purposes of setback under Rule 23(2) of the Kerala Panchayat Building Rules, 2019. It is the specific contention of the learned counsel for the petitioner that, the passage in question is included in the petitioner's deed and he is the owner in possession and enjoyment and he had only permitted the 3rd respondent to use the same as a way.

2. Ext.P9 states that the petitioner had demarcated the pathway which has been used by others. There were complaints about the attempt of the petitioner to prevent the usage of the pathway. A counter has been filed on behalf of the Panchayat stating that, the passage in question is being used by the locals and the attempt of the petitioner has been to prevent the same. It is also stated that, at any rate, these are all disputed questions of fact that cannot be decided in a Writ Petition.

3. Heard Sri. Georgekutty Mathew, learned counsel appearing for the petitioner and Sri.George Mathew, learned counsel appearing for the Panchayat.

4. Taking note of the definition of “plot”, “street” and also “sideyard” in the Panchayat Building Rules, it has to be noticed that in the instant case, the passage in question is owned by the petitioner himself and there is no rival claim over the same. The claims of the 3rd respondent and others were only about the user of the pathway. No provision in the Kerala Panchayat Building Rules prevents the petitioner from including the entire plot over which he has ownership for reckoning the setback. No provision says that the petitioner has to exclude that portion of his own property which he has permitted others to use to be excluded to reckon the setback. This aspect is not considered in Ext.P9. The right to use the property includes the right to put up buildings subject, of course, to the provisions of the Kerala Panchayat Building Rules.

5. In view of the above, I quash Ext.P9 and direct the 2nd respondent to consider Ext.P2 application seeking a building permit, taking into account the entire property which is covered under his document. However, it will be open to the 2nd respondent to take an undertaking from the petitioner in the same form as per Ext P4 or with such conditions required to ensure that the passage now being used by the third respondent and others is not obstructed in any manner by the petitioner. In other words, the permission is only for reckoning the entire plot over which he has ownership for the purpose of setback. Needless to say, the petitioner has to comply with all other provisions of the Kerala Panchayat Building Rules, 2019. A decision shall be taken on the application within a month from today.

The Writ Petition is allowed as above.