IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(C).No. 5563 of 2006(K) ------------------------- PETITIONER: --------------- P.S.DHANANJAYAN, S/O.SREEDHARAN, AGED 33, PEEDIKAPARAMBIL, AOOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. SMT.R.UDAYA JYOTHI SRI.V.N.MADHUSUDANAN. SRI.B.PRAMOD RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, GRAMA PANCHAYATH AROOR, AROOR VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 3. T.P.HARIDAS, S/O.PARAMESWARAN PILLAI, AGED ABOUT 53, THOPPU VELIYIL, AROOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. ADDL. RESPONDENT: 4. ANAZ, S/O.SAIDUMUHAMMED, RESIDING AT MANALUMPARA, AROOR P.O., CHERTHALA, ALAPPUZHA DIST. (ADDL. 4TH RESPONDENT IS IMPLEADED AS PER ORDER DT.26.11.2009 IN I.A. NO.14359/2009.) G.P. SRI.LAKSHMI NARAYAN FOR R1 ADV. SRI.D.SOMASUNDARAM FOR R3 SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R2 SRI.S.SUJIN FOR R2 SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR ADDL.R4 SRI.T.C.SURESH MENON FOR ADDL.R4 SRI.JIBU P THOMAS FOR ADDL.R4 SRI.P.S.APPU FOR ADDL.R4 SRI.A.R.NIMOD FOR ADDL.R4 SRI.C.A.ANOOP FOR ADDL.R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2010, ALONG WITH WPC NO. 28364 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WPC 5563/2006) P1: TRUE COPY OF 2ND RESPONDENT'S NOTICE DT.23.1.2006 AS TRANSCRIBED BY PETITIONER FROM THE ORIGINAL NOTICE AFFIXED ON THE BUILDING. P2: TRUE COPY OF NEWS ITEM REPORTED IN MANGALAM DAILY DT.2.2.2006, KOCHI EDITION, PAGE 2. P3: TRUE COPY OF PETITIONERS' REPRESENTATION SEND TO R2 DT.4.2.2006. P4: TRUE COPY OF RECEIPT ISSUED BY R2 DT.4.2.2006 TO PETITIONER. P5: TRUE COPY OF REPRESENTATION DT.22.2.2006 SENT BY PETITIONER BY REGD. POST TO R1. P6: TRUE COPY OF NEWS ITEM REPORTED IN MATHRUBHUMI PAGE 3 DT.21.2.2006 KOCHI EDITION. P7: .DO. MALAYALA MANORAMA PAGE 2, DT.21.2.2006, KOCHI EDITION. P8: TRUE COPY OF NEWS ITEM REPORTED IN MANGALAM PAGE 2, DTD.21.2.2006, KOCHI EDITION. P9: TRUE COPY OF LETTER DT.4.4.2006 OF THE ASST. EXECUTIVE ENGINEER, PWD ROADS SUB DN., CHERTHALA. P10: TRUE COPY OF G.O.(MS) NO.83/2004/PWD DT.17.8.2004. P11: ORIGINAL OF AFFIDAVIT DT.18.9.2006 SWORN BY THE PRESIDENT OF AROOR GRAMA PANCHAYAT. P12: TRUE COPY OF NOTICE CUM PROHIBITORY ORDER DT.29.11.2000 ISSUED TO R3 BY R2. P13: TRUE COPY OF NOTICE CUM ORDER DT.12.1.2001 ISSUED TO R3 BY R2. P14: TRUE COPY OF ORDER DT.18.1.2001 ISSUED BY JOINT SECRETARY TO GOVT. LOCAL SELF GOVT.(E) DEPT. P15: TRUE COPY OF ORDER DT.18.1.2003 ISSUED BY DY. SECRETARY LOCAL SELF GOVT. DEPT. RESPONDENT'S EXHIBITS: R3(a): TRUE COPY OF BUILDING TAX RECEIPT DT.31.3.97. R3(b): TRUE COPY OF APPLICATION SUBMITTED BEFORE PANCHAYAT SECRETARY DT.18.2.2006. R3(c): TRUE COPY OF APPEAL FILED BEFORE R2 DT.14.3.2006. R3(d): TRUE COPY OF OBJECTION ISSUED BY OFFICE OF EXECUTIVE ENGINEER, NATIONAL HIGHWAY DIVISION, ALAPPUZHA DT.1.3.2006. R3(e): TRUE COPY OF NOTICE PUBLISHED BY R2 PANCHAYAT DT.1.11.96. R3(f): TRUE COPY OF PETITION FILED BEFORE THE SECRETARY OF PANCHAYAT. R3(g): .DO. HON'BLE HIGH COURT. R2(a): TRUE COPY OF ORDER ISSUED BY R3. R4(a): TRUE COPY OF REGISTERED SALE DEED DT.6.11.2006. R4(b): TRUE COPY OF PROCEEDINGS OF R2 ALONG WITH MAHAZAR DT.NIL. R4(c): TRUE COPY OF NOTIFICATION ISSUED BY R2 DT.1.11.96. TRUE COPY PS TO JUDGE C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... W.P.(C) Nos.5563/2006 & 28364/2009 .................................................................... Dated this the 7th day of July, 2010. JUDGMENT Ramachandran Nair, J. In the connected writ petitions the question involved is whether the commercial building constructed by third respondent in W.P. No.28364/2009 is in violation of Building Rules. While the case of the petitioners is that construction is in violation of Building Rules and though originally even a Panchayat member filed a writ petition and obtained stay against construction, he was later persuaded to back out. In any case this court had granted stay against completion of construction in the year 2006. There is allegation that balance construction was also carried out in violation of court orders. We do not think the question whether the building constructed is in violation of the Building Rules can be decided by this court without verifying facts. Since the Tribunal for Local Self Government can consider all the matters including disputes on fact and since appeal is provided against orders of the Panchayat granting approval for the construction, W.P.C.5563/06&28364/09 2 we leave the matter to be agitated before the Tribunal in an appeal. Parties are given one month's time to file appeal against the orders of the Panchayat. The Secretary of the Panchayat is directed to issue proceedings immediately on production of judgment for the parties to file appeal against such proceedings. If Panchayat has not granted approval, then of course there is no need for the petitioners to file appeal and the Panchayat will communicate that order to the petitioners. If appeals are filed within one month from now along with copy of proceedings issued by the Panchayat and copy of the appeal, then the Tribunal shall entertain the same as filed within time, hear the parties and dispose of the matter within a period of three months thereafter. There will be direction to the building owner or the transferee of the same, not to make any further construction or modification until final orders by the Tribunal in the above matter. However, if appeals are not filed by the appellants, the building owner can go by the orders of the Panchayat after one month from now. Filing of appeal will be intimated by the appellants or any other person to the building owner for compliance as above. The Tribunal is W.P.C.5563/06&28364/09 3 absolutely free to go into the facts and decide the matter without being influenced by observations or findings made by this court in any order in this writ proceedings. C.N.RAMACHANDRAN NAIR Judge P.S.GOPINATHAN Judge pms