IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 22^ND DAY OF MAY 2023 / 1ST JYAISHTA, 1945 WP(C) NO. 36455 OF 2017 PETITIONER:

BHASKARAN MENON S/O.APPU MENON, UNNIKKAT HOUSE, AMAYUR, PATTAMBI TALUK, PALAKKAD DISTRICT.

BY ADVS.

SRI.VINOD RAVINDRANATH SRI.ASHWIN SATHYANATH SMT.MEENA.A. SRI.SAJU.S.A SRI.VINAY MATHEW JOSEPH RESPONDENTS:

1 KOPPAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, PULASSERY P.O, PALAKKAD -

679 307.

2 THE SECRETARY, KOPPAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PULASSERY P.O., PALAKKAD - 679 307.

BY ADVS.

SRI.S.P.ARAVINDAKSHAN PILLAY SMT.L.ANNAPOORNA SRI.PETER JOSE CHRISTO SMT.K.N.REMYA SMT.N.SANTHA SRI.V.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The petitioner is in ownership and possession of 0.9409 hectares of land in Re.Sy.No.218/7 in Block No.24 of Koppam Village. The said property comes within the limits of Koppam Grama Panchayat. When the petitioner took steps to construct a compound wall on the north-western side of his property, the panchayat issued Ext.P1 stop memo stating that the petitioner is constructing the compound wall without the permission of the panchayat and encroaching upon the 'Myladipara Puthiya Road Thodu'. The petitioner submitted Ext.P2 reply stating that he has not encroached into any public property. The petitioner later submitted Ext.P3 application for permit for construction of the compound wall. To Ext.P3, the 2^nd respondent Secretary of the panchayat gave a reply stating that since the petitioner has started construction of the compound wall by encroaching upon the thodu, permission cannot be granted and the petitioner has to stop further construction till the enquiry into the dispute is over. The petitioner, therefore, submitted an application before the Additional Tahsildar, Pattambi to fix the boundary of his property. Since Additional Tahsildar did not take any steps, the petitioner approached this Court and by Ext.P7 judgment, this Court directed the Additional Tahsildar to fix the boundaries of the property of the petitioner in accordance with the provisions of the Kerala Survey and Boundaries Act and the rules made thereunder. Accordingly, the boundaries were fixed in the presence of the petitioner, the Village Officer and the member of the panchayat. After fixing the boundaries, when the petitioner took steps to construct the compound wall on the north-western side of the property, the 2^nd respondent issued Ext.P9 notice stating that the petitioner has constructed the compound wall by encroaching into 'Myladipara Puthiya Road Thodu' which is vested in the panchayat. As per Ext.P9, he was asked to demolish the construction carried out encroaching into the stream. Challenging Ext.P9, the petitioner has approached this Court.

2. According to the petitioner, he is constructing the compound wall as per the boundaries fixed by the Taluk Surveyor and that the construction is being made 2m away from the alleged stream. It is contended that there is no stream and only a 'vellachal' is running through the north-western boundary of the property of the petitioner.

3. A counter affidavit is filed on behalf of the respondent stating that the thodu/water channel which flows near the boundary of the petitioner is a water course which is vested in the panchayat in terms of section 218 of the Kerala Panchayat Raj Act (for short, KPR Act) and is included in Ext.R2(b) asset register of the panchayat. The petitioner is attempting to construct the boundary wall encroaching upon the said stream.

4. A reply affidavit has been filed by the petitioner stating that the width of the alleged thodu is only 50 cm and that the petitioner is constructing the compound wall leaving a further width of 2m from the thodu so that the width of the water channel can be increased to 2m and 50cm. It is also contended that the entries in the asset register h