IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 WP(C).No. 17532 of 2008(K) ---------------------------------------- PETITIONER: --------------------- MUSTHAFA, S/O. KUNHAHAMMED MOLLA, CHEMMANKUZHI HOUSE, MALAPPURAM DISTRICT. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: -------------------------- 1. THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. 2. THE DISTRICT TOWN PLANNER, MALAPPURAM. 3. THE SUB DIVISIONAL MAGISTRATE, PERINTHALMANNA, MALAPPURAM. 4. ALIPPARAMBA GRAMA PANCHAYATH, MALAPPURAM DISTRICT, REP. BY ITS SECRETARY. 5. THE MANAGER, AMLP SCHOOL, EDAICKAL, MALAPPURAM DISTRICT. 6. THE VILLAGE OFFICER, OFFICE OF THE VILLAGE OFFICER, ALIPARAMBA, MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER - R1 TO R3 BY ADV. SRI.BABU S. NAIR - R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.17532/2008 K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION FILED BEFORE THE PANCHAYATH SECRETARY DTD. 14/01/2008. EXT.P2: COPY OF THE PETITION PREFERRED BEFORE THE TOWN PLANNING OFFICER DTD. 24/01/2008. EXT.P3: COPY OF THE COMMUNICATION ISSUED BY THE TOWN PLANNER DTD. 01/04/2008. EXT.P4: COPY OF THE JUDGMENT IN WP(C)NO.15887/2008. EXT.P5: COPY OF THE ORDER NO.D2/2897/2008/D.DIS. DTD. 31/05/2008 ISSUED BY THE SENIOR TOWN PLANNER. EXT.P6: COPY OF THE COMMUNICATION ISSUED BY THE SECRETARY DTD. 19/12/2007. EXT.P7: COPY OF THE REPORT SUBMITTED BY THE ADDITIONAL TAHSILDAR. EXT.P8: COPY OF THE RELEVANT EXTRACT OF THE ROAD REGISTER MAINTAINED BY THE PANCHAYATH. EXT.P9: COPY OF THE ORDER OF THE SUB DIVISIONAL MAGISTRATE, PERINTHALMANNA. RESPONDENT'S EXHIBITS & ANNEXURE: EXT.R5(A): COPY OF THE CIRCULAR NO.H2/77436/2007 DTD.17/12/2007 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS. EXT.R5(B): COPY OF THE REPORT OF 6TH RESPONDENT SUBMITTED BEFORE THE S.D.M., PERINTHALMANNA DTD. 26/03/2007. EXT.R5(C): COPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.M.C.NO.2544/2007 DTD. 8/08/2007. EXT.R5(D): COPY OF THE SITE PLAN OF THE PROPOSED SCHOOL BUILDING. ANNEXURE R2(A): THE PANCHAYATH SECRETARY VIDE LETTER NO. AP/KBR/C 596/07-08 DTD. 21/02/2008. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = = W.P.(C) No. 17532 OF 2008 K = = = = = = = = = = = = = = = = = Dated this the 17th day of July 2008 J U D G M E N T Ext. P5 order of the 1st respondent, is under challenge. 2. The facts of the case show that by Ext. P5 a building permit has been granted by the 1st respondent. The said permit has been granted on the basis of an application made by the 5th respondent for construction of a school building which according to him was necessitated on account of Ext. R5(a) Govt. Order requiring the construction of buildings in respect of pre-KER schools. On the allegation that the construction proposed was encroaching into a road passing through the western boundary of the school, the petitioner filed Ext. P2 objection before the 2nd respondent. 3. The 2nd respondent before whom the application for building permit was also originally made forwarded the application along with the objection filed by the petitioner to the 1st respondent for his consideration. This was intimated to the petitioner by Ext. P3. W.P.(C) No. 17532 OF 2008 -2- 4. According to the petitioner, apprehending that the 1st respondent will proceed to consider the application ignoring the objections, he filed a writ petition before this Court as W.P.(C) No. 15887/08. That writ petition was disposed of by Ext. P4 judgment directing that the 1st respondent shall take note of the objections filed by the petitioner while orders are passed on the application made by the 5th respondent for building permit. Petitioner complains that despite the direction contained in Ext. P5 and although the directions therein were conveyed to the 1st respondent, the 1st respondent proceeded to pass Ext. P5 order without considering his objections. Counsel also makes reference to Exts. P7 to P9 orders and complains that since he was not granted any opportunity as directed by this Court. These documents could not be made available to the respondent. 5. The 5th respondent has filed a counter affidavit. According to him, it was on account of Ext. R5(a) Circular that the application itself was necessitated. It is also stated by him that the petitioner cannot have suffered prejudice since Ext. P5 has taken care of all possible contingencies. He would also submit that the Tahsildar W.P.(C) No. 17532 OF 2008 -3- and the RDO whose reports are now relied on by the petitioner against him, are hand in glove with the petitioner and those are interested records. He would also refer to Ext. R5(b) the Village Officer's report which states that there is no trespass to any public road as contended by the petitioner. 6. Irrespective of the controversies between the parties, the fact remains that the petitioner has filed Ext. P2 objection to the application made by the 5th respondent. That objection as is evident from Ext. P3 was forwarded to the 1st respondent for consideration along with the application. This Court also in Ext. P4 judgment directed that the 1st respondent shall consider the objections raised by the petitioner while orders are passed. However, Ext. P5 order was passed not only denying any opportunity to the petitioner to raise his objection but the consideration of any of his objection raised in Ext. P2 is not even reflected in the said order. Since this Court prima facie found in Ext. P4 judgment that his objection merits consideration, only on the ground that no prejudice has been caused to the petitioner, I am not inclined to say that his objections need not be considered by the 1st respondent. For this reason, I am W.P.(C) No. 17532 OF 2008 -4- not in a position to sustain Ext. P5. Therefore, Ext. P5 will stand quashed. 7. The 1st respondent shall reconsider the matter within 4 weeks of production of a copy of this judgment and before final orders are passed the 1st respondent shall give an opportunity to the petitioner and the 5th respondent to raise their objections in this matter. 8. Petitioner shall produce a copy of this judgment before the 1st respondent within a week from today and the 1st respondent shall pass orders as above. I make it clear that I have not entered into the merits of the controversy raised by both the petitioner and the 5th respondent and that it is only on the ground of not considering the petitioner's objections that I have interfered with Ext. P5. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE jan/-