IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 OP(C).No. 516 of 2010(O) ------------------------ OS.268/2009 of MUNSIFF COURT, QUILANDY .................... PETITIONER ------------------------------ RAJAGOPALAN, AGED 48 YEARS, S/O.APPUKUTTY NAIR, THEKKEMANIKOTH, VELLUR AMSOM DESOM, ATHOLI, KOILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR RESPONDENT: --------------- MR.RAMAKRISHNAN, AGED 42 YEARS, S/O.ARIYIL RARICHAN, SANMARGH HOUSE, VELLUR AMSOM DESOM, ATHOLI, KOILANDY TALUK, KOZHIKODE DISTRICT. 673 001. ADV. SRI.MADHU RADHAKRISHNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.516 of 2010 --------------------------------------- Dated this 01st day of November, 2010 JUDGMENT When respondents started construction of a building in his property, petitioner came up with alleged violation of building rules and filed O.S.No.268 of 2009 with a prayer for injunction against proceeding with construction in plaint B schedule in violation of the Building Rules. According to the petitioner, the Advocate Commissioner has not measured length of the pathway which has a bearing on the question of violation of Rule 25 of the Building Rules (for short, “the Rules”). In the meantime respondent/defendant had undertaken in the trial court that if at all there was any violation of the Rules, that part of the building which contradicts the rules will be demolished. Accordingly an order was passed by the learned Munsiff lifting the order of status quo and directing the local authority to ensure whether the demolition is done. Learned counsel for petitioner states that in spite of undertaking no such demolition has been done. Learned counsel for respondent submits that part of the structure which was in violation of the Rules has been demolished and the panchayath has issued a certificate in that line. O.P(C).No.516 of 2010 : 2 : 2. Now the prayer is to remit Ext.P1, report and plan to ascertain length of the pathway and whether portion of the building which respondent has agreed to demolish has already been demolished (notwithstanding the stand of respondent that it has been done and the local authority has issued a certificate in that line). 3. So far as claim regarding length of pathway is concerned, learned counsel for respondent has pointed out that case is posted this day. The suit is of the year 2009. It is not disputed that a separate writ petition is already filed against the respondent alleging violation of building rules which is pending consideration of this court. In these circumstances I do not consider it necessary to remit the report as prayed for in Ext.P2, application. It is open to the petitioner to summon the officer concerned from the local authority to show that the certificate issued by it is not correct and that there was no demolition of the structure as undertaken by the respondent. It is also open to the petitioner to adduce other evidence regarding non compliance of the undertaking by the respondent. If in spite of that, it becomes necessary to depute an Advocate Commissioner to ascertain whether respondent has demolished that part of the building as per the undertaking in the court below while the order of status quo O.P(C).No.516 of 2010 : 3 : was lifted, it is open to the petitioner to request learned Munsiff to appoint an Advocate Commissioner for the limited purpose of ascertaining whether the structure as agreed by the respondent has been demolished and the certificate issued by the panchayath in that regard is correct or not. Petition is disposed of as above. (THOMAS P JOSEPH, JUDGE) Sbna/-