IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 WP(C).No. 26066 of 2010(G) ---------------------------------------- PETITIONER(S): ------------------------ C.K. VARGHESE KUTTY, S/O.LATE C.V. KURIAN, CHETHIMATTATHIL HOUSE, VAYALIL ROAD, THIRUVANKULAM P.O., ERNAKULAM DISTRICT PIN - 682 305. BY ADV. SRI.ASOK M.CHERIAN, SRI.S.KANNAN, SMT.S.RAKHEE, SMT.K.S.SANGEETHA. RESPONDENT(S): -------------------------- 1. THE SECRETARY, THIRUVANKULAM GRAMA PANCHAYATH, THIRUVANKULAM P.O., ERNAKULAM DIST - 682 305. 2. THE THIRUVANKULAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THIRUVANKULAM P.O., ERNAKULAM DIST - 682 305. 3. MRS.M.A. THANKAMANI, W/O.MR.VASU, RICHOO'S BAKERY AND COOL BAR, THIRUVANKULAM - THRIPUNITHURA ROAD, OPP.VAYALIL ROAD BEGINNING, THIRUVANKULAM P.O., ERNAKULAM DIST, PIN- 682 305. * ADDL. R4 & R5 IMPLEADED ADDL. R4: TRIPUNITHURA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, TRIPUNITHURA P.O., ERNAKULAM DISTRICT. ADDL. R5: THE SECRETARY, TRIPUNITHURA MUNICIPALITY, TRIPUNITHURA P.O., ERNAKULAM DISTRICT. * ARE IMPLEADED AS ADDITIONAL RESPONDENTS AS PER ORDER DATED 02/11/2010 IN I.A.15323/2010. R1& R2 BY ADV. SRI.S.SREEKUMAR. R3 BY ADV. SRI.ABRAHAM P.GEORGE, SRI.K.VINODKUMAR, SMT.SOUMINI JAMES. ADDL. R4 & R5 BY ADV. SRI.V.M.KURIAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C) NO. 26066/2010-G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION DATED 08/05/2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P2: COPY OF THE REMINDERS DATED 22/08/2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P3: COPY OF THE REMINDERS DATED 14/05/2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4: COPY OF THE ORDER OF THE 1ST RESPONDENT SERVED ON THE 3RD RESPONDENT, DATED 17/06/2010. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE REPLY DATED 06/07/2010 ISSUED BY THE 3RD RESPONDENT. EXT.R1(b): COPY OF THE DECISION OF PANCHAYAT COMMITTEE ON 27/07/2010. EXT.R3-1: COPY OF THE STATEMENT SUBMITTED BY THE 3RD RESPONDENT BEFORE THE PANCHAYATH. //TRUE COPY// P.S. TO JUDGE rs C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.26066 of 2010 ---------------------------- Dated 14th January, 2011 JUDGMENT The petitioner is the joint owner of a property having an extent of 20 cents comprised in Survey No.514/2 of Thiruvankulam Village. The grievance of the petitioner is that the third respondent who is his immediate neighbour had dug a well without leaving the required set back as also without obtaining permission from the Secretary of the Panchayat under Section 103 of the Kerala Municipality Act, 1994 (for short `the Act'). Raising such grievances the petitioner has moved the first respondent. Thereupon, the first respondent issued Ext.P4 order under section 406 of the Act. Ext.P4 is a provisional order directing the third respondent to restore the position by filling up the illegally dug well. On receipt of the same, the third respondent submitted Ext.R1(a) explanation. After considering the same, Ext.R1(b) decision was taken by the committee of the second respondent. In fact, the petitioner was not put on notice prior to the issuance of Ext.R1(b). It was in the said circumstances that this writ petition has been filed mainly with the prayer to issue a writ of mandamus commanding the first respondent to initiate proceedings against the third respondent in the manner provided under section 406(3) of the Act. WP(C).No.26066/2010 2 2. Evidently, as per Ext.R1(b), the Panchayat committee have resolved to request the Secretary not to take any action as contemplated under Ext.P4. Essentially, the petitioner is aggrieved by the said decision by the Panchayat committee without affording him an opportunity of being heard. That apart, the contention of the petitioner is that in terms of the provisions under section 406 of the Act the competent authority to take a decision in the matter is the first respondent. The committee could act only as an appellate authority. In short, according to him, the action of the committee in passing Ext.R1(b) virtually resulted in restraining the competent authority from passing orders in accordance with law besides depriving the petitioner the remedy of appeal to redress his grievances. 3. I have heard the learned counsel appearing for the petitioner as also the learned counsel for the third respondent. 4. It has to be noted in this context that during the pendency of this writ petition the area comprised in Thiruvankulam Grama Panchayat was merged with the limits of Tripunithura Municipality. It is in the said circumstances that the petitioner has impleaded additional respondents 4 and 5. In view of the said subsequent development, according to the petitioner, the grievance of the petitioner is to be considered afresh by the additional fifth respondent, the Secretary of WP(C).No.26066/2010 3 Tripunithura Municipality. Obviously, after issuance of Ext.P4 provisional order under section 406 of the Act no final order has been passed thereon as contemplated under the said provision. Presumably, no such final order was passed by the first respondent in the light of Ext.R1(b). There is no dispute with respect to the position that the authority competent to take appropriate action and to finalise the same under section 406 of the Act is the Secretary to the concerned local authority. The statutory power that is coupled with duty in terms of the provisions under section 406 of the Act cannot be made nugatory at the instance of the appellate authority as has been done in this case. In fact, the competent authority under section 406 of the Act ought to have finalised the proceedings as enjoined under the provisions under section 406 of the Act untrammelled by the observations and instructions issued in Ext.R1(b). At any rate, there cannot be any justification to issue a positive direction to the authority rather, interdicting the competent authority under section 406 of the Act from invoking its power, it is further contended by the petitioner. I find considerable force in the said argument. The respondents could not advance any argument to sustain the impugned action. In the said circumstances, I am of the view that the competent authority has to finalise the proceedings initiated as per Ext.4. Considering the fact that additional respondents 4 and 5 are the WP(C).No.26066/2010 4 successors of respondents 1 and 2, they are bound to take appropriate action in this matter. In fact, in view of the change in the circumstances, the additional fifth respondent has to exercise the power under section 406 to finalise the proceedings initiated as per Ext.P4. Needless to say that such a consideration shall also be done untrammelled by the observations and instructions issued in Ext.R1(b). Therefore, there shall be a direction to the fifth respondent to finalise the proceedings in terms of the relevant provisions under the Act expeditiously, at any rate within a period of two months from the date of receipt of a copy of this judgment with notice to the petitioner as also the third respondent. Needless to say that they shall be afforded with opportunity of being heard. To enable the additional fifth respondent to comply with the directions in this judgment, it will be open to the petitioner or the third respondent to produce a copy of this judgment before the additional fifth respondent. The writ petition is disposed of accordingly. Sd/- C.T.RAVIKUMAR Judge TKS // True copy // P.S to Judge