IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WA.No. 1762 of 2010 --------------------- AGAINST THE JUDGEMENT IN WPC.22338/2010 Dated 07/09/2010 .................... APPELLANT/RESPONDENT: ----------------------------- MADAKATHARA GRAMAPANCHAYAT, ACKARAPPURAM, KURICHIKKARA P.O., THRISSUR-28, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.M.ANIL KUMAR RESPONDENT/PETITIONER: ----------------------------- JAYAPRAKASH.T., S/O.BHARATHI AMMA, AGED 44, KUTTIMUKKU, RAMAVARMAPURAM P.O., THRISSUR-680 631. ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No. 1762 of 2010 ------------------------------------------ Dated this the 4th day of November, 2010 JUDGMENT J.Chelameswar, C.J. The respondent in W.P.(C) No.22338 of 2010 is the appellant herein, aggrieved by the judgment dated 7th September, 2010. The sole respondent herein preferred the above mentioned writ petition. 2. The respondent herein had earlier approached this Court by way of W.P.(C) No.15214 of 2010 with a grievance that an application filed by him seeking a building permit under the provisions of the Kerala Municipality Building Rules, 1999 was not being considered by the appellant herein and therefore sought a direction to the appellant herein to consider his application in accordance with law. 3. Inspite of service of notice, the appellant herein did not choose to appear and contest the matter. The matter had to be W.A.No.1762 of 2010 - 2 - decided by this Court eventually ex parte against the appellant on the basis of the materials and averments placed before this Court by the writ petitioner/respondent herein. The respondent herein, it appears, submitted before this Court that his application for building permit is not being finalized on the ground that the predecessor in title of the respondent was required under law to relinquish the right, title and interest in a certain property belonging to him and in view of such non- relinquishment the application of the respondent herein was not being considered. In the absence of any rebuttal to the said statement the Court accepted the said statement and directed the appellant herein to consider the application of the respondent herein without reference to the relinquishment referred to above. 4. The appellant herein subsequently moved a review petition in W.P.(C) No.15214 of 2010 being R.P.No.580 of 2010. The said review petition was disposed of. Unfortunately, a copy of the order passed in the said review W.A.No.1762 of 2010 - 3 - petition is not made available to us. But, from the judgment under appeal it appears that the appellant only sought in the review petition for deletion of the second paragraph of the judgment wherein it was recorded that inspite of service of notice the Panchayat had not entered appearance. It does not appear from the materials on record that the appellant herein ever contended in the review petition that the application of the respondent herein cannot be considered in view of the fact that there was no approved lay-out in existence covering the area where the respondent proposes to construct the building. If only the appellant had taken such a ground and invited decision on the issue, it is known as to what would have been the result of the earlier writ petition, i.e. W.P.(C) No.15214 of 2010. The appellant accepted the finality of the said judgment and now rejected the application of the respondent by the order impugned in W.P.(C) No.22338 of 2010 on the ground that there was no approved lay-out for the area wherein the respondent seeks to W.A.No.1762 of 2010 - 4 - construct a building. 5. By the judgment under appeal the learned Judge held as follows: “So long as Ext.P2 judgment stands, the Panchayat cannot be heard to contend that unless the lay out of the internal roads, which provide access to the petitioner's land wherein he proposes to construct the building, is approved, a building permit cannot be issued. In such circumstances I am constrained to hold that Ext.P4 order passed by the Secretary of the respondent Grama Panchayat is one which is really in contempt of this Court.” 6. Though not expressly, the leaned Judge in substance held that the appellant herein is barred by the doctrine of constructive res judicata or a principle akin to it from raising such a contention as it was not their case in the earlier round of litigation between the appellant and the respondent. We do not see any reason to interfere with the conclusion reached by the learned Judge. On the other hand, we are of the opinion that the appellant is guilty of callousness and negligence in the conduct of litigation and the present appeal is a sheer abuse of the W.A.No.1762 of 2010 - 5 - process of the Court. The writ appeal is therefore dismissed at the admission stage with costs quantified at Rupees ten thousand. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns