IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WP(C).No. 8143 of 2009(K) ------------------------- PETITIONER(S): --------------- SOMA ENTERPRISE LTD,WARD NO.2,GODOWN ROAD,CHERANALLOORE,KOCHI-682034,REPRESENTED BY ITS DEPUTY GENERAL MANAGER,P.S.R.KOTESWARA RAO. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI SMT.G.SAARIKA RESPONDENT(S): --------------- 1. AYYAMPUZHA GRAMA PANCHAYAT,AYYAMPUZHA, ERNAKULAM DISTRICT,REPRESENTED BY ITS SECRETARY. 2. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT,LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. ADV. SMT.MEREENA JOSEPH FOR R1 GOVT. PLEADER SMT. K.R. DEEPA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: WPC NO. 8143/2009. ----------------------------------------------------------------- EXT.P1 PHOTOCOPY OF LETTER DT. 6-9-2007. EXT P2 OBJECTION CERTIFICATE DT. 26-6-2007 EXT.P3 INTERIM ORDER DT. 19-12-2007 IN W.P.C.NO. 32369/2007.S EXT.P4 JUDGMENT IN W.A.NO. 203/2008. EXT.P5 REPORT DT. 17-1-2008. EXT.P6 ORDER DT. 31-3-2008. EXT.P7 INTERIM ORDER DT. 1-9-2008 IN W.P.C. NO. 32369/2007. EXT.P8 REPORT DT. 26-9-2008. EXT.P9 INTERIM ORDER DT. 17-12-2008 IN W.P.C.NO. 32369/07. EX.P10 CONSENT DT. 22-1-2009. EXT.P11 RESOLUTION DST. 20-2-2008. EXT.P12 RESOLUTION DT. 10-4-2008. EXT.P13 REPRESENTATION DT. 28-1-2009. EXT.P14 COMMUNICATION DT. 11-2-2009. EXT.P15 NO OBJECTION CERTIFICATE DT. 21-2-2009. EXT.P16 DO. DT. 13-2-2009. EXT.P17 DO. DST. 18-2-2009. EXT.P18 RESOLUTION DST. 20-2-2008. EXT.P19 LETTER DT. 21-2-2009. EXT.P20 CERTIFICATE DST. 5-3-2009. EXT.P21 APPLICATION DT. 27-2-2009. EXT.P22 PHOTO GRAPHS REFERRED TO IN THE WRIT PETITION. EXT.P23 RESOLUTION PASSED BY R1 IN THE MEETING HELD ON 11-3-2009. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 8143 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd April, 2009. J U D G M E N T The petitioner originally filed this writ petition seeking the following reliefs: “(i) Call for the records leading to the case and issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exhibits P11, P12 and P19 Resolutions. (ii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent Panchayat to take a decision on Ext. P 21 application forthwith, and permit the petitioner to erect retaining wall on the banks and cover the thodu within the premises of the petitioner's property with G.I. Sheet and also to retain the conveyor connecting the primary and secondary Units of Crushers of the petitioner, so as to enable the petitioner to run the Crusher.” 2. During thependency of the writ petition, the Panchayat has passed Ext. P 23 order. The petitioner has sought amendment of the writ petition challenging that order. When the I.A seeking amendment came up for hearing, the Court opined that Ext. P23 order is an appealable order and therefore the petitioner has to seek appellate remedies first. But, the petitioner wanted to advance arguments on the question as to whether Ext. P23 is an appealable order. Arguments were heard on the same. 3. The petitioner's contention is that no appeal would lie against Ext. P23 order either under Section 276(1) or (4) of the Kerala Panchayat Raj Act. Thereafter, the petitioner advanced arguments on the question as to whether an appeal would lie under sub-section (5). According to the petitioner, an appeal would lie against Ext. P23 order only if it comes under any of the subjects, namely, (a) and (b) stated therein or those prescribed by Rules. According to the petitioner Ext. P23 is not an order coming under (a) and (b) or any of the matters prescribed in the schedule to the Tribunal for Local Self Government W.P.C. No. 8143/09 -: 2 :- Institutions Rules, 1999. Therefore, according to the petitioner, this Court should entertain the challenge against Ext. P23. 4. I have considered the arguments of the petitioner. 5. Section 276 (5) reads thus: “276. Appeal and Revision:- xx xx xx (5) An appeal on any notice issued, order passed, or action taken by the Panchayat or a revision on a decision taken by the Panchayat or Standing Committee on any appeal shall lie to the Tribunal Constituted under Section 271 S, provided that such appeal or revision shall be confined only on the following subjects and relating to other subjects as may be prescribed for the purpose, namely:- (a) Assessment, demand and collection of taxes or fees or cess; (b) Grant of permission and licences for trades factories, markets and other establishments.” Ext.23 order reads thus: W.P.C. No. 8143/09 -: 3 :- 6. I am of opinion that Ext. P23 would certainly be an order on an application for permission as contemplated under sub-section (b). In so far as the construction of a conveyor belt certainly amounts to construction of a building, that would also come within item 12 of the Schedule to the Tribunal for Local Self Government Institutions Rules, 1999. Hence, I am of opinion that Ext. P 23 is an appealable order. Therefore, I am not inclined to entertain this writ petition. In the above circumstances, without prejudice to the right of the petitioner to challenge Ext. P23 in an appeal as provided under Section 276(5) of the Kerala Panchayat Raj Act, this writ petition is disposed of. S. Siri Jagan, Judge. Tds/