IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 WP(C).No. 7906 of 2008(N) ------------------------- PETITIONER: ------------ 1. ABRAHAM, S/O. GEORGE, AGED 47 YEARS, KANDATHIPARAMBIL HOUSE, KANTHALAM PARA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 2. SHERLY, W/O.ABRAHAM, AGED 40 YEARS, KANDATHIPARAMBIL HOUSE, KANTHALAM PARA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.A.C.DEVASIA RESPONDENTS: ------------- THE KATTAPPANA GRAMA PANCHAYAT, REPRESENTED BY SECRETARY, PANCHAYATH OFFICE, KATTAPPANA.P.O., KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE, J. ------------------------- W.P.(C) No. 7906 of 2008 --------------------------------- Dated, this the 7th day of March, 2008 J U D G M E N T Under challenge in this writ petition is Ext.P9 notice issued by the Panchayat directing the petitioners, who are constructing a shopping complex as revealed by Ext.P13 on the basis of Ext.P5 building permit and Ext.P3 approved plan. The Panchayat has in the first instalance issued Ext.P7 provisional order to the petitioners for stopping the constructions on the ground that the constructions are in deviation from the approved plan. Later the petitioners submitted Ext.P8 reply. The Panchayat did not pursue Ext.P7 and the petitioners were permitted to continue with the constructions. The constructions are as revealed by Ext.P13 photographs. At this juncture, the petitioners are issued with Ext.P9 order, which is a notice-cum-order for demolition on the ground that the local public have complained that the petitioners are encroachers upon the property belonging to the Panchayat and acquired by the Panchayat for establishment of a bus stand. The petitioners rely on Ext.P4 sketch to support their case that there is no scope for any boundary dispute between the Panchayat and them regarding the property and that the constructions by them are all confined to the property WP(C) No. 7906/2008 -2- belonging to them by virtue of Ext.P1. In this writ petition they pray that Ext.P9 be quashed and that they be permitted to continue with the construction without any obstruction or hindrance from the Panchayat or anybody else. 2. Shri.A.C.Devassia, learned counsel for the petitioners addressed me very extensively on the various grounds raised. I feel that, essentially, the dispute now is as to whether the plot, upon which the petitioners are constructing the shopping complex pursuant to the building permit, takes any portion of the Panchayat land. Significantly, the Panchayat even at the time when Ext.P7 was issued did not have such an allegation. The idea of the Panchayat property being included in the construction site of the petitioners struck the Panchayat only when the local public filed the complaints. Under these circumstances, I am of the view that the issue should be got resolved by means of a statutory appeal which is available under Section 276 of the Panchayat Raj Act. I relegate the petitioners to statutory remedies on Ext.P9 and dispose of the writ petition accordingly. However, in view of the merits prima facie noticed in the grounds raised by the petitioners, I permit the petitioners to construct the building strictly in terms of the building WP(C) No. 7906/2008 -3- permit issued by the Panchayat and the approved plan at their risk and subject to the out come of the appeal. The petitioners are reminded that if the decision in the appeal comes to be against the petitioners, they will become liable even to demolish those portions of the constructions which are found to be put up at Panchayat land. The appeal, if any, against Ext.P9 shall be preferred by the petitioners within a period of three weeks from today. It is open to either of the parties to apply to the Tribunal for measurement of the properties so that the issue can be resolved perfectly and correctly. (PIUS C.KURIAKOSE, JUDGE) jg