Party Contesting That Private Land Was Voluntarily Surrendered Has Burden To Establish The Same: Kerala High Court

The Kerala High Court on Tuesday reiterated that if the Panchayat/ Municipality or any contesting party takes a stand that a land was voluntary surrendered, the burden would be on the said Panchayat/Municipality or contesting party to establish such voluntary surrender.

Justice Anu Sivaraman observed that if there is any case of voluntary surrender of any property by the petitioner or his predecessors-in-interest, it would be for the contesting party respondents to prove the same before the appropriate authorities. 

I am of the opinion that the respondents cannot contend that the petitioner cannot construct a compound wall in accordance with the permissions granted to him. In case the contesting party respondents have any case that there is a voluntary surrender of any property by the petitioner or his predecessors-in-interest, it would be for them to produce the same before the appropriate authorities and seek orders interdicting the construction. 

The Writ Petition was moved by the owner of a property in Kidangoor Village, Kottayam, seeking direction to the Station House Officer to provide adequate and effective protection from respondents 4 to 7 who were hindering the construction of compound wall for his residential property in accordance with the permit and site plan approved by the Secretary, Kidangoor Grama Panchayat (2nd respondent).

The Petitioner is represented by Advocates Vijai Mathew and Joseph Thekkekuruvanal. 

Respondents 4 - 7 submitted that there was a compound wall already in existence separating the petitioner's property from the road in front of it, and it is after demolishing the same that the petitioner is attempting to construct a new wall encroaching into the Plamoodu-Mundackal public road. It was also submitted that since the petitioner had made attempts to construct a compound wall encroaching into the public road, a mass representation has been filed before the 2nd respondent.

The Secretary of the Kidangoor Grama Panchayath (2nd respondent) contended that on an application being submitted by the petitioner along with all relevant documents, a building permit and site plan had been issued to the petitioner for constructing the compound wall. It is submitted that on-site inspection, it was found that the width of the Panchayat road in front of the house of the petitioner is 5.8 metres, and the building permit was granted. However, it was also submitted that the details of the subject road were entered in the Asset Register in the year 1994 and thereafter indicate that the road was widened, and the width of the road was increased up to 6 metres in different places.

The petitioner, in the reply affidavit, contended that the width of the road in front of his house and nearby areas is 5 metres and that the said width is specifically shown in the site plan issued to the petitioner by the Panchayat.

Subsequently, the 2nd respondent contended that the statement of the 2nd respondent that the existing road had a width of 5.8 metres in front of the petitioner's property was completely incorrect and that the Panchayat had issued a building permit, taking note of the width of the road as 5 metres. It was further contended that if the width of the road is more than 5 metres, there would be no space to provide a 3-metre setback to the residential building and that the permit granted would then be rendered illegal. 

Relying on the Apex Court decision in Kalyani (dead) through LRs. & Ors. v. The Sulthan Bathery Municipality & Ors. [2022 Live Law (SC) 410], the Counsel appearing for the petitioner, contended that if the Panchayat or Municipality takes a stand that a land was voluntary surrendered, the burden would be on the said Panchayat/Municipality to establish such voluntary surrender.

The Court, after considering the contentions advanced, pointed out that though the respondents contend that the road has been widened to 6 metres, there is absolutely no document of any nature produced either by the 2nd respondent or by the contesting party respondents to show that there has been a widening of the road to an extent of 6 metres.

The Court observed that it is apparent that the petitioner cannot construct any boundary wall encroaching the public roads; however, taking into consideration the permit and site plan issued to the petitioner, the Court opined that the respondents cannot contend that the petitioner cannot construct a compound wall in accordance with the permissions granted to him. If the contesting party respondents have any case that there is a voluntary surrender of any property by the petitioner or his predecessors-in-interest, the burden of proof is on the respondents to prove the same before the appropriate authorities and seek orders interdicting the construction. In the present case, since there are no such documents produced before the Court for proving the same, the Court rejected the contention. 

Thereby, the Court observed that the petitioner is entitled to continue with the construction of the compound wall without encroaching into the public road as it exists today and if the construction of the compound wall is being made as expressly permitted, and without encroaching onto the public road, the respondents shall not obstruct such construction by the petitioner. Further directing the SHO to provide adequate protection for construction if any obstruction is caused.  

However, this will be without prejudice to the rights of the parties to produce evidence to substantiate their contention of voluntary surrender by the predecessors-in-interest of the petitioner before the Panchayat and seek the cancellation of the permit, if such a voluntary surrender is proved, the Court clarified. 

Case Title: Abeyson P John v. Station House Officer & Ors. 

Citation: 2022 LiveLaw(Ker) 549

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