IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WA.No. 1478 of 2008 --------------------------- AGAINST THE JUDGEMENT IN W.P.(C)6026/2008 Dated 04/03/2008 .................... APPELLANT/ 5TH RESPONDENT --------------------------------------------- T.K. KUMARI KAMALAM, D/O.LATE P.V. SAMI, AGED 50, KALPAKA, THALI, CALICUT-2. BY ADV. SRI.B.G.BHASKAR RESPONDENTS / PETITIONER & R1 TO R4 ----------------------------------------------------------- 1. A. SAMIKUTTY, S/O.IMBICHIKUTTY, ARAMBICHALIL HOUSE, VALLAIKODE, KOZHIKODE. 2. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, TRIVANDRUM. 4. THE SECRETARY, OLAVANNA GRAMA PANCHAYATH, MATTARA, CALICUT, KOZHIKODE DISTRICT. 5. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. BY SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 SENIOR GOVERNMENT PLEADER SRI.M.P.SREEKRISHNAN FOR R2, R3 & R5 SRI.P.V.KUNHIKRISHNAN FOR R4 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.1478 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of August 2008 JUDGMENT A.K.BASHEER, J. The genesis of the dispute in this writ appeal has essentially stemmed from the clamour between the appellant and respondent no.1 over the title and possession of the property situated in Survey No.50/2B of Pantheerankavu Village in Kozhikode District. Appellant and respondent no.1 are stated to be neighbouring property owners. 2. It is on record that the appellant had started construction of a multi storied building for a Nursing College in the said property after obtaining a building permit from Olavanna Grama Panchayat. Respondent no.1 raised objection against the construction before the Panchayat. After considering the objections and hearing the parties, the Panchayat found that there was some merit in the contention raised by respondent No.1 that the appellant was infact making the construction in his property. Therefore, a stop memo was issued by the Panchayat directing the appellant not to proceed with further construction. After issuance of the stop memo also the Panchayat had heard the parties yet again, and thereafter an order was passed directing the appellant to get the property measured by the Taluk Surveyor. It was further directed that the construction of the W.A.No.1478 OF 2008 :: 2 :: building be stopped till the survey was completed. 3. The above order was challenged by the appellant before the Tribunal for Local Self Government Institutions. The Tribunal allowed the appeal and set aside the order issued by the Panchayat holding that the Panchayat had no authority to issue a stop memo, since the dispute was essentially touching upon the title to the property. However, the Tribunal also held that the appellant was not entitled to make any construction in R.S.No.50/2B since the building permit obtained by him was only in respect of R.S.50/2A2/2B. It was further held that respondent No.1 will have to seek his remedy before the civil court, if according to him, the appellant had committed trespass. 4. The above order passed by the Tribunal was challenged by respondent No.1 before this court under Article 226 of the Constitution of India contending, inter alia, that the appellant would not be entitled to continue with the construction of the building in terms of the permit issued by the Panchayat, especially, since the permit was obtained by her misleading the Panchayat and also since the dispute with regard to the title to the property had not been decided as yet. 5. The learned Single Judge took the view that a solution to the vexed issue can be found only by identifying the property covered under the building permit, after getting the property measured with the help of Surveyor. Learned Judge also noticed that the parties had no objection to the above course of action. It was W.A.No.1478 OF 2008 :: 3 :: therefore directed that the plot covered under the permit issued by the Panchayat to be identified after measurement of the disputed property. It was further held that the appellant shall not be entitled to make any construction in R.S.50/2B. 6. The said judgment is impugned in this writ appeal contending inter alia that the interdiction contained in the judgment from making any construction in Survey No.50/2B will result in irreparable hardship to the appellant. It is pointed out by the learned counsel for the appellant that the learned Single Judge was not justified in restraining the appellant from continuing with the construction since the Panchayat had issued the permit after scrutiny of the relevant records and also after making local inspection in compliance of the statutory formalities. 7. Learned counsel for respondent No.1 submits that the writ appeal has in fact become infructuous in as much as the directions contained in the judgment had already been implemented. The Taluk Surveyor had measured the property in the presence of the parties and prepared a sketch. He further points out that immediately after the pronouncement of the judgment in the writ petition, the appellant had rushed to the civil court and obtained an order of injunction. 8. We do not propose to deal with the issue any further at this stage since admittedly a dispute does exist between the appellant and respondent No.1 as regards the above property. Learned counsel on either side would agree that a final solution to the vexed issue relating to the title to the property, has to be W.A.No.1478 OF 2008 :: 4 :: ultimately resolved by a competent civil court. 9. Having heard learned counsel for the parties and having perused the materials available on record, we have no hesitation to hold that the imbroglio can be sorted out only by a competent civil court. The only apprehension of the appellant is that the interdiction in the judgment restraining her from making any construction in Survey No.50/2B may act as a fetter when the issue relating to title is considered by the civil court at a later stage. We do not find any reason why the observation made by the learned Judge in this regard shall trammel the civil court from deciding the issue of title, if and when such a suit is filed by either of the parties. Therefore, we dispose of this writ appeal making it clear that the ultimate decision on the question of title in respect of the property in which the alleged construction has been made, shall be taken by a competent civil court. Status quo as on today shall be maintained by the parties and neither of them shall make any construction without the permission of the civil court. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE jes