IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 WP(C).No. 9698 of 2009(F) ------------------------- PETITIONER(S): --------------- JAMES C.AREECKAL, AGED 46, S/O. CHACKO, VAREEKAL HOUSE, PERUVA P.O., PERUVA. BY ADV. SRI.BABU PAUL RESPONDENT(S): --------------- 1. MULAKKULAM GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PERUVA P.O., MULAKKULAM. 2. THE N.S.S.KARAYOGAM, REG.NO.3751, REPRESENTED BY ITS SECRETARY PRESIDENT, PERUVA P.O., PERUVA. ADV. SRI.MILLU DANDAPANI FOR R1 SRI.N.P.SETHU FOR R2 SRI.K.GOPALAKRISHNA KURUP FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9698 of 2009 A P P E N D I X PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE JUDGMENT DATED 13/02/2009 EXT.P2 TRUE COPY OF THE CIRCULAR DATED 25/07/2007 EXT.P3 TRUE COPY OF THE ORDER DATED 12/03/2009. EXT.P4 TRUE COPY OF THE 2ND RESPONDENT'S EXTS: EXT.R2(a) THE NEWSPAPER ITEM REPORTED ON 23/03/2008 IN MATHRUBHUMI DAILY EXT.R2(b) TRUE COPY OF THE COMMUNICATION DATED 24/03/2008 OF THE SECOND RESPONDENT TO THE FIRST RESPONDENT GIVING INFORMATION OF THE CONSTRUCTION. EXT.R2(c) TRUE COPY OF THE JUDGMENT IN WPC 4369/2009 DATED 13/02/2009 EXT.R2(d) TRUE COPY OF THE NOTICE DATED 19/03/2009 ISSUED BY THE FIRST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT. EXT.R2(e) TRUE COPY OF THE POSTAL COVER EVIDENCING THE SENDING OF EXT.R2(d) EXT.R2(f) TRUE COPY OF REPLY DATED 26/03/2009 GIVEN BY THE 2ND RESPONDENT ADDRESSED TO THE 1ST RESPONDENT. EXT.R2(g) TRUE COPY OF THE COMPLAINT GIVEN BY THE 2ND RESPONDENT TO THE DEPUTY DIRECTOR OF PANCHAYAT DATED 05/05/2009. EXT.R2(h) TRUE COPY OF THE RELEVANT PAGE OF THE MINUTES BOOK EVIDENCING THE DETAILS OF CONSTRUCTION WORK WP(C).No. 9698 of 2009 EXT.R2(i) TRUE COPY OF THE SAID DAY BOOK KEPT BY THE 2ND RESPONDENT DURING THE YEAR 1998. EXT.R2(j) TRUE COPY OF PERMISSION GRANTED BY THE PRESIDENT OF THE 1ST RESPONDENT DATED 29/10/2008 EXT.R2(k) TRUE COPY OF THE LETTER SANCTIONING PASS FOR SAND ISSUED BY THE PRESIDENT OF THE 1ST RESPONDENT. EXT.R2(l) TRUE COPY OF THE APPLICATION GIVEN BY THE 2ND RESPONDENT UNDER RIGHT TO INFORMATION ACT DATED 06/11/2008. EXT.R2(m) TRUE COPY OF THE RECEIPT SHOWING RECEIPT OF EXT.R2(l), ISSUED BY THE 1ST RESPONDENT EXT.R2(n) TRUE COPY OF THE ANSWER TO THE EXT.R2(l) EXT.R2(o) TRUE COPY OF THE APPLICATION GIVEN BY THE 2ND RESPONDENT UNDER RIGHT TO INFORMATION ACT DATED 07/11/2008. EXT.R2(p) TRUE COPY OF THE RECEIPT SHOWING RECEIPT OF EXT.R2(o), ISSUED BY THE 1ST RESPONDENT EXT.R2(q) TRUE COPY OF THE ANSWER TO THE EXT.R2(o) 1ST RESPONDENT'S EXTS: NIL \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.9698/2009-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 24th day of November, 2010 J U D G M E N T The petitioner alleges that the second respondent is making a construction of a building which requires a permit under the Kerala Municipality Building Rules. Earlier, this Court by Ext.P1 common Judgment in W.P.(C). Nos.32134/2008 & 4369/2009 directed the Panchayat to consider the matter and, accordingly, Ext.P3 resolution was taken by the Panchayat which is challenged in this writ petition. 2. The first respondent as well as the second respondent have filed separate counter affidavits. The resolution Ext.P3 shows that the Panchayat has decided to withdraw the stop memo. Respondents contend that the remedy of the petitioner is under Section 191 of the Panchayat Raj Act to approach the Government. There cannot be any dispute that Ext.P3 is a resolution adopted by the Committee of the Panchayat. Section 191 of the Panchayat Raj Act confers the power on the Government to cancel or vary a resolution passed or a decision taken by the Panchayat on various grounds. This power can be exercised W.P.(C). No.9698/2009 -:2:- by the Government either suo moto or, on a reference by President, Secretary or a member, or on a petition received from a citizen. 3. The dispute revolves round the question whether a construction was made prior to the extension of the Building Rules to the Panchayat. The second respondent maintains the stand that the construction was started prior to the enforcement of the Building Rules way back in 1998 which is disputed by the learned counsel for the petitioner. Thus it is a disputed question of fact which cannot be resolved in a writ petition. Therefore, it is upto the petitioner to approach the Government under Section 191 of the Panchayat Raj Act. While admitting the writ petition, this Court had passed an interim order of stay of Ext.P3 on 25/03/2009. Therefore, if the petitioner files appropriate application before the Government by invoking Section 191 of the Panchayat Raj Act, the same will be considered and disposed of by the Government after hearing the petitioner and respondent Nos.1 and 2 expeditiously. It is open to the petitioner to seek appropriate interim orders in the matter also. For enabling the petitioner to seek appropriate interim orders, it is made clear that the interim order passed by this W.P.(C). No.9698/2009 -:3:- Court will remain in force for a period of one month. Parties will be heard on the application for interim prayer also. The writ petition is accordingly disposed of. No costs. (T.R. Ramachandran Nair, Judge.) ms