IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 WP(C).No. 32610 of 2003(F) --------------------------------------- PETITIONER(S): ----------------------- SABIRA UMMER, W/O.M.A.UMMER, IRFAN MANZIL, ALAMPADY, MUTTATHODY VILLAGE, KASARAGOD. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): --------------------------- 1. THE SECRETARY, CHENGALA GRAMA PANCHAYATH, KASARAGOD DISTRICT. 2. P.MUHAMMED HAJI, S/O. IBRAHIM, ALAMPADY.P.O., MUTTATHODY VILLAGE, KASARAGOD DISTRICT. 3. P. ABDULLA HAJI, -DO- R1 BY ADV. SRI.SHIRAZ ABDULLA SRI.IMTHIYAZ AHAMED R2 & R3 BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.32610/2003 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT, DT. P2 COPY OF THE PHOTOGRAPH OF SHOWING THE OLD DIALAPIDATED BUILDING BEFORE ATTEMPTED RE-CONSTRUCTION BY RESPONDENTS 2 & 3. P3 COPY OF THE PHOTOGRAPH OF SHOWING THE ATTEMPTED RE- CONSTRUCTION BY RESPONDENTS 2 & 3 AFTER DEMOLISHING THE WALLS. P4 COPY OF THE PHOTOGRAPH OF SHOWING THE ATTEMPTED RE- CONSTRUCTION BY RESPONDENTS 2 & 3 AFTER DEMOLISHING THE WALLS. P5 COPY OF THE PHOTOGRAPH OF SHOWING THE ATTEMPTED RE- CONSTRUCTION BY RESPONDENTS 2 & 3 AFTER DEMOLISHING THE WALLS. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE NOTICE DATED 1/11/2003. R2(A) COPY OF THE DOCUMENT NO.152 OF 1953 IN KANNADA. R2(B) COPY OF THE TRUE ENGLISH TRANSLATION OF DOCUMENT NO.152 OF 1953. R2(C) COPY OF THE BUILDING TAX RECEIPT FOR THE YEAR 99-2000. R2(D) COPY OF THE BUILDING TAX RECEIPT FOR THE YEAR 2001-2002. R2(E) COPY OF THE BUILDING TA RECEIPT FOR THE YEAR 2002-2003. /TRUE COPY/ P.A.TO.JUDGE sts C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.32610 OF 2003 -------------------------------------------- Dated this the 7th day of January, 2011 JUDGMENT This writ petition has been filed mainly with a prayer to issue a writ of mandamus commanding the first respondent to stop the illegal construction carried out by respondents 2 and 3 in Re-survey No.250/5 of Muttathody Village in Kasaragod Taluk in ward No.6 of Chengala Panchayath. The further prayer is for issuance of a writ of mandamus directing respondents 2 and 3 not to construct any building in Re-survey No.250/5 in Muttathody village without obtaining approved plan or licence and in violation of the building rules and also for directing the first respondent to remove the illegally constructed building or portion of the building constructed in total violation of the Building Rules. 2. According to the petitioner, the 2nd and 3rd respondents are having only ½ cent of property in Re-survey No.250/5 and they are carrying out construction thereon in total disregard to the statutory requirements under the Building Rules. It is submitted that in the aforementioned property that situated on the south eastern corner of the petitioner's property, there was W.P.(C) NO.32610/2003 2 an old dilapidated building belonging to respondents 2 and 3. According to the petitioner, on 10.10.2003, the respondents have demolished the above mentioned old building and without obtaining approval of plan and obtaining licence, started a new construction in the said property. On 15.10.2003, the petitioner submitted a complaint before the first respondent pointing out the above alleged activities of respondents 2 and 3. It is alleging inaction on the part of the first respondent even after the receipt of Ext.P1 and at the same time, the action on the part of the respondents 2 and 3 in continuing with the construction that this writ petition has been filed with the above mentioned prayers. 3. A counter affidavit has been filed in this writ petition by the first respondent Panchayath. Respondents 2 and 3 have jointly filed a separate counter affidavit. On 21.10.2003, this Court passed an interim order directing the first respondent to inspect the site of the disputed construction and to issue appropriate orders prohibiting construction within two weeks from the date of receipt of a copy of the order in case it was made without obtaining approved plan or licence and in violation of the statutory requirements regarding distance. Along with the counter affidavit, Ext.R1(a) has been produced. Ext.R1(a) would reveal that a W.P.(C) NO.32610/2003 3 notice was issued to respondents 2 and 3 requiring them to stop construction of the building violating the Building Rules with immediate effect. There is nothing in the said counter affidavit filed by the first respondent which would suggest that the construction was being effected in violation of the statutory requirements. It is not discernible from the counter affidavit as to what were the statutory requirements which were to be complied with in terms of then existing provisions of law and which respondents 2 and 3 fail to comply with. In fact, a perusal of Ext.R3(a) would reveal that it was without looking into those aspects that the said order was passed solely in purported compliance with a view to comply with the directions of this Court. However, a perusal of the order issued by this Court on 21.10.2003 would reveal that while complying with the directions thereunder, the first respondent had failed to consider the issue in the right perspective. Before issuing stop memo, the first respondent should have considered the issue whether the petitioner has violated any of the statutory requirements. Apparently, the stop memo has been issued without considering those aspects and the first respondent did not mention the specific violation. 4. A counter affidavit has been filed in this Writ Petition by W.P.(C) NO.32610/2003 4 respondents 2 and 3. In the said counter affidavit, they have specifically contended that there is no basis for the statement of the petitioner that the property in question is having only an extent of ½ cent. In troth, it is having an extent of 1.5 cents according to them. That apart, they have specifically stated thereunder that what was being done by them was only a repair to the already existing building by changing its rafters and reepers. In short, according to them, it was only a repairing and not a reconstruction. However, the petitioner has produced Exts.P2 to P5 to contend that virtually a reconstruction was going on. However, it is evident that after the issuance of Ext.R1(a), no construction was carried out in the property. Ext.R1(a) was issued as early as on 1.11.2003 and admittedly, no further construction was effected hitherto. The apprehension of the petitioner is that respondents 2 and 3 would make an attempt to make further construction thereon in the absence of any order restricting them to make any further construction thereon. Obviously, the contention of the petitioner is that since the extent of the property in question is only ½ cent, respondents 2 and 3 are not legally entitled to make any construction whatsoever thereon. As already noticed hereinbefore, respondents 2 and 3 are the owners in absolute possession of W.P.(C) NO.32610/2003 5 the property in dispute. Ext.R2(b) which is the true translation of Ext.R2(a) would reveal that the said property is having an extent of 1.5 cents. The question is whether respondents 2 and 3 who are admittedly the owners in absolute possession of the aforesaid property could make any further construction thereon and whether their action hitherto was a construction disregarding the building rules and without obtaining an approved plan of licence. There cannot be any doubt with respect to the position that as long as they continue to be the owners of the said property, they are having the legal right to effect construction thereon. True that any such construction can be effected only in accordance with the relevant provisions of law on the subject matter. Therefore, it is made clear that if respondents 2 and 3 are desirous to effect any construction thereon, it will be open to them to approach the first respondent with proper application under relevant provisions of law. The same has to be considered by the first respondent in accordance with law. In other words, Ext.R1(a) which was passed in terms of the interim order passed by this Court on 21.10.2003 will not stand in the way of consideration of any such application in accordance with law. It is made clear that this order cannot be taken to mean that respondents 2 and 3 are at liberty to effect W.P.(C) NO.32610/2003 6 reconstruction under the guise of this order. It will be open to the first respondent to consider the question whether any illegal new construction was effected in the property in question by respondents 1 and 2 and if the answer is in the affirmative, it will be open to the first respondent to take appropriate action, in accordance with law. The Writ Petition is disposed of accordingly. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.32610/2003 7 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.32610/2003 8