IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 WP(C).No. 18233 of 2003(U) --------------------------------------- PETITIONER: ------------------- POTHENKODE VYAPARI VYAVASAYI EKOPANA SAMITHY, POTHENKKODE UNIT, THIRUVANANTHAPURAM, REP. BY ITS GENERAL SECRETARY, K. RAVEENDRAN NAIR. BY ADV. SMT.ASHA P.KURIAKOSE. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. 2. POTHENKODE GRAMA PANCHAYAT, POTHENKODE, REP. BY ITS SECRETARY. 3. G. PRABHAKARAN, INDIRA BHAVAN, AIROOPPARA VILLAGE, POTHENKODE, THIRUVANANTHAPURAM. R1 BY GOVT. PLEADER SRI. K.J. MOHAMMED ANZAR, R2 BY ADVS. SRI.S.JAMES VINCENT, SRI.TERRY V.JAMES, R3 BY SRI.D.SAJEEV. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18233/2003-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1; COPY OF THE JUDGMENT DTD. 14/12/2001 IN O.P. NO. 15618/2001 (H) OF THIS HON'BLE COURT. EXT.P.2: COPY OF THE ORDER DTD. 24/09/2002 IN R.P. NO. 244/2002 OF THIS HON'BLE COURT. EXT.P.3: COPY OF THE ORDER DTD. 24/09/2002 IN R.P. NO. 256/2002 (H) OF THIS HON'BLE COURT. EXT.P.4: COPY OF THE STATEMENT SUBMITTED BY PETITIONER BEFORE THE GOVERNMENT OF KERALA. EXT.P.5: COPY OF THE G.O. (RT). NO. 1701/2003/LSGD DTD. 17/05/2003. EXT.P.6; COPY OF THE CONSEQUENTIAL ORDER DTD. 30/05/2003 ISSUED BY THE R.2. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE LETTER NO. D. 200/2001 DTD. 10/04/2001 ADDRESSED BY THE TOWN PLANNER TO THE PANCHAYAT. EXT.R2.B: COPY OF THE ROUGH SITE SKETCH PREPARED BY THE OVERSEER OF THE GRAMA PANCHAYAT ON 18/03/2002. EXT.R2.C: COPY OF THE ORDER NO. A4-98/2001 DTD. 18/03/2002. EXT.R2.D: COPY OF THE ORDER DTD. 22/08/2001 IN O.P. NO. 329/2001 OF THE OMBUDSMAN FOR LOCAL SELF-GOVERNMENT INSTITUTIONS, TRIVANDRUM. EXT.R2.E: COPY OF THE ORDER DTD. 15/03/2002 ISSUED BY THE OMBUDSMAN FOR LOCAL SELF-GOVERNMENT INSTITUTIONS ON R.P. NO. 134/2002 IN O.P. NO. 329/2001. EXT.R2.F: COPY OF THE COVERING LETTER NO. A4.98/2001 DTD. 16/05/2002 ADDRESSED BY THE SECRETARY OF THE PANCHAYAT TO THE SECRETARY TO THE GOVERNMENT, LOCAL SELF-GOVERNMENT DEPARTMENT. EXT.R2.G: COPY OF THE REPORT DTD. 16/05/2002 ADDRESSED BY DO. DO. //TRUE COPY// P.A. TO JUDGE. prv. S.SIRI JAGAN, J. ================== W.P(C).No.18233 of 2003 ================== Dated this the 9th day of January, 2009 J U D G M E N T This writ petition is filed by the Vyapari Vyavasayi Ekopana Samithy, Pothenkode unit, a Samithy registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act. They wanted to construct an office building in 4.5 cents of land purchased by them. They filed application for a building permit to construct the first floor. The same was granted. The construction was completed on 15.11.2000. The building was numbered and tax was accepted by the local authority. On 16.1.2001, the petitioner applied for permit for construction of second floor also. Permit was granted. On 22.1.2001, the 3rd respondent filed a complaint before the local authority alleging violation of the building rules in the construction and the 2nd respondent issued a stop memo dated 13.2.2001. On 20.2.2001 another complaint was also filed by the 3rd respondent. In the meanwhile, the local authority issued a notice to the petitioner directing him to demolish the building apparently in view of the direction issued by the Government in the matter. The petitioner filed O.P.No. 15618/2000 challenging the said direction, which resulted in Ext.P1 judgment. It appears that the local authority acted on the basis of a letter from the Government, which was produced as Ext.R2(C) w.p.c.18233/03 2 along with the counter affidavit of the local authority in that original petition. This Court in Ext.P1 judgment quashed the letter of the Government as well as the notice of the local authority and further directed the local authority to take final decision in the matter after hearing the petitioner as well as the 3rd respondent herein, strictly in accordance with the Kerala Municipalities Building Rules, 1999 and the Panchayath Raj Act, within a period of one month from the date of receipt of a copy of that judgment. It was also made clear therein that that order will not be a bar for the Government to exercise the appellate or revisional power, if any, conferred on it under the Kerala Municipality Building Rules, 1999 or the Panchayat Raj Act in accordance with law. Both the local authority as well as the 3rd respondent herein filed review petitions against that judgment. Those review petitions were dismissed by Exts.P2 and P3 orders. However, while dismissing, in Ext.P2 there was a direction to the Government to treat the petition filed by 3rd respondent herein on 20.2.2001 as a revision petition filed under Rule 18(5) of the Kerala Municipality Building Rules, 1999, and dispose of the same afresh in accordance with law after issuing notice to the petitioner as well as the panchayat. In Ext.P3 order it was also directed that if the petitioner herein makes an application for fresh plan and licence, it would be open to the respondents to pass appropriate orders in accordance with law. The w.p.c.18233/03 3 Government in accordance with the direction in Ext.P2 order in the review petition proceeded to consider the revision petition under Rule 18(5) and passed Ext.P5 order directing the local authority to demolish the building constructed by the petitioner. Pursuant thereto, Ext.P6 order has been issued by the local authority, directing the petitioner to demolish the building. The petitioner is challenging Exts.P5 and P6 orders in this writ petition. 2. The contention of the petitioner is that when the Government proceeded to comply with the directions in Ext.P2 order, the local authority failed to do the same as directed in Ext.P3 order, which is totally unjust. According to him, as observed in Ext.P3 order itself, the petitioner has now purchased additional land and the construction now on the total land is perfectly in accordance with the building rules and therefore, the local authority is bound to consider the application for building permit in accordance with the revised plan submitted by the petitioner. The petitioner, therefore, seeks the following reliefs: “a) a writ of certiorari, after calling for records and quash Exhibit P5 order dated 17.5.2003 issued by the 1st respondent and the consequential Exhibit P6 order dated 30.5.2003 issued by the 2nd respondent; b) a writ of mandamus, commanding the 1st and 2nd respondents to comply with Exhibits P2 and P3 orders denovo, after hearing the petitioner and the 3rd respondent; c) an order of interim stay of Exhibit P5 order dated 17.5.2003 issued w.p.c.18233/03 4 by the 1st respondent and all actions taken pursuant thereto, including its operation and implementation.” 3. The 3rd respondent opposes the prayers. According to the 3rd respondent, now that it is found that the construction of the building has been in violation of the building rules, the petitioner cannot escape from the consequences under law. The 3rd respondent, therefore, supports Exts.P5 and P6. 4. I have considered the rival contentions in detail. 5. I am of opinion that when in the same proceedings in two orders there were two directions, it is totally unjust to comply with one direction and to refuse to comply with the other direction. In view of the contention of the petitioner that the petitioner has purchased additional land and the construction now existing is perfectly in accordance with the Kerala Municipality Building Rules, it is only just and proper that the 2nd respondent local authority considers the revised plan and application for permit submitted by the petitioner in accordance with the Kerala Municipality Building Rules. The same shall be done within a period of one moth from the date of receipt of a certified copy of this judgment, after affording an opportunity of being heard to the petitioner as well as the 3rd respondent. If the revised plan is in accordance with the building rules, the 2nd respondent shall regularise the construction already made by the petitioner and Ext.P5 w.p.c.18233/03 5 shall not be implemented. However, if it is found to be in violation of the building rules, it would be open to respondents 1 and 2 to implement Ext.P5 order. Till the 2nd respondent passes fresh orders, as directed above, further proceedings pursuant to Ext.P5 shall be kept in abeyance. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.18233/03 6 S.SIRI JAGAN, J. ================== W.P(C).No.18233 of 2003-U ================== J U D G M E N T 9th January, 2009