IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 WP(C).No. 19219 of 2010(B) -------------------------- PETITIONER(S): --------------- 1. KURIAN THOMAS, PADAVIL HOUSE, MULAKARAMEDU P.O., KATAPPANA VILLAGE, UDUMBANCHOLA TLAUK,IDUKKI DISTRICT. 2. GRACYKUTTY KURIAN, PADAVIL HOUSE, MULAKARAMEDU P.O.,KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. DR.PAULY MATHEW MURICKEN RESPONDENT(S): --------------- 1. THE KATTAPPANA GRAMA PANCHAYAT, KATTAPPANA, IDUKKI DISTRICT, REPRESENTED BY ITS SECRETARY. 2. THE JUNIOR SUPERINTENDENT, KATTAPPANA GRAMA PANCHAYATH, KATTAPPANA P.O., IDUKKI DISTRICT. 3. THE TAHASILDAR, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 4. TALUK SURVEYOR, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. GOVERNMENT PLEADER FOR R3 & 4 SRI.T.MADHU FOR R1 & 2 SMT.C.R.SARADAMANI FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE ORDER DATED 19.1.2007 IN APPEAL NO.428/2006 OF THE TRIBUNAL EXT.P2-TRUE COPY OF JUDGMENT IN WPC 17907/2007 EXT.P3-TRUE COPY OF PROCEDINGS ISSUED BY THE 4TH RESPONDENT EXT.P4-TRUE COPY OF STATEMENT DATED 26.11.2009 OF THE SECRETARY OF R1 EXT.P5-TRUE COPY OF SKETCH DT.4.12.2009 PREPAREDBY R4 EXT.P6-TRUE COPY OF PROCEEDINGS DT.31.3.2010 EXT.P7-TRUE COPY OF RECEIPT DT.17.4.2010 EXT.P8-TRUE COPY OF BUILDING PERMIT DT.22.4.2010 EXT.P9-TRUE COPY OF PROCEEDINGS DATED 15.5.2010 EXT.P10-TRUE COPY OF REPORT PUBLISHED IN MALAYALA MANORAMA DT.18.5.2010 EXT.P11-TRUE COPY OF REPRESENTATION DT.10.6.2010 SUBMITTED BY THE PETITIONERS BEFORE R1 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 19219 of 2010-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of August, 2010. JUDGMENT The petitioners herein are aggrieved by the stop memo issued by the Panchayat as per Ext.P9 restraining them from proceeding with the construction in any part of the property in R.S. No. 56/2 of Kattappana Village The respective parties own 4.49 cents and 4.25 cents each which is lying as a single compact plot. 2. Later, the petitioners filed an application for constructing a commercial building in the property. It was originally rejected by the Panchayat which was challenged in appeal before the Tribunal for Local Self Government Institutions, Trivandrum in appeal No.428/2006 wherein the Secretary of the Panchayat was directed to take a fresh decision. Ext.P1 is the copy of the order passed by the Tribunal whereby certain further directions were also issued as to how the matter will have to be considered. Since the Secretary failed to comply with the same, the petitioners filed W.P.(C) No.17907/2007, wherein this Court rendered Ext.P2 judgment. Accordingly, steps were taken to survey the properties by the 4th respondent Taluk Surveyor, which was conducted on 26.11.2009 in the presence of the wpc 19219 2 petitioners and the Secretary of the Panchayat. It is averred in the writ petition that after the survey, boundaries were refixed to the satisfaction of both parties and thereafter a sketch was prepared for obtaining building permit and the same was approved by the third respondent. Ext.P5 is the said sketch. Thereafter, a clearance from the Town Planner was also obtained as per Ext.P6. Finally, the Secretary decided to grant permit and the petitioners were directed to remit a sum of Rs.3,340/- which was remitted as per Ext.P7. Ext.P8 is the copy of the building permit granted to the petitioners. This is dated 22.4.2010. 3. It is averred in the writ petition that in the meanwhile, while the Secretary was on leave, the person in charge issued Ext.P9 order, restraining the construction which was published in the newspapers also. The petitioners challenged the same by filing Ext.P11 before the Panchayat and failing to get any action in the matter, this writ petition has been filed. 4. After receiving notice in the writ petition, the Panchayat has appeared through the Secretary and filed a counter affidavit. The judgments rendered in various cases filed by the petitioners are admitted in the counter affidavit. The other details regarding the survey conducted by the Taluk Surveyor and the proceedings thereon are also mentioned in the counter affidavit and in para 7 it is made clear that the permit was issued wpc 19219 3 after the survey and based on Ext.P5 sketch and other documents. Finally, it is stated in para 8 that the Secretary was on leave from 10.5.2010 and the second respondent was holding additional charge of the Secretary of the Panchayat in his absence. During such time two Panchayat Committee members by name O.K. Mathai and Pappa Poomattam approached the President of the Panchayat and demanded to revoke the building permit granted to the petitioners by the Secretary without the approval of the Panchayat committee. They requested the President to convene an urgent meeting on 15.5.2010. It is stated that the Committee took a decision based on which Ext.P9 temporary prohibitory order was issued. It is pointed out that the Panchayat Committee had taken an earlier decision that all applications for building permit shall be issued only after the approval by the Panchayat Committee and that the concerned Ward member should also sign in the plan and then alone permit can be issued. It is pointed out by the Secretary that this amounts to interference with the powers and functioning of the Secretary. It is also pointed out that the second respondent brought the lack of authority of them to the Panchayat Committee, but certain members opposed it and according to them, only after approval of the Committee, the Secretary can act under the Building Rules and accordingly Ext.P9 memo was issued. Though Ext.P11 was received, the Committee wpc 19219 4 was not willing to examine the request therein. 5. Evidently, going by the Building Rules, the Secretary alone is the authority to issue the permit. The Committee of the Panchayat can only consider the appeals from certain orders of the Secretary as provided in the Act. The statutory functionary being the Secretary, it cannot be insisted that any decision by the Secretary can be implemented only after approval by the Panchayat Committee. When the provisions of the Act are clear and the rules also are specific that the Secretary has to consider the application for building permit, unless and otherwise the relevant provisions of the Act or Rules specifies that it should be with approval of the Committee, there cannot be introduction of any new procedure as now insisted by certain members of the Panchayat Committee. It will be ultra vires the provisions of the Act and the Rules, which cannot be upheld at all. 6. Herein, after a long drawn out legal proceedings, finally by Ext.P8 building permit was issued . It is not the case that anybody has challenged Ext.P8 in any proceedings. The petitioners are entitled to construct the building in terms of Ext.P8 and it cannot be prohibited by the Committee of the Panchayat without authority. Even the observation in Ext.P9 that there are certain disputes, is not correct in the light of the survey and measurements already undertaken culminating in Ext.P5, which is not under wpc 19219 5 challenge. Learned Govt. Pleader submitted that no objections are remaining in the said matter before respondents 3 and 4. 7. In that view of the matter, the writ petition is allowed. Ext.P9 is quashed. The petitioners will be entitled to construct the building in terms of the building permit issued. No costs. (T.R. Ramachandran Nair, Judge.) kav/