IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

THURSDAY, THE 11^TH DAY OF JULY 2024 / 20TH ASHADHA, 1946 WP(C) NO. 12925 OF 2024 PETITIONER:

K.G. RADHAKRISHNAN, AGED 78 YEARS S/O LATE GOPALA PILLAI, HOUSE NO. 69A, THOTTADI VILA RESIDENCE ASSOCIATION, THIRUMALA VILLAGE, THIRUVANTHAPURAM, PIN - 695032 BY ADVS.

JOHN JOSEPH(ROY)

R.S.MAHESH KRISHNA RESPONDENTS:

1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT (LOCAL SELF GOVERNMENT), GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN – 695001

2 THE CHIEF TOWN PLANER (VIGILANCE), SWARAJ BUILDING, NANDANCODE, THIRUVANATHAPURAM, PIN – 695003

3 THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM, PIN – 695043

4 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, THIRVANTHAPURAM, PIN – 695043

5 THE SECRETARY, MUNICIPAL CORPORATION, THIRVANANTHAPURAM, PIN – 695033 6 AKHIL, AGED 40 YEARS PANAORAMA, MUTTARA. P.O., KOLLAM DISTRICT, PIN – 691512 BY ADVS.

SAJU J PANICKER S.SHIV SHANKAR(K/912/2011)

R1 TO R4 BY SMT.AMMINIKUTTY K., SENIOR GOVERNMENT PLEADER R5 BY SRI. SUMAN CHAKRAVARTHY, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

The petitioner complained that the sixth respondent had put up a compound wall encroaching into the public road. He relies on the measurement shown in Ext.P5 asset register maintained by the Corporation to contend that the width of the road is shown as three meters.

2. A statement has been filed on behalf of the 5th respondent, Secretary of the Corporation, wherein it is stated as follows:-

“2. It is submitted that the petitioner raised the allegations in the complaint that 6th respondent possessed 1.92 Ares of land in resurvey number 109 of Thirumala village and he has constructed a concrete compound wall by encroaching public road of the Corporation after removing the existing wall. In response to the complaint Engineering wing of the Municipal Corporation inspected the site and made necessary enquiry regarding the issue. It was noticed that 6th respondent is constructing the concrete compound wall without obtaining permission from the Corporation. As per Rule 69 of KMBR, 2019, prior permission from the Corporation is required to construct a compound wall which separates the public road and private property. Hence the construction of the compound wall was stopped by issuing notice and 6th respondent was instructed to get permission from Corporation as per the KMBR 2019. Later he was submitted an application for the approval to construct the said compound wall and the Corporation is processing the said application.

3. It is submitted that the public road is not seen encroached by the 6th respondent as per the re-survey sketch. The 6th respondent has completed the building construction, as per the approved building permit and the Municipal Corporation has issued occupancy certificate to him.”

3. A statement has been filed on behalf of the Chief Town Planner (Vigilance)/the second respondent enclosing a copy of the report prepared by the Chief Town Planner (Vigilance), Town Planner (Vigilance) and the Deputy Town Planner(Vigilance) marked as Annexure R2(a). The said report shows that a survey has to be conducted to ascertain whether the petitioner has encroached into the public road as per the revenue records and also whether any mistake was committed while considering the ‘peculiar shape of plot’ coming under Rule 26(4) of the Kerala Municipality Building Rules, 2019. The District Collector has filed a statement mentioning the report of the Village Officer and that of the Tahsildar on the complaint preferred by the writ petitioner, without producing the reports referred.

4. In view of the statement of the Corporation as extracted above and also the report of the Chief Town Planner (Vigilance) noted above, there will be a direction to the second respondent to depute a competent