Petitioner has approached this Court seeking to quash Exts.P10 and P11. Ext.P10 is a communication issued by the Assistant Engineer, PWD Roads Section to the Secretary, Kadapra Grama Panchayath inter alia stating that since the road width in front of the petitioner's property is only 6.90 meters and 7.30 meters and there is delay on the part of the revenue department in finalising the proceedings within a reasonable time, the petitioner shall be permitted to construct compound wall by leaving road width of 8 meters, that is 4 meters from the middle of the road margin. On this basis, the Grama Panchayath, by their intimation dated 19/06/2014 has informed the petitioner by way of Ext.P11 that boundary wall is to be constructed by the petitioner by leaving 4 meters from the middle of the road margin. These proceedings came to be issued by respondents 6 and 5 respectively on the basis of the application submitted by the petitioner for constructing a compound wall.
2. The case of the petitioner is that there was a dispute relating to the right in respect of certain item of property belonging to the petitioner. He had filed a suit O.S.No.786/2001 before the Munsiff Court, Thiruvalla seeking for declaration of title and possession of plaint schedule property. The plaint schedule is described as 21.180 cents of land in Sy.Nos.208/24 and 208/24 of Kadapra village. The suit was decreed in favour of the petitioner. The decretal portion of the judgment reads as under:
“In the result, suit is decreed declaring the plaintiff's right and possession over the plaint schedule property and restraining the defendants from trespassing into the plaint schedule property or from destroying the northern boundary fence or from committing any mischief in the plaint schedule property by permanent prohibitory injunction with cost.”
3. While decreeing the suit, the learned Munsiff has also taken into consideration the Commission Report produced as Ext.C1 and plan produced as Ext.C1(a). The relevant portion of the said judgment reads as under:
“Ext.C1 commission report and C1(a) plan clearly shows the property in the possession of the plaintiff. In C1(a) plan the plaint schedule property is identified as plot 'A B C K D Q P F G H I'. The fence separating the plaint schedule property and the northern P.W.D road is shown as P Q line in C1 (a) plan. Ext.C1 report of the Commissioner further shows that it is possible to clearly identify the plaint schedule property from the northern P.W.D road. The Commissioner also reported the existence of a fence separating the plaint schedule property from the northern P.W.D road.”
4. It is submitted by the petitioner that pursuant to the decree passed in the above case, there cannot be any dispute regarding the right of the petitioner in respect of the land aforesaid. Subsequently, since sketch had to be prepared through the revenue authorities as per the directions issued by this Court in W.P.C.No.7482/2013, appropriate measures had been taken and Ext.P6 had been issued by the Additional Tahsildar inter alia stating that revised sketch has been prepared based on the judgment and decree which has come into effect. It is, under these circumstances, that the petitioner submitted an application for constructing a boundary wall which ultimately resulted in the impugned orders. The learned counsel for the petitioner also submits that as held by the Munsiff Court in the judgment there is an existing boundary for the property and there is no difficulty in demarcating the boundary with PWD road.
5. No counter affidavit has been filed by the Panchayath.
6. The learned Government Pleader, on instructions, would submit that this order came to be issued on account of the fact that if the boundary wall is constructed, the width of the road will be reduced. Learned counsel appearing on behalf of the Panchayath submits that unless the boundary is fixed in accordance with the procedure prescribed, it is not possible for them to issue the building permit. As matters stand now, I am not concerned with the reasons stated in Exts.P10 and P11.
7. Apparently, the issue is not whether the PWD road had width of 8 meters or less in the area, whereas the issue is whether a boundary wall could be constructed to separate the petitioner's property from the PWD road portion. As far as the petitioner is concerned, he has got possession in respect of the plaint schedule property as per the decree in O.S.No.786/2001 and the recitals with reference to the Commission Report made by the Civil court.
8. Under such circumstances, there cannot be any dispute regarding the petitioner's title over the property or his possession in respect of that area. Merely for the reason that there will be a reduction in the road width, it cannot be concluded that the petitioner is not entitled to construct a boundary wall to separate his property from the PWD road.
9. Learned counsel for the Panchayat, however, would say that they were unaware of the actual boundary between PWD road and the petitioner's property. The document produced by the petitioner, which includes the judgment in which Advocate Commissioner's plan is relied upon, clearly indicates the boundary of the property of the petitioner. Unless the judgment is set aside by due process of law or PWD authorities acquire the land of the petitioner for widening the road, it may not be possible for any authority to take a different view. In the said circumstances, it is not possible to agree with the reasons stated in Exts.P10 and P11 and this matter requires re-consideration at the end of the Grama Panchayath.
In the result, this writ petition is disposed of as under:
i) Exts.P10 and P11 are set aside.
ii) Petitioner shall submit a copy of the judgment along with the Commissioner's report and plan before the Panchayath who shall issue appropriate orders permitting the petitioner, if he is otherwise eligible to construct the boundary wall in the line marked by the Advocate Commissioner.
Iii) This shall be done within a period of one month from the date of receipt of a copy of this judgment.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr