IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 W.P.(C).No. 23384 of 2009(P) PETITIONER(S): ------------------------- 1. JAIJY MATHEW, AGED 42 YEARS, S/O.LATE MATHEW, ERAMBADATHIL HOUSE, KOOTHATTUKULAM PO, 686 662. RESIDING AT FLAT NO. 802, BLUE LAGOON APARTMENTS, CHILAVANNOOR ROAD, ELAMKULAM KOCHI-20. 2. DR.DEEPHI, S/O/.JAIJY MATHEW -DO- -DO- BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): ----------------------------- 1. STATE OF KERALA, REP.BY SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. R.D.O, MOOVATTUPUZHA. 3. ASSISTANT ENGINEER, K.S.E.B(RAMAPURAM JUNCTION),KOOTHATTUKULAM. 4. KOOTHATTUKULAM GRAMA PANCHAYAT, REP.BY ITS SECRETARY, KOOTHATTUKULAM PO, ERNAKULAM DIST. 5. SECRETARY, KOOTHATTUKULAM GRAMA PANCHAYAT, KOOTHATTUKULAM. 6. REGIMON P.ALEX, S/O.P.M.CHANDY,PADIKKAPARAMBIL HOUSE, KOOTHATTUKULAM(PADIKKAPARAMBIL) MANOHARAVASTHRAM, KOOTHATTUKULAM PO, ERNAKULAM DIST. ADV. SRI.PEEYUS A.KOTTAM FOR R4&5 SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R6 SRI.S.SUJIN FOR R6 GOVERNMENT PLEADER SRI.BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2009,ALONG WITH WP(C) 19301/09, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 23384 of 2009(P) APPENDIX PETITIONER'S EXHIBITS: Ext.P1: Copy of the sale deed No.639/2000 executed by first petitioner in favour of Federal Bank Ltd. Ext.P2: Copy of the sale deed No.937/2001 executed by second petitioner in favour of Dr.Raju Mathew. Ext.P3: Copy of the sale deed No.2139/97 dated 18-10-1997 of Koothattukulam SRO. Ext.P4: Copy of the sale deed No.2140/97 dated 18-10-1997 of Koothattukulam SRO. Ext.P5: Copy of the sale deed No.367/06 of Koothattukulam SRO. Ext.P6: Copy of the sale deed No.835/06 of Koothattukulam SRO Ext.P7: Copy of application for permit submitted by sixth respondent. Ext.P8: Copy of the plan submitted by sixth respondent. Ext.P9: Copy of the site plan produced along with contempt of court case No.1329/08. Ext.P10: Copy of building permit dated 27-11-2006. Ext.P11: Copy of the interim order dated 6-5-2008 in W.P.(C) No.13516/08. Ext.P12: Copy of the commission report in W.P.(C)No.13516/08. Ext.P13: Copy of the judgment in W.P.(C)No.13516/08. Ext.P14: Copy of representation dated 23-8-2008 submitted by sixth respondent before the 5th respondent. Ext.P15: Copy of the representation dated 25-08-2008 submitted by first petitioner to the 5th respondent. Ext.P16: Copy of the order dated 1-9-2008 issued by 5th respondent. Ext.P17: Copy of the order dated 2-9-2008 issued by 5th respondent. Ext.P18: Copy of the order dated 2-12-2008 in Appeal No.525/08. Ext.P19: Copy of the order dated 2-12-2008 in Appeal No.483/08 challenging Ext.P17. Ext.P20: Copy of the notice dated 3-9-2008 issued by 5th respondent. Ext.P21: Copy of the letter dated 17-3-2009 issued by 6th respondent. W.P.(C).No. 23384 of 2009(P) :: 2 :: Ext.P22: Copy of the letter dated 24-3-2009 issued by 5th respondent to 6th respondent. Ext.P23: Copy of the letter dated 10-07-2009 issued by 5th respondent to 6th respondent. Ext.P24: Copy of the letter dated 15-07-2009 issued by Assistant Engineer, LSGD Section, Koothattukulam G.P. to 5th respondent. Ext.P25: Copy of the representation dated 8-7-2008 submitted by petitioners to the 5th respondent. Ext.P26: Copy of the representation submitted by petitioners to 5th respondent dated 15-7-2009. Ext.P27: Copy of the representation submitted by the petitioners to the 2nd respondent. Ext.P28: Copy of the appeal filed by the sixth respondent before the Tribunal for Local Self Government Institutions, obtained by me on 19- 09-2009 from the Panchayat. Ext.P29: Copy of the order dated 9-9-2009 passed by the tribunal. // True copy // P.A. to Judge S.R.BANNURMATH, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos.23384 & 19301 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of October 2009 JUDGMENT S.R.BANNURMATH, C.J. Learned counsel for the parties submits that a compromise/settlement has been entered into between the parties. A copy of the compromise petition was served on the learned Standing Counsel for the Panchayat. The learned Standing Counsel for the Panchayat submits that the Panchayat has an objection in respect of the parking area between the two disputed buildings. On going through the compromise petition, especially, paragraph 9, in our view, the apprehension and decision taken by the Panchayat on 21-10-2009 appears to be imaginary. However, both the counsels and the respective parties agreed before us that the enclosed place will be provided for car parking, if Panchayat has no other objections. 2. In view of the clarification as aforesaid, in our view, the settlement arrived at between the parties after a long litigation appears to be given quietus and hence we are accepting the settlement. Compromise petition is made part of this order, especially, the agreed terms between the parties at para 6 which reads as follows: “6. The petitioners and respondent deliberated on the pros and cons of all the issues involved in the presence of mediators and well wishers, including the counsel appearing for them. The petitioners and the respondent have now agreed to settle all their disputes in the following manner. The petitioners and the respondent agree as follows: W.P.(C)Nos.23384 & 19301 OF 2009 :: 2 :: (i) the respondent hereby agrees to withdraw all objections to Ext.P11 building permit issued by the Panchayat, bearing No.BA.202/2007-2008 dated 6-3-2008. The respondent accepts that Ext.P19 order of the Panchayat bearing No.P.W.1057 of 2008 dated 3-4-2009 passed on the said petition dated 7-8-2008 as valid. The respondent agrees that Ext.P23 order of the Tribunal in Appeal No.387/2009 dated 24-6-2009 be set aside and the above Writ Petition be allowed to that extent, setting aside the directions of the Tribunal to initiate fresh proceedings under Rule 16 of the Kerala Municipality Building Rules by the Panchayat. (ii) The respondent hereby agrees that the petitioners have the exclusive right to build the second floor in terms of Ext.P11 permit bearing No.BA/202/2007-08 dated 6-3-2008 and upon such construction, the petitioners will hold the same absolutely and exclusively. The respondent agrees that the Panchayat may be directed not to interfere with the constructions to be put up by the petitioners in terms of the said permit. (iii) The petitioners hereby withdraw all their objections to the constructions put up by the respondent in his property blocked in Sy.No.93/12 of Koothattukulam Village, i.e., the new building. The petitioners agree to withdraw the suit O.S.No.50 of 2007 on the file of the Munsiff's Court, Muvattupuzha as settled out of court and appropriate motion in that regard soon after recording this compromise. (iv) The petitioners hereby agree that the respondent can connect his 'new building' in Sy.No.93/12 to the existing building in Sy.No.93/7/3 upto the ground floor level by putting up constructions in the manner indicated in the sketches annexed hereto and marked as Annexures-A to C. Petitioners agree that upon such construction, the respondent will be entitled to hold the same absolutely and exclusively. The petitioners agree to withdraw W.P.(C)No.23384 of 2009. Application for withdrawal of the said case as settled is being filed herewith and appropriate orders may be passed thereon by this Hon'ble Court. (v) Respondent hereby agrees that the petitioners will have the exclusive right to build a first floor and a second floor over the ground floor construction contemplated under clause W.P.(C)Nos.23384 & 19301 OF 2009 :: 3 :: (iv) hereinabove, and such construction also will be in the manner indicated in the sketches annexed hereto and marked as Annexures A to C. Upon completion of such construction, the same will be held by the petitioners absolutely and exclusively. (vi) The petitioners and respondent agree that the respondent's application dated 25-9-2009 before the Panchayat for building permit for putting up the ground floor referred to in clause (iv) above may be proceeded with by the respondent. The respondent shall give the necessary consent in favour of the petitioners to enable them to apply for permit to construct the first and second floors as referred to clause (v) above. They will also submit building plans independely before the Panchayat for obtaining the building permit strictly in terms of Annexures A to C sketches as far as possible. It is however distinctly understood and agreed by the petitioners and respondent that such plan to be submitted will be drawn in such a manner that the median (mid line) of the eastern wall of the constructions to be put up by the petitioners above the ground floor aforesaid (both at first and second floor levels) will be at a distance of 1 metre from the western outer wall of the respondent's new building standing over the ground floor thereof. The construction by the petitioners over the ground floor will proceed accordingly, leaving so much air space in between the two buildings. It is also distinctly understood that the ground floor portion will be constructed by the respondent in such a manner as to result in the top surface of the roof slab thereof being at the same level of the top surface of the roof slab of the ground floor of the existing building in Sy.No.93/7/3. It is also distinctly understood and agreed that the construction of the ground floor will be of such quality and strength as to sustain the load of the 1st and 2nd floors to be put up by the petitioners. Petitioners and respondent will have a right to inspect, while the other is putting up constructions contemplated by clauses (iv) and (v) above personally or through an expert, and ensure its quality, strength as also to ensure that all specifications agreed upon hereinabove and those in the building permit to be obtained are adhered to. (vii) The respondent agrees that he will provide all necessary facilities for the petitioners to put up the constructions referred to in clause (ii) and (v) hereinabove, including facility for drawing pipe lines, electric lines, bringing in and stocking construction materials through the passage along the southern side of the existing building. Likewise, the petitioners will W.P.(C)Nos.23384 & 19301 OF 2009 :: 4 :: provide all facilities to the respondent to put up the construction referred in clause (iv) hereinabove. Whenever any 'no objection' is required to be given by either of the parties to any statutory authority, the same shall be given promptly. (viii) petitioners, respondent and their successors and assigns will have the right to the continued use of the septic tanks, sanitary pipes and fittings, water pipes and other common facilities as now being enjoyed and these rights will enure to the beneficial use of the constructions to be made and referred to in clauses (i), (iv) and (v) hereinabove. (ix) The passage along the southern side of the existing building will not be used by the petitioners and respondent as a parking yard for vehicles, despite a portion thereof being shown as such by both parties in their building plans submitted to the Panchayat. However temporary parking, causing no hindrance to the passage will be tolerated by either party. The western frontage of the existing building along will be used as parking yard. (x) Petitioners agree that Appeal No.761/2009 referred to in paragraph 4 hereinabove pending before the Tribunal be allowed setting aside the order of the Panchayat challenged therein directing demolition of the constructions already put up between the existing building and the new building. Necessary motion in that regard will be made before the Tribunal soon after recording this compromise and at any rate on the next posting date of the said appeal. (xi) Respondent agrees to withdraw the appeal filed by him before the Government of Kerala, challenging an order of the Municipal Joint Director, Ernakulam on the petition filed by him seeking the cancellation of the licence of the Engineer who prepared the plan for the petitioners for putting up the second floor construction over the existing building. The petitioners agree to withdraw the petition filed against the respondent before the Revenue Divisional Officer, Muvattupuzha regarding the alleged conversion of wet land when the new building was put up. The petitioners also agree to withdraw the petition filed against the respondent before the Assistant Engineer, Kerala State Electricity Board, Koothattukulam requiring the Board not to give power connection to the new building put up by the respondent. W.P.(C)Nos.23384 & 19301 OF 2009 :: 5 :: (xii) Petitioners and the respondent agree that all differences which may arise during the course of completion of the constructions contemplated hereinabove will be referred to V.Philip Mathews, Advocate, Ernakulam as sole arbitrator, and his decision will be binding on the petitioners and respondent, subject to the provisions of the Arbitration and Conciliation Act, 1996.” 3. In view of the compromise noted above, Writ Petition 19301/09 stands disposed of as settled in terms of the compromise. 4. So far as Writ Petition 23384/09 is concerned, in view of the compromise, it has become infructuous. Hence, Writ Petition 23384/09 is dismissed as infructuous. Before concluding, we compliment the counsels on both the sides for their sincere effort to bring about a settlement between the waring groups. So far as the joint application is concerned, it is agreed by both the parties that they will file a joint application to the Panchayat and if such an application is received, the same shall be considered by the Panchayat and fresh orders shall be passed granting the permission. (S.R.BANNURMATH) CHIEF JUSTICE (A.K.BASHEER) JUDGE jes