IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 WP(C).No. 30167 of 2011(U) --------------------------------------- PETITIONER(S) : ---------------------- JAYAN ASARI, S/O. NARAYANAN ASARI, AGED 46, THIRUVONAM STUDIO ROAD, PAPPANAMCODE, THIRUVANANTHAPURAM, PIN-695019. BY ADVS. SRI. P.MARTIN JOSE SRI. M.A.MOHAMMED SIRAJ SRI. P.PRIJITH SRI. ANEESH JAMES RESPONDENT(S) : ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT (RURAL ADMINISTRATION) DEPT., THIRUVANANTHAPURAM-695001. 2. THE SECRETARY, VENGANOOR GRAMA PANCHAYATH, VENGANOOR, THIRUVANANTHAPURAM DISTRICT, PIN-695523. R1 BY GOVT. PLEADER SRI. MOHAMMED SHAH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: NS W.P.C. NO. 30167/2011 APPENDIX PETITIONER(S) EXHIBITS : P1 : COPY OF DOCUMENT NO.1291 OF 2005 DATED 28/4/2005 OF VIZHINJAM SRO. P2 : COPY OF BASIC TAX RECEIPT DATED 24/7/2010 FOR PAYMENT OF BASIC TAX. P3 : COPY OF RELEVANT PORTION OF ASSESSMENT REGISTER OF THE PANCHAYATH. P4 : COPY OF RESIDENTIAL CERTIFICATE ISSUED TO AJAYA MOHANAN DATED DATED 13/02/2004. P5 : COPY OF BUILDING PERMIT NO.114/10-11 DATED 30/7/2010 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P6 : COPY OF ORDER DATED 11/5/2011 ISSUED BY THE 2ND RESPONDENT PANCHAYATH. P7 : COPY OF ORDER DATED 24/6/2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P8 : COPY OF ORDER IN APPEAL NO.501/2011 DATED 30/9/2011 OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. P9 : TRUE COPY OF ORDER DATED 23/1/2011 ISSUED BY THE IST RESPONDENT TO THE DIRECTOR OF PANCHAYATH. RESPONDENTS' EXHIBITS : NIL / TRUE COPY / P.A. TO JUDGE NS HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No.30167 of 2011 --------------------------------------- Dated this the 14th day of November 2011. JUDGMENT The writ petition is filed seeking to quash Ext.P9 and for a direction commanding the 2nd respondent to dispose of Ext.P7 uninfluenced by the findings and observation in Ext.P9. 2. Petitioner obtained Ext.P5 building permit for construction of 2 floors above the existing building. The 2nd respondent issued Ext.P6 order cancelling Exts.P5 permit and issued P7 provisional order to demolish the building alleging that the construction violates Rules 24(5) and 25(1) of the Kerala Kerala Municipality Building Rules. The tribunal by Ext.P8 order set aside Ext.P6 order. Petitioner submits that the findings in Ext.P9 order passed by the Government that the building is constructed violating Rule 24 & 25 of the Kerala Municipality Building Rules is incorrect and happened to be made without observing Rule 100 of the Kerala Municipality Building Rules. According to the petitioner, by virtue of 100 of the Kerala Municipality Building Rules provision of Rule 24 & 25 of the W.P.(C) No.30167/2011 2 Rules are not applicable since the construction of the building is above the building in existence as on 20.3.2000. 3. Alleging violation of the building rules, 2nd respondent issued Ext.P7 provisional order. It is also contended that Kerala Municipality Building Rules or Panchayat Raj Act does not empower the first respondent to pass Ext.P9 order. It is pointed out that if there is any unauthorised construction, 233(w) of the Panchayat Raj Act empowers the Secretary to proceed under the Act and an appeal to the Tribunal is provided under the Act. In the circumstances, the petitioner submits that Ext.P9 order passed by the first respondent is not legally sustainable. 4. When the matter was taken up for consideration in the admission list today, learned counsel for the petitioner pointed out that Ext.P7 proceedings is pending consideration before the 2nd respondent and requests this Court to issue a direction directing the 2nd respondent to consider and pass orders after considering the contentions raised by the petitioner and after affording an opportunity of being heard to the petitioner. 5. In view of the fact that the relief is limited to the W.P.(C) No.30167/2011 3 consideration of the contentions raised by the petitioner before passing final order, this Court is of the view that the writ petition can be disposed of without issuing notice to the respondents. 6. In the facts and circumstances, the writ petition is disposed of directing the Secretary to pass final order on Ext.P7 proceedings after considering the contentions raised by the petitioner uninfluenced by the findings and observations in Ext.P9 within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. HARUN-UL-RASHID JUDGE al