IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 WP(C).No. 3788 of 2011(W) --------------------------------------- PETITIONER(S): -------------------------- C.K.MUSTHAFA, S/O.KUNHAHAMMED, CHEMBAMKUZHIYIL, EDAKKAL, ALIPARAMBA. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): --------------------------- 1. ALIPARAMBA GRAMA PANCHAYATH, PARAL, P.O.THOOTHA. REPRESENTED BY SECRETARY. 2. THE SENIOR TOWN PLANNER, OFFICE OF THE SENIOR TOWN PLANNER, THIRUVANANTHAPURAM. 3. CHERAKKATTIL ABDULLA, MANAGER, A.M.L.P.SCHOOL, EDAKKAL, VAZHANKADA. *ADDL.R4 IMPLEADED *R4: K.T.MUHAMMED, KOLLARUTHODI HOUSE, VAZHENKADA.P.O., EDAIKKAL, MALAPPURAM DISTRICT-679 357, PRESIDENT, PARENT TEACHERS ASSOCIATION, AMLP SCHOOL, EDAIKAL, MALAPPURAM DISTRICT. * ADDL.R4 IMPLEADED VIDE ORDER DATED 6/6/2011 IN I.A.NO.8222/2011 IN WP(C)NO.3788/2011(W) R1 BY ADV. SRI.U.K.DEVIDAS R3 BY ADV. SRI.MILLU DANDAPANI ADDL.R4. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.3788/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER OF THE SUB DIVISIONAL MAGISTRATE, PERINTHALMANNA P2 COPY OF THE ORDER DATED 20/01/2009 ISSUED BY THE 1ST RESPONDENT. P3 COPY OF THE JUDGMENT IN CRL.R.P.NO.4035 OF 2008. P4 COPY OF THE JUDGMENT WP(C)NO.4364 OF 2009. P5 COPY OF THE BUILDING PERMIT RESPONDENT'S EXHIBITS: R3(A) COPY OF THE DOCUMENT DATED 28/6/1963 EXECUTED BY MOIDEENKUTTY IN FAVOUR OF THE CHILDREN OF CHERAKKATTIL UNNIYAN. R3(B) COPY OF THE DOCUMENT NO.3522 OF 1992 EXECUTED IN FAVOUR OF THE PETITIONER, REFERREDTO IN THE COUNTER AFFIDAVIT. R3(C) COPY OF THE CIRCULAR NO.45743/(I)/MS/05 G.EDN.DATED 10/3/2006 OF THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (M) DEPARTMENT, GOVERNMENT OF KERALA. R3(D) COPY OF THE CIRCULAR NO.H2/77436/2007 DATED 17/12/2007 OF THE DIRECTOR, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. R3(E) COPY OF THE ORDER NO.SW2/86368/2008/D.P.I. DATED 18/5/2011 OF THE DIRECTOR, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. R3(F) COPY OF THE PLAINT DATED 17/7/2008 IN O.S.NO.120 OF 2008 FILLED BY THE 3RD RESPONDENT BEFORE THE MUNSIFF'S COURT, PERINTHALMANNA. R3(G) COPY OF THE WRITTEN STATEMENT DATED 2/2/2009 FILED BY THE DEFENDANTS IN O.S.NO.120 OF 2008 ON THE FILE OF MUNSIFF'S COURT, PERINTHALMANNA. R3(H) COPY OF THE COMMISSION REPORT DATED 13/10/2008 SUBMITTED BY ADV.SRI.C.R.RANJITH, ADVOCATE, IN O.S.NO.120 OF 2008 ON THE FILES OF MUNSIFF'S COURT, PERINTHALMANNA. R3(I) COPY OF THE SKETCH REFERRED TO IN THE COUNTER AFFIDAVIT. R3(J) COPY OF THE COMMISSION REPORT SUBMITTED BY ADV.SRI.C.R.RANJITH, IN FEBRUARY, 2002, IN O.S.NO.120 OF 2008 ON THE FILES OF MUNSIFF'S COURT, PERINTHALMANNA. /TRUE COPY/ sts P.S.TO.JUDGE HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.3788 Of 2011 ---------------------- Dated this the 1st day of December, 2011. J U D G M E N T The writ petition is filed for the following reliefs. i) To call for the records leading to the issuance of building permit - Ext.P5 - and quash the same by issuance of a writ of certiorari or any other writ, order or direction. ii) To issue a writ of mandamus or any other writ, order or direction commanding and compelling the Panchayath to initiate proceedings against the Secretary who issued the building permit in violation of the direction issued by this Court. iii) To declare that since the entire issue is pending before the civil court and this Court issued direction to maintain status quo the action of issuing building permit is highly unjust and illegal. 2. Ext.P5 is the copy of the building permit issued in favour of the 3rd respondent. According to the petitioner the 3rd respondent has caused obstruction to the public way passing through the western side of A.M.L.P. School, Edaikkal, Aliparamba Village. The petitioner submits that the construction of the building is intended in such a way totally blocking the said ::2:: W.P.(C).No.3788 Of 2011 public way. The intention behind obtaining Ext.P5 is to encroach upon the public road passing though the western boundary of the property, wherein the aided school is functioning. The 3rd respondent obtained Ext.P5 building permit for permission for reconstruction of the school building. The petitioner lodged a complaint before the RDO stating that he and his family are using the public road that lies on the western boundary of the school compound and alleging that the 3rd respondent had caused obstruction to the public road. The RDO by Ext.P1 order held that there exist a road passing though the western boundary of the A.M.L.P School and the same was obstructed by the 3rd respondent, who is the counter petitioner in C.M.P.No.8/07. Ext.P1 is the order passed by the RDO. The RDO directed the counter petitioner (3rd respondent) to remove the obstruction made by constructing steps and to make the road in the same condition before causing obstruction. 3. The 3rd respondent filed Crl.R.P.No.4035/2008 before this Court challenging Ext.P1 order. Ext.P3 is the copy of the order in Crl.R.P.No.4035/2008. This Court noticed the pendency ::3:: W.P.