IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 1569 of 2009(J) ------------------------- PETITIONER(S): --------------- A.O.JOY, S/O.OUSEPH, 48 YEARS AZADUVELY, MUHAMMA PO., ALAPPUZHA. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, ALAPPUZHA 2. DEPUTY DIRECTOR OF PANCHAYAT, ALAPPUZHA 3. ADDL.THAHSILDAR, TALUK OFFICE, CHERTHALA. 4. SUPERINTENDENT OF SURVEY, DISTRICT COLLECTORATE, ALAPPUZHA. 5. MUHAMMA GRAMA PANCHAYAT, REP. BY ITS SECRETARY. 6. SECRETARY, MUHAMMA GRAMA PANCHAYAT, MUHAMMA, ALAPPUZHA. ADV. SRI.J.OM PRAKASH FOR R5 GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 1569/09. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE OBJECTION DTD.15.12.08. P2. COPY OF THE NOTICE DTD.8.1.2009. P3. COPY OF THE APPEAL BEFORE R4 DTD.15.12.08. P4. COPY OF THE APPLICATION DTD.25.11.2000. P5. COPY OF THE BUILDING NO. PLATE. P6. COPY OF THE MINUTES DTD.30.6.2000. P7A. COPY OF THE ORDER DTD.25.9.03. B. COPY OF THE TAX RECEIPT DTD.15.10.03. C. COPY OF THE NOTICE DTD.15.9.03. P8. COPY OF THE NOTICE DTD.3.4.01. P9. COPY OF THE NOTICE DTD.18.5.01. P10. COPY OF THE DIRECTION BY THE PANCHAYAT DTD.12.8.03. P11. COPY OF THE SKETCH. P12. COPY OF THE LETTER DTD.5.1.09. P13. COPY OF THE LETTER DTD.9.2.09. RESPONDENT(S)' EXHIBITS: R5A. COPY OF THE OBJECTION CERTIFICATE DTD.21.10.99. B. COPY OF THE APPLICATION DTD.8.10.02. C. COPY OF THE JUDGMENT IN W.P.(C).No. 32266/02 OF THIS COURT. D. COPY OF THE UNDERTAKING OF THE PETITIONER DTD.20.8.03. E. COPY OF THE JUDGMENT IN O.S.NO.450/2001 DTD.3.2.03 OF MUNSIFF'S COURT, CHERTHALA. F. COPY OF THE O.P.NO.63/2005 DTD.7.2.05. G. COPY OF THE NOTICE DTD.21.12.05 OF THE PANCNAYAT DY. DIRECTOR. H. COPY OF THE REPORT OF ADDL. TAHSILDAR, DTD.19.1.06. I. COPY OF THE SKETCH. J. COPY OF THE ORDER OF THE OMBUDSMAN DTD.23.2.06. K. COPY OF THE LETTER DTD.17.5.07. L. COPY OF THE ORDER OF THE OMBUDSMAN DTD.6.8.2008. M. COPY OF THE ORDER OF THE -DO- DTD.31.10.08. N. COPY OF THE NOTICE DTD.28.11.2008. O. COPY OF THE LETTER OF THE DIST. COLLECTOR, DTD.16.1.2009. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.1569 of 2009 ================== Dated this the 24th day of February, 2009 J U D G M E N T The petitioner challenges the order of the Panchayat directing demolition of his building. Originally there was an interim order staying the demolition. Subsequently, the Panchayat has filed a counter affidavit specifically pointing out that in the writ petition the petitioner has suppressed material facts. Considering the averments in the counter affidavit, I had vacated the interim order on 20.2.2009 and posted the writ petition to today. 2. Today the learned counsel for the petitioner advanced extensive arguments against the order directing demolition. The primary contention raised by the petitioner is that although the Taluk Surveyor had measured the property and found encroachment into the property of the Panchayat, the petitioner had already submitted an appeal against the order of the Taluk Surveyor, which is pending and therefore, the building should not be demolished till that appeal is disposed of. 3. I have considered the arguments of the petitioner and that of respondents 5 and 6 including the contention that the petitioner has suppressed material facts. 4. The suppression alleged is of the orders of the Ombudsman for Local Self Government Institutions, particularly Ext.R5(m) order, whereby the Ombudsman had directed the 6th respondent to proceed with the steps for demolition in accordance with law. The counsel for 2 the Panchayat would contend that it is pursuant to Ext.R5(m) order of the Ombudsman that the order impugned has been served on the petitioner. He further points out that the petitioner has not even mentioned Ext.R5(m) in the writ petition, nor has he challenged the same. 5. When the counsel for the petitioner repeatedly asserted that he had not suppressed the orders of the Ombudsman, I directed the counsel for the petitioner to read out from the writ petition that portion where he has stated that the Ombudsman had directed demolition of the building. The counsel for the petitioner reads out paragraph 3 of the writ petition, which reads thus: “It is submitted that due to lethargy on the part of the Panchayat Authorities the petitioner approached the Hon'ble Ombudsman for Local Self Government Institution seeking a direction to the Panchayat to take appropriate action on the basis of the building No. originally allotted as stated above. The Ombudsman without giving proper hearing relied on the distorted statements made by the 6th respondent and came to irregular conclusions to the effect that the said building is constructed encroaching the puramboke land of the PWD road. Later the Ombudsman after realizing the mistake issued another direction to allot number to the said construction. The Panchayat Authorities again filed objection misguiding the Ombudsman to the effect that the said land of the petitioner has been surveyed and found that the same is in puramboke. It is specifically submitted that the petitioner has not till date received any notice regarding the survey of his property by the Panchayat or Revenue authorities.” The above paragraph does not contain any averment to the effect that the Ombudsman had directed demolition of the petitioner's building. The petitioner has only vaguely referred to the proceedings before the Ombudsman without specifically referring to either Ext.R5(m) or the 3 direction to demolish the building. In this connection it would be advantageous to the Court, Ext.R5(m) order of the Ombudsman, which reads thus: “The petitioner seeks review of order dated 23.2.2006 passed by my predecessor in O.P.No.63 of 2005, wherein it was found based on the report of the Deputy Director of Panchayat, that the petitioner's house for which building number is sought has been built encroaching into puramboke land and that the construction in the encroached portion has to be demolished. After hearing the petitioner, I had directed on 6.8.2008 that since the petitioner has already been allotted Building No.405/2000 for the main building, the shop room which is attached thereto and not assigned any building number might also be given building number. It was then pointed out by the Secretary of the Panchayat concerned that according to the earlier order, it is part of the building which is liable to be demolished. The present petition has been filed in this connection. It was without noticing the existence of earlier order dated 23.2.2006 that the aforesaid order directing grant of building number was passed. The whole matter therefore requires review. It is seen from the report of the respondent that the earlier order was passed based on measurement carried out by the officers on direction from the Additional Tahsildar, Cherthala, that the constructions intrudes into puramboke land. I have perused the survey plan prepared by V.S.Ajil Kumar, Taluk Surveyor (Appl.I) which shows that a triangular portion with hypotenuse of 11 meters and altitude of 1.6 meters actually intrudes into puramboke land. No doubt, the petitioner was given an NOC to construct in survey 473/1/1 on 21.10.1999; but it was specifically mentioned therein that the construction should be done 3 meters away from the road margin as per Sec 220B of the Kerala Panchayat Raj Act. The sketch prepared by the Taluk Surveyor shows that the construction actually made is in violation of the said directive. It is true that the portion which is not covered by the extension, which amounts to intrusion has been given building number; but that was based on special circumstances, namely the petitioner's filing O.S.No.450 of 2001 and later approaching High Court with O.P.No. 32266/2002. It was considering the pendency of suit that assigning of a building number on a provisional basis was allowed. This again was subject to the condition that finality to the issue should be given only after disposal of the suit. Actually the suit had been dismissed with cost even on 3.2.2003. Based on the direction of the High Court, the petitioner also executed an agreement in favour of the respondent undertaking to demolish the building in case the site of the building was found to intrude into 4 puramboke land and that the provisional number allotted could be used only for obtaining ration card and for water and electricity connections. With the dismissal of the suit and the clear finding of the Taluk Surveyor that the building partly intrudes into the puramboke land, foundation of petitioner's case itself is lost as already mentioned, the number that he got for the building was on conditions and on undertaking through agreement and based on High Court orders which in turn was dependent on the result of the original suit. In the circumstances, I find no scope for modifying my predecessor's order dated 23.2.2008. At the same time, the order directing grant of building number on 6.8.2008 is reviewed suo motto (sic) and cancelled. The respondent will proceed with the steps for demolition in accordance with law.” From the above, it is clear that in respect of the subject matter, the petitioner had filed a suit as O.S.No.450/2001 and O.P.No. 32266/2002. In Ext.R5(c) judgment this Court had permitted provisional numbering of the building pending the civil suit before the Munsiff's Court, Cherthala, and the High Court had observed that the parties should adjust their affairs in consonance with the orders that may be passed by the civil court. Subsequently, the suit itself had been dismissed. None of these facts had been stated by the petitioner. Further, the petitioner has not chosen to challenge Ext.R5(m) order of the Ombudsman, based on which only the impugned order has been passed. That being so, the petitioner is guilty of suppression of material facts. As such, the petitioner has not approached this Court with clean hands. For that reason, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 5