WP(C) No. 5532 of 2012 · Kerala High Court

WP(C).No. 5532 of 2012 (N) APPENDIX PETITIONER(S) EXHIBITS: EXT.P1:COPY OF THE NOTICE DATED 24/11/2011 ISSUED BY THESECOND RESPONDENT TO THE PETITIONER.EXT.P2:COPY OF THE REPLY DATED 1/12/2011 TO EXT.P1.EXT.P3:COPY OF THE PHOTOGRAPHS.EXT.P4:COPY OF THE COMPLAINT DATED 11/1/2012 SUBMITTEDBY THE PETITIONER TO THE THIRD RESPONDENT.EXT.P5:COPY OF THE APPLICATION DATED 24/12/11 SUBMITTEDBY THE PETITIONER TO THE FIRST RESPONDENT UNDER THERIGHT TO INFORMATION ACT.EXT.P6:COPY OF THE REPLY DATED 24/1/2012 ISSUED BY THEFIRST RESPONDENT.EXT.P7:COPY OF THE APPLICATION DATED 31/1/12 SUBMITTEDBY THE PETITIONER TO THE FIRST RESPONDENT UNDER THERIGHT TO INFORMATION ACT.EXT.P8:COPY OF THE REPLY DATED 22/2/12 ISSUED BY THEFIRST RESPONDENT.RESPONDENTS' EXHIBITS: NIL /TRUE COPY/P.A.TO JUDGEAS ANTONY DOMINIC, J. ================W.P.(C) NO. 5532 OF 2012===================Dated this the 25th day of July, 2012J U D G M E N THeard the learned counsel for the petitioner, learned counsel appearing for respondents 1 and 2 and the learnedGovernment Pleader appearing for the 3rd respondent.

Petitioner says that he owns a three storied commercial building situated at Thottilpalam Bypass road, within the jurisdiction of the 1st respondent Panchayat. According to the petitioner, during November, 2011, at the instance of respondents 1 and 2, some persons constructed a retaining wallon the side of the road and thereby increased the height of the road itself. It is stated that, as a result, access from the bypass road to the ground floor of the building is totally blocked. Hemade several complaints for its restoration. There was no response from the Panchayat and that led him to file this writ petition seeking a direction to the Panchayat to restore the condition of the road as it was obtaining prior to November, 2011.

The stand taken by the Panchayat is that the road in question always had the present height and that it was the WPC.No.5532/12:2 :petitioner who removed the retaining wall. It is stated that thereupon the beneficiaries of the road made the repair and thereby restored the road into its original position. In other words, according to the Panchayat, all that has been done is restoration of the road to its original position.

Thus the disputed question to be resolved is whether any additional construction has been made and thereby the height of the road has in fact been increased as complained by the petitioner. Such disputed question of fact cannot be resolved in a proceedings under Article 226 of the Constitution of India. However, if there is substance in what the petitioner contends, he should have his grievance redressed.

With this in mind, I direct that the Deputy Director of Panchayat, Kozhikode, within whose jurisdiction the 1strespondent Panchayat is situated, shall on the production of acopy of this judgment, inspect the site in question with notice to the petitioner and the Panchayat. On such inspection, if the Deputy Director finds that the height of the road was increased asclaimed by the petitioner contrary to the assertions made by the Panchayat, he shall issue appropriate orders for restoration of the WPC.No.5532/12:3 :road to its original position. The inspection shall be conducted and consequential orders as above shall be passed as expeditiously as possible, at any rate within 6 weeks of receipt of a copy of this judgment.