IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(C).No. 29385 of 2008(W) -------------------------- PETITIONER(S): --------------- AMBUJAKSHY, W/O. KAMILICKAL SREEDHARAN, AYYAPPAN PALAM DESOM, ERIYAD, KODUNGALLUR. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT(S): --------------- 1. THE SECRETARY, EIRYADU GRAMA PANCHAYATH, P.O. ERIYADU, KODUNGALLUR. 2. THE PANCHAYATH COUNCIL, ERIYADU GRAMA PANCHAYATH, KODUNGALLUR. ADV. SRI.S.SREEKUMAR FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: WPC NO. 29385/2008. ------------------------------------------------------------------- EXT.P1 TRUE COPY OF RECEIPT DT. 11-6-2008. EXT.P2 REFERENCE DT. 29-8-2008. EXT.P3 A/D. CARD D5. 2-9-2008 EXT.P4 COMMISSION REPORT FILED IN O.S.1019/07 BEFORE THE MUNSIFF'S COURT. RESPONDENTS' EXHIBITS: --------------------------------------- EXT.R1(a) ORDER DT. 27-6-2008. EXT.R1(b) UNSERVED POSTAL COVER. EXT.R1(c) ORDER DT. 25-7-2008. EXT.R1(d) UNSERVED POSTAL COVER. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 29385 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd January, 2009. J U D G M E N T The petitioner wanted to re-construct her dilapidated residential building for which purpose the petitioner submitted an application for building permit. In respect of the said property in which the petitioner wants to construct the building, there were two suits pending before the Munsiff's Court, Kodungaloor as O.S.Nos. 899/2007 and 1019/2007 for fixation of boundary and right of easement. In those suits, there was a claim for right of way over part of the properties in which the petitioner wants to construct the building. There is an order of status quo passed in those suits. The petitioner filed this writ petition seeking a direction to the respondents to grant building permit for construction of the residential building. Since the 1st respondent did not pass orders on the same, the petitioner filed an application under Rule 15(2) of the Kerala Municipal Building Rules and Section 235 of the Kerala Panchayat Raj Act. It is under the above circumstances the petitioner has approached this Court seeking the following reliefs: “i] Issue a writ of Mandamus directing the respondents to grant building permit to the petitioner for construction for residential house in Ward No. XX of the Panchayat as expeditiously as possible. ii] A declaration that the petitioner is entitled to be given building permit for construction in view of the deeming provision under Rule 15(2) of The Kerala Municipal Building Rules and Section 235 of the Panchayat Raj Act.” 2. A statement has been filed by the respondents along with which they have produced Exts. R1(a) and R1(c), which are orders rejecting the application for building permit and directing the petitioner to demolish the construction made by the petitioner W.P.C. No. 29385/2008 -: 2 :- without obtaining permit. Along with the same, Exts. R1(b) and R1(d) postal endorsements are also produced, wherein it is stated that the petitioner did not claim the registered letter in spite of intimation from the postal authorities. The petitioner would contend that the petitioner was unaware of the orders passed since he was out of station. In the above circumstances, the petitioner has filed I.A.No. 15967/2008 seeking amendment of the writ petition including a prayer for quashing of Ext. R1(a) order, which has been allowed. 3. Today, when the matter was taken up, counsel for the respondent-Panchayat raised a contention that against Ext. R1(a) order, the petitioner has a right of appeal. However, I was inclined to consider the matter on merits since Ext. R1(a) order has been passed only on the ground that the plan submitted by the petitioner violates Section 220(b) of the Kerala Panchayat Raj Act. I wanted the counsel for the respondents to satisfy me as to how Section 220(b) is applicable to the petitioner's application in so far as even the right of way itself is pending consideration by the civil court. That means, the Panchayat has no case that this is even a Panchayat road. Further, Section 220(b) would be applicable only if the road has been notified under the said Section. Admittedly, there is no such notification issued. That being so, there was absolutely no justification whatsoever in the respondents rejecting the application of the petitioner on the ground that the plan submitted by the petitioner violates Section 220(b). Accordingly, Ext. R1(a) is quashed and the competent among the respondents is directed to re-consider the application submitted by the petitioner for building permit without reference to Section 220 W.P.C. No. 29385/2008 -: 3 :- (b), as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/