1. Even though the captioned writ petitions are to be considered under different factual circumstances, petitioner in both the writ petitions are one and the same and the issues have a co-relation and therefore, I heard them together and propose to pass a common judgment. WP(C)No.26573/2013 is filed seeking the following reliefs:-
"(i) Call for the records of this case and issue a writ of prohibition restraining the respondents from undertaking any repair or maintenance work in the petitioner's private road in Block 95, Re Survey Nos.351/1, 351/3, 352, 353, 354 and 355 of Chungathara Village;
(ii) Issue a writ of Mandamus directing the respondent to remove the obstructions caused by them in the petitioner's private road in Block 95, Re Survey Nos.351/1, 351/3, 352, 353, 354 and 355 of Chungathara Village."
2. Material facts for the disposal of the writ petition are as follows:-
Petitioner is running an English Public School under the name and style "Good Shepard Modern English School" within the limits of Chungathara Village, Malappuram District, in a property having an extent of 4.2280 hectares situate in Survey Nos. 351/1, 351/3, 354/7 and 354/11 of the aforesaid village. According to the petitioner, the property of the petitioner is situated away from the public road namely Palunda-Palundakunnu road and there is no road facility available to the above property other than petitioner's private road. There is no Panchayath road anywhere nearby or leading to the property of the petitioner, which according to the petitioner is certified by the Village Officer, Chungathara as per Exts.P2, P2(a) and P2(b). Petitioner has also produced Ext.P3 google map of the property of the petitioner.
3. Matters being so, the first respondent that is the Secretary of the Chungathara Grama Panchayath started asserting right over the private road leading to the petitioner's school stating that it is a public road. The case of the petitioner is that, petitioner is not so far given any notice with respect to any acquisition made by the panchayath in respect of the road or for declar
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ation of the said road as a public road. More over, Section 169 read with Section 178 of the Kerala Panchayath Raj Act prohibits acquisition of private road other than by way of private purchase or free surrender. Thereupon, petitioner has submitted Ext.P4 objection against alleged illegal interferences made by the respondents. It is submitted that, consequent to raising of the said objection , first respondent has even rejected the application submitted by the petitioner for building permit stating that, proposed additional constructions in the school are on the side of the public road, which is the subject matter of consideration in the connected writ petition also challenging the order of the Tribunal for Local Self Government Institutions. So much so, on 28.10.2013, Panchayath have blocked the above road preventing the petitioner from using the same, evident from Ext.P5 photographs. The schools buses and the vehicles of the teachers and staff were prevented from entering even into the premises of the school and the students and staff were forced to walk more than 1 km to reach the school leaving their vehicles in the highway. Even though, petitioner has made request to remove the obstruction it was replied that the objections are intended to facilitate the maintenance work to be carried out by the Panchayath. According to the petitioner, respondents are not competent to undertake any maintenance or repair work in a private road and the present obstructions are caused with the intention to harass the petitioner in order to compel the petitioner to concede the demands of he respondents to surrender the private road to the Panchayath. Even though representation was forwarded to the first respondent in that regard, first respondent has not even cared to receive the same. Apart from the same, it is contended that, the members of the Panchayath Committee are colluding with the real estate agents in order to boost up the property value situated by the side of the private road.
4. Respondents have filed a counter affidavit refuting the allegations, claims and demands raised by the petitioner. Among other contentions it is stated that, petitioner has purchased the property in the year, 2004. During 2005 petitioner has filed WP(C)No.19220/2005 claiming right on the alleged road and raising typical contentions raised in this writ petition, in which respondents have filed Ext.R1(a) counter. The said writ petition was disposed of as per Ext.R1(b) judgment dated 19.1.2006 recording that a civil suit is pending before the Subordinate Judge's Court, Manjeri, and directed the Sub Judge to dispose of the suit within 4 months from the date of receipt of the judgment. Therefore, it is contended that, petitioner has wilfully suppressed the above said aspect in the said writ petition, which is causing serious repercussion. It is also pointed out that, in the writ petition civil disputes pending between the petitioner and the Panchayath and other neighbours are not referred to. While so, the suit filed by the petitioner, namely, OS 94/2006 was dismissed by the learned Sub Judge as per the judgment dated 22.6.2007. Petitioner has preferred an appeal before the District Court as AS No.48/2007 and it was remanded to the trial court as per judgment dated 14.4.2015. After remand order, the suit was dismissed as per judgment dated 21.8.2013 with cost. These writ petitions are filed on 29.10.2013 and 9.9.2013 respectively. Therefore, it is the case of the respondents that, these material facts are suppressed in the writ petition disabling the petitioner from securing any reliefs exercising the discretionary power conferred under Article 226of the Constitution of India.
5. It is further submitted, the road in question is not a private road and it is a public way used by the public for more than 48 years. The way in question, namely, Palunda-Palundakunnu-Kottepadam road is included in the register of the Panchayath and its length is 1 km and the width is 3 meters. The above fact was communicated to the Village Officer by the first respondent as per Exts.R1(d) and R1(e) communications dated 30.05.2005. In view of Exts.R1(d) and R1(e), Ext.P2 series of letters issued by the petitioner to the Panchayath have no relevance, and the claims raised thereunder are incorrect. That apart it is submitted that, the petitioner has not produced any documents to establish a fool proof case before this Court that the road in question is a private road belonging to the petitioner. So also it is stated, property of the petitioner is having boundary wall and the public way is going outside the property so- bounded. More over, in the assignment deed of the petitioner itself the way is shown as a public way.
6. It is also pointed out that various persons have filed suit against the petitioner before the civil court and got declaration against the petitioner. Further the subject matter is pending consideration before this Court in a second appeal filed by the petitioner as RSA No.263/2018. That apart it is submitted, respondents have received a mass petition from the public including the petitioner to take over the road. It was thereupon that the petitioner and others had decided to give way to the public as per the decision of the Committee dated 5.2.2003, evident from R1(f). Petitioner has entered into an agreement with one M T John in respect of the above said way in the year 1997, evident from Ext.R1(g). More over, petitioner himself has admitted that, the above road is a public road and he has contributed Rs.300/- to the road protection committee on 4.7.2004, evident from Ext.R1(h). Ext.R1(h) contains the signature of the petitioner as serial No.10. That apart it is pointed out that, the report of the Advocate Commissioner submitted before this Court is a distorted version and therefore, the same cannot be accepted. That apart, the public road was a mud road at the time of inspection and the way to the school is a tiled one. That part other material aspects were recorded by the Advocate Commissioner. Again it is submitted that, in OS No.94/2006, the Advocate Commissioner has drawn a report, evident from Ext.R1(i), which was prepared with the help and assistance of the Taluk Surveyor. The Advocate Commissioner there found that, the road is existing prior to 1990. That apart it is submitted that, petitioner is accused in 7 criminal cases and one of the complaints submitted against the petitioner is produced as Exts.R1(j). Ext.R1(k) is a decision of the Grama Sabha of the 7 th Ward of the pancayath dated 5.12.2013 stating that petitioner is a public nuisance. That apart it is stated that, panchayath have conducted repair works of the Palunda-Palundakunnu road as per decision No.18 dated 5.8.2013, evident from Ext.R1(i), allotting an amount of Rs.10,000/- and Rs.35,000/- during the financial years 2013- 14 and 2014-15 respectively, evident from Exts.R1(m) and Ext.R1(n) respectively. The Village Officer has inspected the public road along with the Secretary of the Panchayath on 20.1.2014 and has submitted a plan and report, evident from, Exts.R1(p) and Ext.R1(q) and in accordance with the report, 35 families are using the road in question. Therefore, according to the respondents there are no justifiable circumstances made out by the petitioner enabling this Court to provide the reliefs as is sought in the writ petition.
7. A reply affidavit is filed reiterating the stand adopted in the writ petition and producing additional documents, namely, Ext.P6 basic tax register and Ext.P7 topography map published by the survey authority in the year 1956. Further contentions are advanced by the petitioner to the effect that, there is a parallel road available to all the families of Palundakunnu and parallel to the main State Highway 212. That part it is submitted that the criminal cases filed against the petitioner have all ended in acquittal.
8. So far as WP(C)No.22531/13 is concerned, petitioner seeks to quash Ext.P2 order passed by the second respondent, that is the secretary of the Grama Panchayath, whereby, permission sought for by the petitioner to construct first floor was declined on the ground that, there is no available space between the property and the road so as to satisfy the provisions of Rule 28 of the Kerala Panchayath Building Rules, 2011, and the order passed by the Tribunal affirming the order passed by the Panchayath as per Ext.P2. The case projected by the petitioner thereunder is that, the construction of the basement of the building was completed in the year, 2008 itself, in order to accommodate the school conducted by the Trust. According to the petitioner, entire construction was carried out and has submitted an application on 3.9.2012 seeking regularization of the construction and for issuing permit for the construction of the ground floor. However, the same was declined stating that, it is not satisfying the requirements of Rule 28 of Rules, 2011. Being aggrieved, petitioner has preferred appeal before the Tribunal for Local Self Government Institutions, and the Tribunal as per Ext.P3 order dismissed the appeal holding that the decision taken by the second respondent is legally correct.
9. A detailed counter affidavit is filed by the respondents in the said writ petition also justifying the stand adopted by the Secretary in Ext.P2 order. That apart it is pointed out that, the distance between the road and the building is only 2.20 meters, whereas, the requirement under Rule 28 is 3 meters. Other contentions are also raised, which are akin to the contentions raised by the petitioner in the connected writ petition. The sum and substance of the contention is that, petitioner has not made out any case so as to interfere with the findings of the Tribunal.
10. I have heard the petitioner appeared in person, learned standing counsel appearing for the respondents and perused the pleadings and documents on record.
11. So far as WP(C)No.26573/2013 is concerned, it is a dispute with respect to the right over the road. According to the petitioner, it is a private road absolutely within the ownership of the petitioner, and the petitioner has not surrendered the same to the Panchayath enabling the Panchayath or the public to maintain and use the road, respectively. The main reliance placed by the petitioner is on Ext.P3 google map, Exts.P6 and P7 extracts of BTR and the map prepared by the survey authorities to establish that, there is no road as per BTR as well as the map prepared by the statutory authority. When petitioner was confronted with the documents produced by the respondents along with the counter affidavit, wherein, petitioner's signature are also available, at the first flush petitioner stated that, those are all fabricated documents and later, retracted from the said contention and submitted that, the road that is referred to in Ext.R1(f) is a different road, and therefore, the same has no bearing to the issue in question. It is an admitted fact that Ext.R1(f) contains the signature of George Philip K, as serial No.3. Even though petitioner has a case that, that relates to a different road, petitioner has not produced any documents or put forth any pleadings disputing the contents of the said documents. According to the panchayath, panchayath has repaired the roads expending the funds of the panchayath, consequent to the request made by the public including the petitioner. Panchayath is also relying on the report of the Advocate Commissioner submitted in OS No.94/2006, and submitted that, more than 35 families are using the road in question for their ingress and egress. Having evaluated the situation I am of the considered opinion that the documents produced by the Panchayath shows that the road is maintained by the Panchayath and it is included in the road register, evident from Ext.R1(d) dated 30.05.2005 and Ext.R1(e) extract of the road register. It is also clear that, petitioner has instituted a suit raising ownership of the road in question, which was dismissed as per Ext.R1(c)dated 21.8.2013, and in the suit proceedings the Secretary of the Panchayath along with other private persons were parties. However, the decree passed in the said suit was suppressed by the petitioner in the writ petition. There is no case for the petitioner that, petitioner has instituted any further proceedings against the said judgment and decree. Therefore, in my considered opinion, first and foremost, there is material suppression on the part of the petitioner with the intention of securing enabling orders from this Court. If at all assuming that the road is belonging to the petitioner in view of the disputed factual circumstances this Court will not be in a position to adjudicate the issue. In that regard I am reminded of the judgment of the Apex Court in Swati Ferro Alloys Private Limited v. Orissa Industrial Infrastructure Development Corporation (IDCO) and others [(2015)4 Supreme Court Cases 204] wherein, it was held that, matters involving disputed questions of fact about the ownership of the land in question could not be decided in a writ petition under Article 226 of the Constitution of India, and therefore, the Highcourt was justified in dismissing the writ petition and directing the parties to approach the civil court for resolving for such disputes. Therefore, it is significant to note that, even though such an opportunity was provided to the petitioner by this Court in the earlier round of writ petition, petitioner has not availed the said opportunity also. It is also clear from the pleadings put forth by the petitioner that, if at all the petitioner has any case, the same will have to be deciphered in a properly adjudicated proceedings, by taking evidence. This Court is not also expected to make declarations with respect to the right of the petitioner by merely going through the photocopy of the documents produced along with the writ petition and the reply affidavit. Merely because, the property is not included in the BTR and the map prepared by the survey authority as a road, it is not a conclusive proof to arrive at a finding that there is no road existing. More over, it is the case of the petitioner that, there is a road existing and if Ext.P3 google map is appreciated, even if it is a private road it will be available in the google map. More over, it is clear from the counter affidavit filed by the panchayath producing the counter affidavit filed in WP(C)No.19220/2005, evident from Ext.R1(b) judgment rendered by this Court, petitioner has sought for a writ of mandamaus for- bearing the respondent panchayath by taking over the private road belonging to the petitioner. The said relief was not granted, however, the writ petition was disposed of leaving open the liberty of the petitioner to take up all contentions in OS No.94/2006, which was pending before the Subordinate Judge's Court, Manjeri. But, petitioner failed to prosecute the same, consequent to which, a decree dismissing the suit was passed by the Subordinate Judge's court. Therefore, in my considered opinion, the subject issue raised by the petitioner in this writ petition claiming rights over the road in question is hit also by the principles of resjudicata as provided under Section 11 of the Code of Civil Procedure, which is well settled, by now, applies to proceedings under Article 226 of the Constitution of India. I am also of the opinion that the principles of might and ought rule enunciated under Explanation IV to Section 11 C PC will come into play disabling the petitioner to secure any relief by raising contentions which were available in the earlier round of litigation. More over, the principles of Order 2 Rule 2 CPC also applies since all the contentions were available to the petitioner when the petitioner instituted earlier writ petition as well as the suit proceedings. Having not raised all the contentions available theN, petitioner is not at liberty to rake up the said contentions in the present writ petition. Up shot of the above discussion is, petitioner is not entitled to secure any reliefs as is sought for in WP(C)No.26573/2013, accordingly it is dismissed.
12. I have evaluated the orders passed by the secretary of the panchayath as well as the Tribunal in the connected writ petition. In Ext.P2 order it is stated that, the distance between the building of the petitioner and the road is only 2.20 meters where as as per Rules 28(1) of Rules, 2011 it should be 3 meters. The said legal and factual circumstance was taken into account by the Tribunal, and also considered elaborately, after going through the files leading to the issue of Ext.P2 order and held that, the building constructed by the petitioner cannot be regularised on account of the violation of the Building Rules, 2011 pointed out above. However, from the pleadings put forth by the petitioner what I could gather was that, the building was constructed as early as in the year, 2007. From no where I could find out whether at that point of time the Kerala Municipality Building Rules was made applicable to the Grama Panchayath in question. The Kerala Panchayath Building Rules has come into force only in the year, 2011. Therefore, if the Kerala Municipality Building Rules, 1999, was not made applicable to the panchayath, when the petitioner carried out construction in the year, 2007, there was no requirement of maintaining 3 meters distance between the building and the road in question. It is also evident from the order of the Tribunal that the said aspect is presumed by the Tribunal without any prima facie material on record, on the ground that, petitioner has submitted an application for regularization of the construction. These things are not clear either from Ext.P2 or Ext.P3 order passed by the Tribunal. However, it is stated thereunder that, construction was carried out in the year, 2007. In that view of the matter I am of the considered opinion that, panchayath has to reconsider the issue, as to whether the construction of the building was completed by the petitioner in the year 2007, and before the introduction of the Kerala Panchayath Building Rules, 2011 or whether the Kerala Municipality Building Rules, 1999 was applicable to the Panchayath, during the said period. Therefore, I am of the considered opinion that the petitioner is entitled to succeed in the said writ petition.
13. Accordingly, W.P.(C)No.22531/2013 is allowed, Exts.P2 and P3 orders of the Secretary of the Panchayath and the Tribunal are set aside, and there will be a direction to the secretary of the panchayath to re-consider the building permit application submitted by the petitioner, and attain finality, at the earliest, and at any rate, within two months from the date of receipt of a copy of this judgment, taking into account the observations and findings contained above. In that process the secretary shall specify whether regularization is required at all if the construction was carried out before introduction of Rules, 2011, and if so take appropriate action to issue occupancy and number the building in accordance with law, bearing in mind also that petitioner has surrendered the property for the road in question