(C).No.3788 Of 2011 of O.S.No.120/2008 filed by the 3rd respondent for a permanent prohibitory injunction to restrain the petitioner herein alleging that he had been attempting to trespass in to the plaint schedule property. Plaint schedule property referred to by this Court is the school compound. This Court also took note of the commission report. This Court held that the RDO should have refrained from passing Ext.P1 order. This Court also observed that on a prima facie perusal of the report of the commissioner would show that there existed no path way leading to the property of the respondent (petitioner herein). This Court allowed the Crl.R.P.No.4035/2008, set aside Ext.P1 order and remitted the matter to the lower authority for fresh disposal after the disposal of O.S.No.120/2008. This Court also held that till the matter is decided by the court below the proceedings would stand stayed under Section 137(2) Crl.P.C and that the parties are bound to maintain status quo till the disposal of the suit or until otherwise ordered by the civil court or thereafter an order is passed by the lower court, in case it was warranted. The 3rd respondent is the Manager of A.M.L.P School and he is the owner of 28 cents of ::4:: W.P.(C).No.3788 Of 2011 property wherein the School is situated. The 3rd respondent filed W.P.(C).No.4364/2009, aggrieved by the communication marked as Ext.P7 in the said writ petition issued by the Grama Panchayath, whereby the request of the petitioner for permission to construct the building was kept in abeyance awaiting final judgment in Crl.R.P.No.4035/2008. When the said writ petition was taken up for final hearing the 3rd respondent, who is the petitioner, brought to the notice of this Court Ext.P3 judgment in Crl.R.P.No.4035/2008. W.P.(C).No.4364/2009 was disposed of directing the petitioner therein to produce the judgment in Crl.R.P before the Panchayath. The 4th respondent in the said writ petition is the petitioner herein. The writ petition was disposed of directing the Panchayath to hear the parties and pass appropriate orders. 4. The present writ petition is filed alleging that the Panchayath has issued Ext.P5 building permit in favour of the 3rd respondent in violation of the directions issued by this Court. According to the petitioner, the specific direction of this Court in Crl.R.P.No.4035/2008 was to maintain status quo until a decision ::5:: W.P.(C).No.3788 Of 2011 is taken by the civil court and that the attempt of the 3rd respondent is to encroach upon the pathway and to keep the same in his possession. It is also alleged that there is sufficient space in the School compound to reconstruct the school building excluding the pathway. It is further alleged that the attempt of the 3rd respondent by obtaining Ext.P5 permit is to construct the school building encroaching upon the pathway. The petitioner contends that this Court issued directions to maintain status quo till the civil suit is disposed of and therefore, the grant of Ext.P5 building permit is illegal and liable to be interfered by this Court. 5. During the course of hearing, the learned senior counsel for the 3rd respondent pointed out that an ex-parte decree was passed in O.S.No.120/2008. The petitioner herein has filed an application for setting aside the ex-parte decree and the same is pending consideration before the civil court. It is also pointed out that recently the petitioner filed O.S.No.118/2011 before the civil court and the same is pending consideration before the civil court. It is pointed out that the dispute raised by the writ petitioner is regarding the right of way ::6:: W.P.(C).No.3788 Of 2011 through a public road lying on the western boundary of his property. The status quo ordered by this Court also relates to the public road alleged to be in existence on the western boundary. Learned senior counsel for the 3rd respondent submits that the 3rd respondent is proposing to construct a building in the 28 cents of land excluding the portion alleged to be used as public road. Therefore, there is nothing wrong in the Panchayath in granting the permit as requested by the 3rd respondent. The 3rd respondent in his capacity as manager and owner of the property is entitled to make constructions in his property. The status quo ordered by this Court is confined to the dispute regarding the existence of pathway. Therefore, there is nothing wrong in the 3rd respondent applying for permit and making constructions in accordance with the permit. It is pointed out that the building to be constructed is not touching any portion of the alleged road. The learned counsel also pointed out that Ext.P6 plan would show that on the western side of the alleged pathway, an extent of 6.54 metres had been kept open and the extent on the southern side is 6.41 metres. It is submitted that ::7:: W.P.(C).No.3788 Of 2011 after setting apart sufficient space for alleged pathway a plan was submitted for granting permit and Ext.P5 order has been passed by the Panchayath. It is also pointed out that the plan was sanctioned after hearing the petitioner as well. It is also pointed out that on a perusal of Ext.P4 judgment it is clear that an opportunity had been given to the petitioner to produce the judgment, Ext.P3, before the Panchayath and the Panchayath was given further opportunity to take action after hearing the necessary parties including the petitioner. Therefore, it is contended that the petitioner cannot assail that Ext.P5 is passed in violation of the directions of this Court. 6. The 3rd respondent submits that the property wherein the school building is situated is having an extent of 28 cents and that the said property was acquired way back in 1963 from other members of his family. Ext.R3(a) is the copy of the title deed. It is also pointed out that the property on the northern side of the school compound was also purchased by the 3rd respondent in the year 1992 and that he had constructed a new residential house in that property. It is pointed out that the document of title in ::8:: W.P.(C).No.3788 Of 2011 respect of the said property would show that the southern side of the property is a school compound that on the northern side a pathway is provided having an extent of 7 feet width and the predecessor of the petitioner is making use of way on the northern side for entering into their property. It is also pointed out that the school building was put up prior to Kerala Education Act, 1958, that the building was constructed more than 100 years back and to protect the interest of the students, the petitioner wanted to put up a new school building. The petitioner also pointed out that as per circular No.1515/2006 dated 10.3.2006 issued by the Secretary to Government, there is a direction to construct new building replacing the very old buildings for ensuring the safety of the students. It is also pointed out that the Director of Education had issued an order dated 18.5.2011 to the effect that action to be taken against the managers of 33 schools for not taking measures for providing infrastructure for the school and 3rd respondent’s school is one among the enlisted school. Ext.R3 is the copy of the order dated 18.5.2011. The 3rd respondent contends that Exts.R3 and R3(a) would substantiate ::9:: W.P.(C).No.3788 Of 2011 his case that it was mandatory as far as the schools which are constructed prior to the Act to carry out renovation and further putting up of new school buildings is for protecting the safety of the students. It is submitted that to comply with the directions in the circular, the petitioner has to construct a new building after demolishing the existing school building. The petitioner also produced the commission report and sketch marked as Exts.R3 (h) & R3(i) in O.S.No.120/2008. It is submitted that a second commission report was called for and the commissioner in the second report has categorically stated that there is no way mentioned in survey No.118/3B which has been claimed by the petitioner. It is also submitted that in the light of the interim order passed by this Court, the 3rd respondent could not take steps for constructing the building though permit has been granted on 9.12.2010. 7. In the counter affidavit filed, it is specifically stated that the construction of the building is proposed to be carried out in the property of the 3rd respondent leaving sufficient space on the western boundary. The construction of the building will not in ::10:: W.P.(C).No.3788 Of 2011 any way affect the alleged existence of the public road claimed by the petitioner. If the construction proposed to be carried out without affecting in any manner the alleged road portion there is no reason for the petitioner to contend that the construction of the building is in violation of the directions issued by this Court. In fact, this Court in Ext.P3 judgment directed the parties to maintain status quo in relation to the alleged road on the western boundary. The order of status quo passed by this Court pending disposal of O.S.No.120/2008 is not intended to restrain the 3rd respondent from making construction or improving his property which is lying adjacent to the alleged public road. The order of status quo passed by this Court is in respect of the subject matter involved in Crl.R.P.No.4035/2008. 8. In the counter affidavit filed by the Panchayath it is inter alia stated that the 3rd respondent has maintained 4.20 metres distance from the western boundary of the compound as per the building plan submitted by him. It is also submitted that the officials of the Grama Panchayath conducted inspection and detailed enquiry. It is stated that in the report it is ::11:: W.P.(C).No.3788 Of 2011 recommended that if the 3rd respondent will submit a plan with maintaining statutory distances as per the KMBR excluding the disputed pathway on the western boundary of his property, building permit can be granted to him. Ext.R1(b) is the report. It is further stated that after a detailed enquiry the Panchayath decided that there is no bar for the Panchayath to grant building permit without disturbing the subject matter of the dispute. It is stated in the counter that as per Ext.P5 building permit the existence of pathway will not be affected in any way. For the aforesaid facts and reasons, this Court is of the view that the writ petition filed by the petitioner is devoid of any merit and accordingly, it is dismissed. HARUN-UL-RASHID, Judge. bkn/-