IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 WA.No. 1632 of 2011 ---------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC11.631/2009 Dated 03/08/2011 .................... APPELLANT(S): --------------------- S.MURUKAN, KURAVANKONATHU VEEDU, EDATHARA P.O., KADAKKAL, KOLLAM. BY ADV. SRI.V.PREMCHAND RESPONDENT(S): ----------------------- 1. THE KADAKKAL GRAMA PANCHAYAT, KADAKKAL P.O., KOLLAM DISTRICT. 2. THE SECRETARY, KADAKKAL GRAMA PANCHAYAT, KADAKKAL P.O., KOLLAM DISTRICT. 3. VASUMATHI, VASUMATHI VILASATHIL, EDATHARA P.O., KADAKKAL, KOLLAM DISTRICT. R1 AND R2 BY SC SRI.PIRAPPANCODE V.S.SUDHIR R3 BY ADV.SRI.K.SIJU. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag.C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 1632 of 2011 ---------------------------------------------- Dated this the 17th day of November, 2011 JUDGMENT Ramachandra Menon, J. The verdict passed by the learned Single Judge declining interference in the Writ Petition challenging the course and conduct of the respondent-Panchayat in taking action against the contesting respondent, i.e., the third respondent, in respect of the alleged violation of the Kerala Municipality Building Rules, 1999 (for short, 'the KMB Rules') in constructing a building in her property, is under challenge in this appeal. 2. Appellant is the owner of the adjoining property of the third respondent. Alleging that construction of the building was going on in the property of the third respondent in violation of the KMB Rules, it was brought to the notice of the Panchayat by filing Exhibits P3 and P4 representations. While so, the appellant also chose to approach the civil court by filing O.S.No. 238 of 2008 seeking for fixation of boundaries and also a relief by way of injunction. On approaching this Court by filing W.P(C).No.11631 of WA.1632/11 2 2009, Exhibit P5 judgment was passed, whereby the grievance of the writ petitioner as projected in Exhibits P3 and P4 representations was directed to be considered and finalised. Pursuant to the verdict as above, the matter was considered by the local authority, who issued Exhibit P6 order dated 5.1.2009, whereby further construction of the building was intercepted holding that it shall be proceeded only after finalisation of the proceedings pending before the civil court. 3. It is brought to the notice of this Court that the civil court finalised the proceedings by passing a decree with regard to fixation of boundaries. It is also revealed from the materials on record that the injunction sought for by the plaintiff was declined. The learned Single Judge observed that, after passing Exhibit P6 order, the writ petitioner filed Exhibit P8 complaint before the Secretary of the Panchayat, who conducted a site inspection and that as revealed from the counter affidavit filed by respondents 1 and 2 it was clear that the construction was effected by the concerned respondent providing necessary distance to an extent of 75 cms. from the southern boundary of the writ petitioner's property. It is also stated in the counter affidavit, that there is no violation of the KMB Rules in so far as under Rules 72, 73 and 74 WA.1632/11 3 (3) of KMB Rules, the third respondent is required to leave only 60 cms. In such circumstances, interference was declined and the Writ Petition was dismissed, which is under challenge in this Writ Appeal. 4. After hearing learned counsel for the appellant at length, we find that the course pursued by the Panchayat, particularly after Exhibit P6, is with reference to the specific inspection conducted in the site on receipt of further representations and after carrying out the measurements, ascertaining the factual position. A copy of the relevant proceeding conveying the outcome to the writ petitioner has been produced as Exhibit R2(a) along with the counter affidavit. It was also brought to the notice of this Court that the third respondent had earlier sought for an NOC from the Panchayat and after considering the credentials, the NOC was issued by the Panchayat as early as on 20.6.2006 permitting to effect the construction. It was pursuant to obtaining of the NOC, that necessary finance was arranged from different corners, particularly under a scheme promulgated by the local authority itself and the construction was effected by the third respondent. 5. The challenge raised by the writ petitioner with reference WA.1632/11 4 to violation of KMB Rules has to be examined with reference to the date on which the 'KMB Rules' were made applicable to the Grama Panchayat. As a matter of fact, the provisions of the 'KMB Rules' were applicable only to the Municipalities in Kerala. But later, as per notification dated 6.6.2007, the said provisions were made applicable to the Panchayats as well. Obviously, the NOC issued by the Panchayat permitting the writ petitioner to effect the construction was on 20.6.2006, i.e., much prior to the said date. Further, the alleged violation was examined by the local authority by conducting a local inspection and it was revealed that necessary space has been left out, to an extent of 75 cms., though the actual requirement is only 60 cms, as per the relevant rules. In the above circumstances, we do not find any merit to interfere with the verdict passed by the learned Single Judge. The appeal fails and the same is dismissed accordingly. MANJULA CHELLUR, ACTING CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs