IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 WP(C).No. 10350 of 2011(P) -------------------------- PETITIONER: --------------- K.SIVADASA PANICKER, S/O.RAMANKUTTY PANICKER, AGED 44 YEARS, KALARIKKAL HOUSE, KOTTAPPURAM, KARIMPUZHA PANCHAYATH, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS: --------------- 1. THE KARIMPUZHA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KARIMPUZHA, PALAKKAD DISTRICT. 2. ALIPPU, S/O.LATE KUNHALAVI, PADUVIL HOUSE, KOTTAPPURAM P.O., KARIMPUZHA PANCHAYATH, OTTAPPALAM TALUK, PALAKKAD DISTRICT. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R2 SRI.T.C.SURESH MENON FOR R2 SRI.JIBU P THOMAS FOR R2 SRI.P.S.APPU FOR R2 SRI.A.R.NIMOD FOR R2 SRI.C.A.ANOOP FOR R2 SRI.MATHEWS RAJU FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/05/2011, ALONG WITH WPC NO. 27944 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10350 of 2011(P) APPENDIX PETITIONER'S APPENDIX: EXT.P1 : A TRUE COPY OF THE CERTIFICATE DATED 24.5.2000 ISSUED FROM THE DISTRICT HOSPITAL, PALAKKAD EXT.P2 : A TRUE COPY OF SALE DEED NO.565/2003 OF THE S.R.O. MANARKKAD EXT.P3 : A TRUE COPY OF THE BUILDING PERMIT DATED 5.9.2008 ISSUED BY THE 1ST RESPONDENT PANCHAYAT EXT.P4 : A TRUE COPY OF THE NOTICE DATED 5.11.2008 ISSUED BY THE 1ST RESPONDENT EXT.P5 : A TRUE COPY OF THE EXPLANATION DATED 9.12.2008 SUBMITTED BY THE PETITIONER IN RESPONSE TO EXT.P4 EXT.P6 : A TRUE COPY OF THE NOTICE DATED 26.6.2009 ISSUED BY THE RESPONDENT EXT.P7 : A TRUE COPY OF THE NOTICE DATED 9.4.2010 ISSUED BY THE 1ST RESPONDENT EXT.P8 : TRUE COPY OF THE ORDERS DATED 3.8.2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS EXT.P9 : TRUE COPY OF THE APPLICATION DATED 10.6.2010 SUBMITTED BY THE PETITIONER EXT.P10 : TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONER'S RESIDENTIAL BUILDING RESPONDENTS' ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE jma C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)Nos. 10350 of 2011 & 27944 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of May, 2011 J U D G M E N T Common issues founded on common factual matrix call for consideration in these writ petitions. Therefore, they were heard jointly and are being disposed of by this common judgment. The petitioner in the former writ petition is the second respondent in the latter writ petition that was filed by the second respondent in the former writ petition. The Karimpuzha Grama Panchayat is the common first respondent in these writ petitions. For the sake of convenience the parties and documents are referred to hereafter in the order they have been arrayed/marked in the former writ petition unless otherwise specifically mentioned. The petitioner applied and obtained Ext.P3 building permit and thereupon, started construction of a building in his property covered by Ext.P2 sale deed. The second respondent who is his next door neighbour, preferred a complaint before the first respondent Panchayat alleging violation of the provisions under the Kerala WPC.Nos.10350/11 & 27944/2010 : 2 : Building Rules and requested to prevent the petitioner from effecting construction. It is stated therein that the petitioner had been effecting construction in violation of the approved building plan as also Section 220(b) of the Kerala Panchayat Raj Act. It carried certain other grievances as well. Based on the said complaint Ext.P4 stop memo dated 5.11.2008 was issued to the petitioner calling upon him to stop the construction. Thereupon, Ext.P5 explanation dated 9.12.2008 was submitted by the petitioner. After conducting an enquiry into the same the second respondent orally informed the petitioner that the said proceedings have been dropped and thereafter the petitioner had continued with the construction and completed the construction, it is contended. Thereupon, the petitioner has submitted Ext.P9 application for occupation certificate and also for assignment of building number. Ext.P9 is dated 10.6.2010. It is attributing delay on the part of the first respondent in assigning building number to the aforesaid building even after the receipt of Ext.P9 that this writ petition has been filed. The second respondent herein filed the latter writ petition challenging Exts.P7 and P8 orders passed by the Tribunal for Local Self Government Department respectively WPC.Nos.10350/11 & 27944/2010 : 3 : in Appeal Nos.500/2010 and 501/2010 and also seeking for issuance of a writ of mandamus commanding the first respondent to initiate fresh proceedings against the second respondent therein viz., the petitioner in the former writ petition as directed in Ext.P7 order of the Tribunal for Local Self Government Institutions. 2. As already noticed hereinbefore, at the instance of the second respondent, initially Ext.P4 stop memo was issued to the petitioner by the first respondent Panchayat. The petitioner submitted Ext.P5 application dated 9.12.2008. According to the petitioner, he was informed, orally, that the proceedings were dropped and thereupon, he continued with the construction. Exts.P6 and P7 were then served on the petitioner. As per Ext.P6 Ext.P3 building permit was cancelled. As per Ext.P7 he was informed about the pendency of a case before the Ombudsman and he was asked to stop the construction. The petitioner, then, approached the Tribunal for Local Self Government Institutions by filing two appeals viz., one against the stop memo and the other against the revocation of the building permit. Ext.P7 in the latter writ petition is the order passed by the Tribunal in the appeal WPC.Nos.10350/11 & 27944/2010 : 4 : viz.,Appeal No.500/2010 filed against Ext.P6 order cancelling Ext.P3 permit. The said appeal was allowed and Ext.P6 order dated 26.6.2009 was set aside. Consequently, the Secretary of the Panchayat was directed to conduct proper local inspection and to prepare a report and to initiate fresh proceedings under rule 16 of the Kerala Municipality Building Rules/ under section 235W of the Kerala Panchayat Raj Act if there are reasons for doing so. 3. Ext.P8 in the latter writ petition is the order passed by the Tribunal in appeal No.501/2010 wherein the challenge was against Ext.P7 notice dated 9.4.2010 in the former writ petition viz., Ext.P2 in the latter writ petition. As per Ext.P8 Ext.P2 order dated 9.4.2010 was set aside and the appeal was allowed. In fact, the second respondent/the petitioner in the latter writ petition is aggrieved by Exts.P7 and P8 orders. 4. According to the petitioner the construction was completed in June, 2010. Ext.P10 is the photograph produced by the petitioner which would show that the construction of the building in question was completed. In fact the specific contention of the second respondent is that the construction was carried out after the issuance of Ext.P7. In that context it WPC.Nos.10350/11 & 27944/2010 : 5 : is apposite to refer the order in Ext.P7 and the same, so far, it is relevant, reads thus:- “In the result, the Appeal is allowed. The impugned order bearing No. A2-146/09 dated 26.6.2009 of the Secretary,Karimpuzha Grama Panchayat is set aside. The Secretary of the Panchayat is directed to conduct proper local inspection and to verify whether there are any grounds for initiating proceedings under Rule 16 of the Kerala Municipality Building Rules or/and under Section 235 W of the Kerala Panchayat Raj Act and to prepare detailed report and to initiate fresh proper proceedings, if any, as per law, without any unnecessary delay, if there are any reasons for doing so.” Thus, after interfering with the order dated 26.6.2009 passed by the Secretary of the Grama Panchayat, virtually liberty was granted to the Panchayat to initiate fresh proceedings if there are reasons for doing so. In other words there was no direction in Ext.P7 to the Secretary to initiate proceedings under section 16 of the Kerala Municipality Building Rules or to take action under section 235W of the Kerala Panchayat Raj Act. What was granted is nothing but a liberty to the Secretary of the Panchayat to take fresh proper proceedings in case there are reasons for doing so. It is also pertain to WPC.Nos.10350/11 & 27944/2010 : 6 : note that as per Ext.P7 the Secretary was also directed to conduct a proper local inspection to verify whether there is any ground for initiating such step. The learned counsel appearing for the Grama Panchayat submitted that such inspection did not reveal any violation of the building permit. At any rate, there is no case for the respondents that subsequent to Ext.P7 any other proceedings have been issued either under the KMBR or under the Kerala Panchayat Raj Act restraining the petitioner from effecting construction in the said property. In other words, there was no impediment at all for the petitioner to go on with the construction after Ext.P7. In the said circumstances, if the construction was continued and completed no one can attribute that it was done so in violation of any order. As already noticed hereinbefore, there is no case for the Panchayat that the subsequent to Ext.P7 they have issued any proceedings restraining the petitioner from going on with the construction. So also they did not have a case that the construction of the building was effected in violation of the building permit or in any order restraining the petitioner from continuing with the construction on the strength of Ext.P2 building permit. The property covered by WPC.Nos.10350/11 & 27944/2010 : 7 : Ext.P1 having an extent of 2 cents was evidently, purchased by the petitioner from the 2nd respondent. According to the petitioner, it was so purchased with a view to construct a small residential building. The plinth area of the building constructed is only 83.63 square metres. Evidently, its construction is over. The contention of the 2nd respondent is that he would not have parted with the property covered by Ext.P1 if the intention of the petitioner to construct a building thereon, was known to him. Having sold the property as per Ext.P1 sale deed no purpose would be served by making such a lamentation. In fact, it would reveal the mind of the 2nd respondent. The contention of the 2nd respondent is that though liberty was granted to the first respondent Panchayat to initiate fresh proceedings under Rule 16 of the KMBR or under Section 235 of the Kerala Panchayat Act no such proceedings were initiated. According to him, the petitioner has put up a massive structure right in front of his house. As already noticed, building constructed by the petitioner, going by the pleadings as also revealed from Ext.P3 building permit, and the plan and sketch appended to, is a construction having only 83.63 square metres and by no stretch of imagination a WPC.Nos.10350/11 & 27944/2010 : 8 : residential building of such a size can be considered as a massive structure. It is a small two storied residential building. To have a roof over the head is a dream of any common man. Construction of such a building cannot be permitted to stalled in the absence of specific, sustainable grounds. As already noticed, despite the liberty granted as per Ext.P7 order in the latter writ petition the first respondent had not so far initiated any fresh proceedings or restrained the petitioner from continuing and completing the construction on the strength of Ext.P3 building permit. Obviously, the first respondent had not found any reason for initiating any such fresh proceedings despite having such liberty going by Ext.P7 in the latter writ petition. Now, the construction has been completed. In the said circumstances, taking into account the fact that the construction of the building in question was already been completed and that upon such completion the petitioner has submitted Ext.P9 application for occupation certificate and for assigning building number and that it is pending consideration, I am of the considered view that the second respondent is bound to consider it and to take appropriate action thereon, in WPC.Nos.10350/11 & 27944/2010 : 9 : accordance with law. In that view of the matter WP(C) No.10350 of 2011 is disposed of with a direction to the first respondent Panchayat to consider Ext.P9 application for occupation certificate and for assignment of building number in accordance with law. It shall be done expeditiously, at any rate, within a period of one month from the date of receipt of copy of this judgment. In view of the discussion I am of the view that the latter writ petition viz., WPC No.27944/2010 is devoid of merits and it is liable to fail. Accordingly, it is dismissed. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge