IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 WP(C).No. 28695 of 2008(S) -------------------------- PETITIONER(S): --------------- 1. P. RATNAKARAN, CHAIRMAN, THANALOOR PANCHAYAT UDF COMMITTEE, THANALOOR, MALAPPUAM DISTRICT. 2. MOITHEEN KUTTY, CONVENER, THANALOOR PANCHAYAT UDF COMMITTEE, THANALOOR, MALAPPURAM DISTRICT BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): --------------- 1. THE THANALOOR GRAMA PANCHAYAT, THANALOOR, MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY. 2. SRI.PRABHAKARAN, PRESIDENT, THANALOOR GRAMA PANCHAYAT, THANALOOR, MALAPPURAM DISTRICT. 3. SRI VELIYATH ABDUL RAZAK, VICE PRESIDENT, THANALOOR GRAMA PANCHAYAT, THANALOOR, MALAPPURAM DISTRICT. 4. THE DEMOCRATIC YOUTH FEDERATION OF INDIA (DYFI), THANALOOR, MALAPPURAM DISTRICT, REPRESENTED BY ITS BLOCK PRESIDENT SRI.VELIYATH ABDUL RAZAK. 5. THE DISTRICT COLLECTOR, MALAPPURAM. 6. THE SECTION ENGINEER (PERMANENT WAY) SOUTHERN RAILWAY, TIRUR, MALAPPURAM DISTRICT. ADV. SRIC.M.MOHAMMED IQUABAL FOR R1 TO 4 SRI.N.B.SUNIL NATH,SC, RAILWAYS FOR R6 SR. GOVERNMENT PLEADER SMT.K.MEERA FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE REPRESENTATION DATED 22.9.2008 SUBMITTED BY THE PETITINERS BEFORE R1. P1(A) COPY OF THE ENGLISH TRANSLATION OF EXT.P1 DOCUMENT. RESPONDENTS' EXHIBITS: R1(A) COPY OF THE ASSESSMENT REGISTER KEPT BY THE PANCHAYAT DATED NIL. R4(A) COPY OF THE DOCUMENT NO.1376/2001, SRO, TIRUR DATED 7.4.2007. R4(B) COPY OF THE DOCUMENT NO.1110/94 OF SRO, TIRUR DT 3.5.1994. R4(C) COPY OF THE LAND TAX RECEIPT DT 2.5.2007. R4(D) COPY OF THE BUILDING TAX RECEIPT DT 14.9.2008. R4(E) COPY OF THE BUILDING TAX RECEIPT ISSUED BY THE TANALOOR GRAMA PANCHAYAT TO THE ASSIGNOR OF THE 4TH RESPONDENT DT 1.8.2006. R6(A) COPY OF THE CIRCULAR NO.8/2002 DT 26.12.2002 ISSUED BY THE PRINCIPAL CHIEF ENGINEER, RAILWAYS, CHENNAI // True Copy // P.A. To Judge J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. ````````````````````````````````````````````````````````````` W.P.(C) No. 28695 of 2008 S ````````````````````````````````````````````````````````````` Dated this the 9th day of June, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Antony Dominic, J. Petitioners have filed this writ petition as a Public Interest Litigation with the following prayers:- “(i) Issue a writ of mandamus commanding the first respondent to immediately stop the illegal construction going on in lands bearing Survey No.213/13 of Thanaloor village withing the Thanaloor Grama Panchayat by the fourth respondent with the connivance of the second and third respondents. (ii) Declare that the construction going on in that site is totally illegal, without even applying for a building permit and therefore forbidden in law under the W.P.(C) No.28695/2008 : 2 : Kerala Panchayat Raj Act and the Kerala Building Rules.” 2. The basis on which the aforesaid prayers are sought for is that a plot of land situated in Survey No.213/13 of Thanaloor village and Thanaloor Grama Panchayat was purchased by the fourth respondent Organisation. It is averred by the petitioner that “It appears the aforesaid land was purchased by the fourth respondent Organisation, where it has now started construction for housing the office of the Communist Party of India(Marxist) in the area”. The petitioner contends that construction in one cent is not permissible under the Kerala Building Rules and, therefore, action should have been taken against the fourth respondent and alleging inaction on the part of the authorities, the writ petition was filed. 3. The fourth respondent has filed a counter affidavit, in which, it is stated that the land in Survey W.P.(C) No.28695/2008 : 3 : No.213/13 was purchased by them by document No.1376/2007 dated 07.04.2007, a copy of which is Ext.R4 (a). It is stated at the time when the property was purchased, the building in question was in existence and that the Panchayat has assigned building No.TP 7/262. A perusal of Ext.R4(a) also shows that the schedule to the said document mentions the aforesaid building number. According to the fourth respondent, the building was in existence even at the time when their predecessors-in- interest have purchased the plot in question. It is also the case of the fourth respondent that, at the time of construction of the building, the Kerala Municipality Building Rules were not applicable and, therefore, there was no necessity to obtain prior approval of the Panchayat. 4. The first respondent Panchayat has also filed a counter affidavit, supporting the aforesaid contentions of the fourth respondent and has also produced extract of the W.P.(C) No.28695/2008 : 4 : building assessment register maintained by the Panchayat, which indicates that on an application made by the fourth respondent, necessary corrections were carried out in the assessment register. 5. Thus, the case of the petitioner as pleaded in the writ petition that the fourth respondent has started construction of a building is factually incorrect. Apparently, in view of the aforesaid situation, the learned counsel for the petitioner contended that, the construction of the building is in violation of the Railway Act and the Rules. To substantiate this contention, reference was made to the counter affidavit filed by the 6th respondent. 6. In this case, on the pleading in the writ petition, case of the petitioner is that a new building is being constructed by the fourth respondent and that the said construction is in violation of the Building Rules. On the basis of the material available, we have found that the W.P.(C) No.28695/2008 : 5 : aforesaid contention of the petitioner is incorrect. Therefore, no relief can be granted in this writ petition. On the other hand, if the existence of the building is against the rules of the Railways, it is upto the Railways to take action in accordance with law. Therefore, the prayers sought for in the writ petition cannot be granted and for that reason, writ petition is only to be dismissed and we do so. Sd/- (J.CHELAMESWAR, CHIEF JUSTICE) Sd/- (ANTONY DOMINIC, JUDGE) aks/10.06 // True Copy // P.A. To Judge