Only buildings existing at the time of the law's enforcement can seek exemption; new buildings must comply with setback requirements.

JUDGMENT

The petitioner, who is a resident of Kottopadam Grama Panchayat, had preferred a complaint before the respondent Panchayath, against a construction that was put up by the 2nd respondent, pointing out that the said construction had violated the provisions of Section 220 (b) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as “the Act” for short) inasmuch as the mandatory set back of 3 metres from the boundary of the State Highway had not been provided by the said respondent. Initially, the petitioner had preferred a complaint before the Ombudsman for Local Self Government Institutions, against the inaction on the part of the Secretary of the respondent Panchayat, in taking any action on the complaint preferred by the petitioner. Based on the directions of the Ombudsman, the Secretary proceeded to consider the complaint preferred by the petitioner and thereafter, passed an order stating that, inasmuch as the 2nd respondent had completed the construction prior to the coming into force of Section 220 (b) of the Act, there was no merit in the complaint preferred by the petitioner. Against the order of the Secretary of the Panchayat, the petitioner preferred an appeal before the Tribunal for Local Self Government Institutions. The Tribunal, by Ext.P18 order, rejected the appeal preferred by the petitioner, after finding that the 2nd respondent had indicated that, a foundation of the building in question had been constructed in 1993 itself, although the construction of the building itself was completed only in 1995. The Tribunal found that, inasmuch as the provisions of the Act came into force in 1994, the provision to Section 220 (b) of the Act would apply only in respect of constructions that were effected thereafter, and therefore, the construction put up by the 2nd respondent would not be hit by the prohibition contemplated under Section 220 (b) of the Act. The Tribunal also took into account the fact that, a building number had already been assigned to the building in 1996 and, although the construction of the building was completed only after 1994, it could not be said that the building offended the provisions of Section 220 (b) of the Act. In the writ petition, the petitioner impugns Ext.P18 order of the Tribunal, inter alia, on the contention that the said order passed by the Tribunal proceeds on an erroneous interpretation of the provisions of the Act and in particular Section 220 (b) of the Act.

2. I have heard the petitioner, who appears as party-in-

person, the learned Standing Counsel appearing for the respondent Panchayat, the learned counsel appearing for the 2nd respondent, as also the learned Government Pleader appearing for the official respondents.

3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that through the provisions of Section 220 (b) of the Act, 1994, there was a prohibition that was introduced, against the construction of any building or structure other than a compound wall, in any land abutting any National Highway, State Highway, District roads or any other roads notified by the Village Panchayat, within a distance of three metres from the boundary of the land abutting the road. By a proviso to the said provision, it was clarified that, the said limit of three metres would not be applicable for the construction of the 1st floor or 2nd floor or both upon a building, existing on the date of coming into force of the Act. A reading of Section 220 (b) would, therefore, clearly indicate that, on and with effect from the date of commencement of the Act, 1994, there cannot be a construction of any building or structure, other than those expressly permitted within a distance of three metres from the boundary of land abutting any National Highway, State Highway, District roads or other roads notified by the Village Panchayat. The only exemption granted to a construction is, with regard to the construction of a 1st flo