IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 WP(C).No. 133 of 2011(N) ------------------------------------- PETITIONER(S): ----------------------- AIYSHA, AGED 57, W/O.MOIDU, EDATHILPOYIL HOUSE, P.O.PERINGATHUR, THALASSERY, KANNUR. BY ADVS. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR RESPONDENT(S): ------------------------- 1. PERINGALAM GRAMA PANCHAYATH, PERINGATHUR P.O., THALASSERY, KANNUR, REPRESENTED BY SECRETARY-670675. 2. SECRETARY, PERINGALAM GRAMA PANCHAYATH, PERINGATHUR P.O., KANNUR- 670675. 3. DEPUTY DIRECTOR OF PANCHAYATH, KANNUR-670001. R1 & R2 BY ADV. SRI.R.SURENDRAN R3 BY GOVT. PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.133 of 2011 ---------------------------------------- Dated 21st February, 2011 JUDGMENT The petitioner is one of the co-owners of the property comprised in Re-survey No.2/6B of Peringathur Village. After obtaining approval of plan and permit to effect construction of a shop building thereon they have constructed the ground floor with 92.33 Sq.m and first floor with 76.89 Sq.m plinth area. The learned standing counsel for the Panchayat submitted that in fact, prior to the issuance of Ext.P1 building permit, the petitioner was granted building permit to effect construction of the ground floor and in Ext.P1 permit permission with respect to the construction of ground floor was in fact, wrongly included. After completion of the construction, the petitioner has submitted an application for completion certificate and also requested to number the building and to issue occupancy certificate. As per Ext.P2, the second respondent declined to number the building on the ground that construction of the first floor is in violation of the Kerala Municipality Building Rules inasmuch as, the distance rule was violated. Feeling aggrieved by the same, the petitioner has preferred an appeal before the third respondent. The third respondent rejected the appeal as per Ext.P3. It is challenging Ext.P3 WP(C).No.133/2011 2 that this writ petition has been filed. 2. I have heard the learned counsel for the petitioner and also the learned standing counsel for respondents 1 and 2. 3. Essentially, the contention of the petitioner is that the third respondent was lacking jurisdiction to entertain the appeal against Ext.P2. In other words, the appeal was preferred before a wrong forum and, according to the petitioner, Ext.P3 order passed by the third respondent without any jurisdiction is a nullity. Therefore, the petitioner seeks permission to prefer an appeal before the competent authority viz., the first respondent, raising grievances against Ext.P2. In terms of the provisions under section 276(1) of the Kerala Panchayat Raj Act appeal against Ext.P2 should have been filed within 30 days. The petitioner has in fact, preferred such an appeal but before a wrong forum. Therefore, the petitioner seeks a further direction to the appellate authority to consider the appeal, as and when it is preferred with permission of this Court, as an appeal preferred within the time limit and to consider and pass orders thereon on merits. Ext.P3 would reveal that even after entering into the finding that the appeal is not maintainable the third respondent has entered into a finding with respect to the merits of the contentions. There cannot be any doubt that when an authority lacks jurisdiction to WP(C).No.133/2011 3 entertain a matter, that authority while holding that matter as not maintainable should refrain from making any observation touching its merits. The learned standing counsel for the Panchayat would also submit that the competent authority to consider the appeal against Ext.P2 is the first respondent under section 276(1) of the Act. In view of the said position obtained in this case, Ext.P3 is set aside to enable the first respondent to consider the appeal, in accordance with law. Consequently, the third respondent is directed to return the appeal to the petitioner so as to enable the petitioner to present the same before the first respondent. This shall be done by the third respondent within two weeks from today. On receipt of the appeal from the third respondent the petitioner shall present the same before the first respondent within a week thereafter. In case the petitioner presents the appeal, within the above stipulated time, the first respondent shall treat the appeal as having presented within the time limit and proceed to consider the same on merits, expeditiously. The writ petition is disposed of accordingly. Sd/- C.T.RAVIKUMAR Judge TKS