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 TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 W.A.No. 1279 of 2008 ------------------------------------ AGAINST THE JUDGEMENT IN WPC.20495/2005 DATED 05/02/2008 .................... APPELLANT/2ND RESPONDENT: ---------------------------------------------- DR.P. SUDHAKARAN NAIR, PUTHUPPALLY HOUSE, KARIKODE, MULAMTHURUTHY, PIN - 682 314. BY ADV. SRI.T.N.HAREENDRAN RESPONDENTS/PETITIONER & IST RESPONDENT: ------------------------------------------------------------------------ 1. MULAMTHURUTHY GRAMA PANCHAYATH, MULAMTHURUTHY, REP. BY ITS SECRETARY. 2. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, BARTON HILL BUNGLOW, KUNNUKUZHI.P.O, THIRUVANANTHAPURAM-695 037. BY ADV.SRI.S.SREEKUMAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A.No.1279 of 2008 ------------------------------------------ Dated, this the 7th day of October, 2008 JUDGMENT H.L.Dattu, C.J. The appellant in this appeal was the second respondent in the writ petition filed by the Mulanthuruthy Grama Panchayat. (2) The first respondent herein was the writ petitioner. (3) In the writ petition filed, the Grama Panchayat had questioned the correctness or otherwise of the orders passed by the Ombudsman for Local Self Government Institutions, Thiruvananthapuram in Original Petition No.457 of 2002. (4) Before the learned Single Judge two issues were canvassed by the Grama Panchayat. The first issue was whether a notification in the gazette requires to be issued under Section 220(b) of the Kerala Panchayat Raj Act. The second issue was the building that was constructed by the contesting respondent was after 1.4.1997, the date of issuance of Ext.P4 notice, and not earlier as contended by the contesting respondent. (5) The learned Single Judge has answered the first issue against the Grama Panchayat. Aggrieved by that portion of the order passed by the learned Single Judge, the Panchayat is before us in a separate writ appeal and the same is pending consideration. W.A.No.1279 of 2008 2 (6) In this writ appeal, the contesting respondent has called in question the finding of the learned Single Judge in so far as the construction of the building, wherein the learned Judge has given a finding that the building was constructed after 1.4.1997. (7) The view of the Grama Panchayat is that the building in question is constructed after 1.4.1997, whereas the contesting respondent's submission before the Court was that there was an old building existed as on 1993 and the contesting respondent has made only certain improvements. The learned Judge has not accepted the version of the contesting respondent. Aggrieved by this finding of the learned Single Judge, the contesting respondent is before us in this writ appeal. (8) In our view, these are disputed facts. These disputed facts can be resolved only by directing the contesting respondent to approach the civil court or the competent authority under the provisions of the Kerala Panchayat Raj Act which can record the evidence of the parties and based on the evidence could come to a positive conclusion with regard to the date of construction of the building. (9) In our opinion, with the scanty materials that was produced by the parties to the lis, the learned Single Judge ought not to have given a finding on that aspect of the matter. In that view of the matter, that portion of the order where the learned Judge has given a W.A.No.1279 of 2008 3 finding to the effect that the building was constructed after 1.4.1997 and not earlier, cannot be sustained by us. (10) In that view of the matter, we set aside that portion of the order passed by the learned Single Judge and reserve liberty to the appellant/contesting respondent, if he so desires, to approach the appropriate civil court or the competent authority under the provisions of the Kerala Panchayat Raj Act, for appropriate reliefs. If and when such a civil suit or any other application is filed before the competent authority, the same shall be decided by the civil court or by the competent authority in accordance with law, without being influenced by any one of the observations made by the learned Single Judge on the aforesaid aspect of the matter. With these observations and directions the writ appeal is disposed of. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns