IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 W.A.No.1691 of 2008 -------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.5659/2008 DATED 25/02/2008 .................... APPELLANT/NOT PARTY IN THE W.P.(C):- ------------------------------------------------------------ MANIMEKHALA, W/O.ACHUTHAN NAIR, SREERAGAM VEEDU, T.C.8/759, MEDICAL COLLEGE PO., CHERUVAIKKAL VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.C.RAJENDRAN RESPONDENTS/PETITIONER & RESPONDENT NOS.1 TO 4 IN THE W.P.(C):- ---------------------------------------------------------------------------------------------------------- 1. VINU KRISHNAN, AGED 33 YEARS, S/O.RADHAKRISHNAN, RESIDING AT CHARUVILAKATHU HOUSE, MEDICAL COLLEGE P.O., PATTOM VILLAGE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARYTO THE GOVERNMENT OF KERALA, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. 3. CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETRARY, OFFICE OF THE THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM. 4. THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, OFFICE OF THE THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM W.A.NO.1691 OF 2008. - 2 - 5. THE TOWN PLANNING OFFICER, CORPORATION OF THIRUVANANTHAPURAM, OFFICE OF THE THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM. R1 BY ADV.SRI.RI.G.P.SHINOD, SRI.RAM MOHAN.G. & SRI.MANU V. R2 BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. R3 TO R5 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) & SRI.P.K.MANOJKUMAR. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A. No. 1691 of 2008 ------------------------------------------ Dated, this the 15th day of September, 2008 JUDGMENT A.K.Basheer, J. This writ appeal is preferred against the judgment in W.P.(C) No.5659 of 2008 dated 25.2.2008 by a third party after obtaining leave of this Court. By the impugned judgment, respondent No.1/petitioner has been allowed to construct a building in his property on the strength of Ext.P1 Building Permit issued by the Corporation of Thiruvananthapuram. 2. The primary grievance of the appellant is that respondent No.1/petitioner has managed to obtain the above order in his favour from this Court suppressing certain vital facts and materials. 3. The case of the appellant appears to be that respondent No.1 had purchased a small plot having an extent of 1.25 cents (2 cents according to respondent No.1) adjoining to her property from one Rajan. The appellant contends that Sri.Rajan had started construction of a building in the said land trespassing into her property. This was objected to by the appellant before the Ombudsman for Local Self Government Institutions. Subsequently, respondent No.1/ petitioner was also impleaded in the proceedings before the Ombudsman, since during the pendency of the proceedings it was revealed that Sri.Rajan had assigned W.A.No.1691 of 2008 2 the said property to the first respondent. 4. It is on record that the Secretary of the Thiruvananthapuram Corporation who was respondent No.1 in the proceedings before the Ombudsman, had informed the Ombudsman that the permit issued to the first respondent had been revoked. The original petition was closed by the Ombudsman recording the above submission made by the Secretary of the Thiruvananthapuram Corporation. 5. According to respondent No.1, when he had proceeded with the construction in the property, he was served with Ext.P2 order issued by the Corporation directing him to stop the construction activity. Aggrieved by the said order, the first respondent had filed the writ petition before this Court praying for a direction to the Corporation to permit him to make the construction in accordance with Ext.P1 Building Permit issued in his favour. The other prayer was to quash Ext.P2 order issued by the corporation revoking the permit issued in his favour. 6. The learned Single Judge disposed of the writ petition allowing the prayer made by the first respondent, albeit, on certain conditions. The first respondent was directed to file an undertaking in the form of an affidavit before the Corporation stating that in the event of promulgation of a notification under Section 4(1) of the Land Acquisition W.A.No.1691 of 2008 3 Act for acquisition of the property, in respect of which Ext.P1 Building Permit had been issued, within one year from the date of the order, the first respondent/petitioner would surrender the property as well as the building constructed on the strength of Ext.P1 without claiming any compensation for the building. Consequently, the learned Single Judge had quashed Ext.P2 order issued by the Corporation revoking the permit issued to the first respondent. 7. It is contended by the learned counsel for the appellant that the first respondent had managed to get Ext.P2 order of revocation quashed by this Court behind her back suppressing the fact that the Secretary of the Corporation had informed the Ombudsman that the permit issued in favour of the first respondent had been cancelled or revoked, since it was found to be an unauthorised construction. It is also pointed out that Ext.P2 order which was issued in November, 2005 was challenged before this Court only in 2008. 8. Prima facie, we are satisfied that there is some force in the contention raised by the learned counsel for the appellant. The primary objection raised by the appellant with regard to the construction of the building in the property was upheld by the Corporation earlier. Accordingly the permit issued in favour of respondent No.1 was revoked. W.A.No.1691 of 2008 4 9. There is nothing on record to show that the Corporation had issued a fresh permit to the first respondent. But it is submitted by the learned counsel for the first respondent that the construction of the building is now almost over. However, it is the admitted position that the Corporation had earlier revoked the Building Permit. Therefore, in our view, the said construction can be only subject to the ultimate decision that has to be taken in the changed scenario. The objections, if any, that are available to the appellant, have to be necessarily considered by the Corporation. If, in fact, there is any substance in the objections raised by the appellant, we are of the view, that the Corporation has to take note of those objections. 10. Having regard to the entire facts and circumstances, we are satisfied that the judgment of the learned Single Judge is liable to be set aside. We do so. 11. Learned counsel for the appellant submits that the appellant will be satisfied if the Corporation is directed to take a fresh decision in the matter after hearing the appellant. Learned counsel for the first respondent also has no objection in relegating the parties to the Corporation for taking a fresh decision in the matter. Learned Standing Counsel for the Corporation submits that the Corporation is prepared to W.A.No.1691 of 2008 5 look into the entire matter and take a fresh decision. 12. The Corporation shall take a decision in the matter, after hearing the parties in accordance with law, within a period of four weeks from today. It is made clear that the fate of the construction, if any, made by respondent No.1 shall be subject to the decision to be taken by the Corporation. Writ appeal is disposed of as above. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns