IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 17067 of 2009(C) --------------------------------------- PETITIONER: ------------------- M/S.PATEL CARS PVT.(LTD), REPRESENTED BY ITS MANAGING DIRECTOR ,MITHESH K.PATEL, PIONEER TOWERS, MARINE DRIVE, ERNAKULAM. BY ADVS. MR.S.SREEKUMAR, MR.P.MARTIN JOSE, MR.P.PRIJITH, MR.S.VAIDYANATHAN. RESPONDENTS: ------------------------ 1. THE MARADU GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MARADU P.O. ERNAKULAM. 2. MOHAMMED KUTTY ,S/O. ABUDL KHADIR, CHATHANKELIL HOUSE, NETTUR, ERNAKULAM. *ADDL.R3 & R4 IMPLEADED: 3. ABDUL MAJEED, S/O. HAMEED, MALIAEKKAL HOUSE (PURAKKELI PARAMBU), NETTOOR.P.O, ERNAKULAM DISTRICT. W.P.(C). NO.17067/2009-C: 4. C.J. MUHAMMED SHERIFF, S/O. ISMAIL, CHEREPARAMBU, NETTOOR.P.O., ERNAKULAM DISTRICT. *ARE IMPLEADED AS ADDL. R3 & R4 VIDE ORDER DT. 23/06/09 IIN I.A. NO. 7579/09. R1 BY ADV. MR.S.CHANDRASENAN, R2 BY ADVS. SMT.SHAHNA KARTHIKEYAN, ADDL.R3 & R4 BY ADV.MR.S.VINOD BHAT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17067/2009-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SALE DEED NO.2257/2007 OF MARADU SRO. EXT.P.2: COPY OF THE SALE DEED NO. 3625/2007 OF MARADU SRO. EXT.P.3: COPY OF THE SALE DEED NO. 3750/2007 OF MARADU SRO. EXT.P.4: COPY OF THE PLAN. EXT.P.5: COPY OF THE BUILDING PERMIT DTD. 26/02/2008. EXT.P.6: COPY OF THE AGREEMENT DTD. 11/12/2008. EXT.P.7: COPY OF THE COMPLAINT DTD. 27/01/2009 FILED BY THE R.2. AND 6 OTHERS BEFORE THE RDO. EXT.P.8: COPY OF THE PLAINT DTD. 14/02/2009 IN O.S. NO. 214/2009. EXT.P.9: COPY OF THE ORDER IN I.A. NO. 2744/09 IN CMA.NO.42/09 DTD. 08/04/2009 OF DISTRICT COURT, ERNAKULAM. EXT.P.10: COPY OF THE SKETCH PREPARED BY THE SURVEYOR. EXT.P.11: COPY OF THE ENGINEERS REPORT. EXT.P.12: COPY OF THE COMMISSION REPORT DTD. 04/06/09. EXT.P.13: COPY OF THE APPEAL MEMORANDUM DD. 21/03/2009. EXT.P.14: COPY OF THE ORDER DTD. 08/06/2009 ISSUED BY LOCAL SELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PANCHAYAT BEFORE THE TRIBUNAL DTD. 30/04/2009. EXT.R2.B: COPY OF THE TAX RECEIPT IN RESPECT OF RESURVEY NO. 249/7 FOR THE TAX PAID BY THE PETITIONER, DTD. 09/08/2007. EXT.R2.C: COPY OF THE POSSESSION CERTIFICATE PRODUCED BY THE PETITIONER BEFORE THE TRIBUNAL DTD. 09/08/2007. W.P.(C). NO.17067/2009-C: EXT.R2.D: COPY OF THE PHOTOS OF THE CANAL ON WHICH THE PETITIONER IS CONSTRUCTING THE BUILDING TAKEN IN THE DIGITAL CAMARA TAKEN AT THE TIME OF INSPECTION BY COMMISSIONER IN O.S. 214/09. EXT.R3.A: COPY OF THE NOTICE AND ORDER NO. 140/2009 DTD. 29/01/2009 ISSUED BY R.1. EXT.R3.B: COPY OF THE POSSESSION CERTIFICATE NO. 4723/07 DTD. 09/08/2007 ISSUED BY VILLAGE OFFICER, MARADU. EXT.R3.C: COPY OF THE BUILDING PERMIT ISSUED BY THE R.1. (NO.A(2) 132/07-08 DTD. 22/05/2007. EXT.R3.D: COPY OF THE BUILDING PERMIT (REVISED PLAN) ISSUED BY THE R.1. (NO.A (2) 132/07-08 DTD. 26/02/2008. EXT.R3.E: COPY OF THE AFFIDAVIT DTD. 07/04/2009 FILED BY THE PETITIONER IN CMA 42/2009 ON THE FILE OF DISTRICT COURT, ERNAKULAM. EXT.R3.F: COPY OF THE COMMISSION REPORT FILED IN CMA 42/2009 ON THE FILE OF DISTRICT COURT, ERNAKULAM DTD. 04/06/2009. EXT.R3.G: COPY OF THE COMMISSION REPORT FILED IN O.S. 214/2009 ON THE FILE OF MUNSIFF'S COURT, ERNAKULAM DTD. 25/02/2009. EXT.R3.H: COPY OF THE SKETCH. EXT.R3.I: COPY OF THE COMMUNICATION NO. A1-951/09 DTD. 17/03/2009 ISSUED BY THE R.1. EXT.R3.J: COPY OF THE COMMUNICATION AND SKETCH NO. V.O.3/09 DTD. 04/05/2009 RECEIVED FROM THE VILLAGE OFFICER, MARADU. EXT.R3.K: COPY OF THE PLAINT O.S. 1569 OF 2008 ON THE FILE OF MUNSIFF'S COURT, ERNAKULAM DTD. 05/12/2008. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO. 17067 OF 2009 ............................................ DATED THIS THE 7th DAY OF JULY, 2009 JUDGMENT The petitioner obtained a building permit for constructing a commercial building in Survey No.249/7 of Maradu Village, which according to him, measured 61.750 cents. The records disclose that the first respondent panchayat, after issuing the building permit in consonance with the request of the petitioner, later found that he was building the structure beyond the plot in relation to which permission was issued. Certain stop memos etc followed. May be, noticing that there was some confusion in the plan and permit obtained by the petitioner, he obtained further transfers of an extent of 5 cents of land in Survey No.249/6 and 12 cents of land in 249/8. All the three put together, the petitioner states that he has 78.750 cents. There is a parallel litigation going on in the civil court. An Advocate Commissioner accompanied by two experts conducted site inspection and the Retired Taluk Surveyor demarcated the lands and issued a statement which is page 113 of this paper book, showing the Wpc 17067/2009 2 actual extent available to the petitioner in survey 249/7 as only 57.300 cents instead of 61.750 cents and that the petitioner has 5 cents in Survey No.249/6 and 12 cents in Survey 249/8 as claimed by him. This court is not giving its seal of approval even to that report because that is not a report inter partis this litigation and is also pending consideration in a civil suit. 2. The second respondent, after obtaining a copy of the building permit under the Right to Information Act, filed an appeal before the Tribunal for Local Self Government institutions. Such institution of appeal was nearly an year or so after the issuance of the building permit. It is not in dispute that the petitioner is continuing with the construction and that he stands governed by an undertaking given by him to the District Court, Ernakulam in the pending civil litigation between him and another neighbour. In Ext.R3(c), the petitioner has undertaken to the District Court that he would confine the construction of the A schedule property in that litigation and that such construction would be at his risk with liability to be pulled down depending upon the final outcome of that case. 3. In so far as the appeal filed by the second respondent is Wpc 17067/2009 3 concerned, the Tribunal called for the files of the panchayat, made a comparison between the permit application and the documents that accompanied the permit application. It relied on Rule 18 of the Tribunal Rules and referred to a judgment of this court in Beerankutty V. Municipal Commission(1984 KLT Short notes 46, Case no.77) and concluded that the permit was issued beyond the scope of the extent of the title to the land that the petitioner had then claimed which remained confined to Survey No.249/7. 4. Though different submissions are made touching the scope of the nature of exercise of jurisdiction of the Tribunal including that the decision making by the Tribunal cannot be confined to mere adherence to the statutory rules, particularly when huge funds may be involved in making constructions, I do not deem it necessary to go into those aspects now. This is because the fact of the matter remains that the panchayat had never addressed itself regarding the total actual extent available for the petitioner for carrying out the construction activity. Even if he had only the property in Survey 249/7, with him when he made the first application, there is no prohibition in law for one to Wpc 17067/2009 4 acquire the adjacent lands and contribute it as available space for the construction that had already commenced. Such a pragmatic view has necessarily to follow in the interpretation and application of legislations and consideration of permits when it would be in nobody's interest to destroy material wealth. Taking the aforesaid into consideration,the petitioner has necessarily to apply for modification of his permit application to be one for a structure that would spread over Sub Division Nos. 6, 7 and 8 of Survey No.249. Obviously, that could be done only after acquisitions have been made by him in so far as the parcels in Survey 249/6 and 249/8 are concerned. It cannot relate back to the date of original application, but has necessarily to be a fresh application, either for regularisation or for expose facto sanction, which would be only curative of any problem created by the absence of the total extent. 5. Learned senior counsel appearing for the second respondent and for the additional respondents are right in pointing out that the petitioner having faced the situation as a result of the fact that he did not have any item of property with him from Sub divisions 6 and 8 in Survey 249 while he submitted Wpc 17067/2009 5 the application for permit, he cannot make out a case of any illegality in any action taken by the panchayat against the petitioner. 6. The situation in hand therefore requires the Secretary of the first respondent panchayat to take up any application that the petitioner may file within a period of two weeks from now, hear the petitioner and the private respondents in this writ petition and any other person who would be entitled to be heard and take a decision on such application, having regard to the totality of the facts and circumstances. It shall also be ensured by the panchayat that no water course which is vested in it as a public channel or otherwise is impaired by any construction activity, particularly because the RDO has already issued an order to ensure such protection. It is further clarified that the petitioner will be entitled to provisionally continue with the construction activity on the basis of the plan which has already been sanctioned to him. Such construction shall be in strict compliance with and bound by the undertaking given by the petitioner before the District Court in Ext.R3(e) affidavit. For such purpose, the impugned order of the Tribunal is hereby set aside. Wpc 17067/2009 6 7. It is submitted that the petitioner has also constructed a ramp for the movement of the vehicles into the premises. Even by the rules, such constructions go by a different standard and panchayat will immediately consider any objection that the petitioner submits to the stand taken by the secretary of the panchayat in that regard. Let a final decision follow within a period of one month of the receipt of the application. It is also directed that the petitioner shall place a copy of this judgment and a copy of the decision that the panchayat may take before the civil court where the litigation referred to above would be then pending. It is also clarified that nothing contained in this judgment shall be treated as operative in any manner contradicting any order that has already been issued, or would be issued by the civil court. All other issues are left open. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/8/7