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HIGH COURT OF KERALA
A.V.RAMAKRISHNA PILLAI, J
SAHEER P.S. – Appellant
Versus
AROOKKUTTY GRAMA PANCHAYATH – Respondent
WP(C)/11630/2010
Encroachment - Unauthorized Construction - Panchayath Raj Act - Section 220(b) - Court found that the respondent panchayath is legally obliged to act on previously issued notice to remove encroachments violating building rules.
Fact of the Case:
Petitioners allege unauthorized construction by the 3rd respondent encroaching public road and obstructing traffic. The respondent panchayath initially claimed no violation, leading petitioners to seek court intervention after no action was taken despite directives from authorities.
Finding of the Court:
Court found that the panchayath acknowledged unauthorized structures and was legally obligated to act upon the issued notice. The failure to comply with removal directives constituted inaction, warranting court intervention.
Issues: Whether the respondent panchayath is compelled to act on the previously issued notice against the 3rd respondent for unauthorized construction infringing upon public property.
Ratio Decidendi: The court determined that the panchayath has a legal duty to enforce compliance with its own directives regarding the removal of illegal constructions.
Final Decision: The writ petition is disposed of directing the respondent panchayath to remove the unauthorized construction within three months.
J U D G M E N T
The petitioners have approached this Court alleging inaction on the part of the respondent panchayath in removing certain constructions made by the 3rd respondent, which, according to the petitioners, were made encroaching upon the public road violating all rules.
2. The petitioners allege that the aforesaid construction prevents free flow of traffic as well as parking of autorikshaws owned and driven by them with valid permits at Kombanamuri Junction, Arookutty Grama Panchayath. The petitioners produced Ext.P1 photo series to show the encroachments made by the 3rd respondent to the public road. According to them, the construction is made violating all rules. The 1st respondent, as per Ext.P6, informed the 7th petitioner that the building belonging to the 3rd respondent had been numbered on the basis of Section 220(b) of the Panchayath Raj Act ; and steps have already been initiated from their side to remove the illegal encroachment made by the 3rd respondent. The 1st respondent subsequently issued the report contained in Ext.P7, wherein it is stated that no new construction has been made by the 3rd respondent and whatsoever is constructed, is much prior to the implementation of the Building Rules in the panchayath; and being satisfied with the reply submitted by the 3rd respondent, the committee of the panchayath decided to keep in abeyance all further proceedings against him. The petitioners allege that the said report had been submitted by the 1st respondent under the influence exerted by the 3rd respondent. The petitioners submitted Ext.P8 representation before the 2nd respondent requesting two prayers, i.e., to remove the unauthorized construction made by the 3rd respondent and also to cut and remove the trees causing traffic problems. Taking into account the requests made by the petitioners, the 2nd respondent conducted an enquiry through the Tahsildar, Cherthala and based on a report No.H5-28343/2009 dated 10.02.2009, gave a reply to Ext.P8 representation, informing the petitioners that the 3rd respondent had violated the building rules and without leaving the requisite 3 meters from the main road, illegal constructions have been made and the 1st respondent was directed to remove the same. It was also directed to remove the trees causing traffic problem by the 5th respondent. The petitioners' grievance is that though Exts.P9 & P10 are issued as early as in January, 2010, till date, no action is seen as taken either by the 1st respondent or by the 5th respondent to comply with the same. Hence, this writ petition.
3. In the counter affidavit filed by the 3rd respondent, it is contended as follows;
The 3rd respondent has given land to the panchayath for construction of a road earlier at free of cost and thereafter, the 5th respondent has constructed the said road.
After making the road, some land was left in front of the shop building of the 3rd respondent. The temporary sunshade is made over this portion of land in order to prevent the sunlight. The shop building has already been numbered and there is no illegal encroachment on the part of the 3rd respondent as alleged. According to him, the temporary construction was made much earlier. According to the 3rd respondent, since the land for the road was freely surrendered, no person can claim any right over the said land. The temporary sunshade was for the safety of the public and customers without any disturbance to the traffic system.
He further contended that the portion of land beyond the road is being used unauthorizedly for the parking of the petitioners' autorikshaws without any permit, licence or authority.
4. The petitioners have filed a reply affidavit to the counter affidavit filed by the 3rd respondent.
5. The 2nd respondent also filed a counter affidavit contending as follows;
A petition was filed before the RDO, Alappuzha by A.S.Moosa, Padinjare Anjukandam & others, who were autorikshaw drivers, who happened to park their vehicles at Kombanamury Jn. a
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