IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 WP(C).No. 21747 of 2011(P) -------------------------------------- PETITIONER: ------------------- MULLARIKANDY NABEESA, D/O.MAMU HAJI, SWASTHAM, NAZELASIL HOUSE, ULLIYERI AMSOM DESOM, CALICUT DISTRICT. BY ADVS. SRI.A.K.SRINIVASAN, SRI.A.S.BENOY. RESPONDENTS: ------------------------ 1. ULLIYERI GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, ULLIYERI AMSOM DESOM, KOYILANDY TALUK – 673 323. 2. THE SECRETARY, ULLIYERI GRAMA PANCHAYATH, ULLIYERI AMSOM DESOM, KOYILANDY TALUK – 673 323. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.21747/2011-P: APPENDIX PETITIONER'S EXHIBITS: EXT.P.1: COPY OF BUILDING PERMIT DTD. 31/05/2008 ISSUED BY THE R2. EXT.P.2: COPY OF THE LETTER NO. C2/BL NO.145/08-09 DTD. 11/07/2008 ISSUED BY THE R2. EXT.P.3: COPY OF JUDGMENT IN O.S. NO. 65/2010 PASSED BY THE HON'BLE MUNSIFF'S COURT, QUILANDY. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 21741 OF 2011 ------------------------------- DATED THIS THE 10TH DAY OF AUGUST, 2011 JUDGMENT Petitioner obtained Ext.P1 building permit dated 31/5/2008 from the 2nd respondent. The permit issued is for the construction of a small commercial building having a plinth area of 118.80 sq. metres. Subsequently, the 2nd respondent issued Ext.P2 notice dated 11/7/2008 directing the petitioner to stop the construction temporarily on the ground that the construction would affect the adjacent school compound. In paragraph 3 of the writ petition it is stated that the petitioner convinced the true facts before the Secretary of the Panchayat and therefore, the Secretary allowed the petitioner to continue the construction. Subsequently on 23/3/2010 the 2nd respondent along with the officials of the lst respondent obstructed the construction work and asked the petitioner to stop the construction forthwith. Petitioner submits that so long as she is having a valid building permit and there was -2- W.P.(C).No.21747/2011 no encroachment or any illegal construction, neither the 2nd respondent nor any other officials of the lst respondent has any authority to ask her to stop the construction of the building in question. It is pointed out that the building was constructed in accordance with the permit and the approved plan and that the construction of the building in the petitioner's property has nothing to do with the school compound, which is well demarcated with iron wire fence. It is pointed out that the respondents' action is high handed and oppressive with mala fides and undue influence of some other influential persons in the locality. 2. Petitioner challenges Ext.P2 order by filing a civil suit O.S.No.65/2010. The suit was dismissed by the court below noting the fact that the Panchayat has passed subsequent order produced as Ext.B1(b) cancelling the permit. The court below observed that the remedy open to the petitioner is to prefer an appeal before the statutory forum, that no appeal has been preferred against the order cancelling the permit and thus the plaintiff has -3- W.P.(C).No.21747/2011 failed to exhaust her statutory remedy. The court below also found that the suit is bad for want of notice under Section 249 of the Act. The court below did not go into the merits of the contentions raised by the plaintiff, but dismissed the suit on technical reasons stated above. 3. The learned counsel for the petitioner submits that the Panchayat cancelled the permit without issuing notice to the petitioner or without hearing her. It is also brought to the notice of this Court that the order cancelling the permit was not communicated to the petitioner till date. The petitioner is not in a position to say as to what are the reasons for cancellation of the permit obtained by her. 5. In these circumstances, this Court direct the 2nd respondent to issue a copy of the order cancelling the permit to the petitioner, since this Court is convinced that the cancellation of the permit was done behind the back of the petitioner. Therefore, the order cancelling the permit passed by the 2nd respondent-Secretary -4- W.P.(C).No.21747/2011 is quashed, since it is passed without issuing notice and without affording an opportunity of being heard to the petitioner. The 2nd respondent is directed to consider the matter afresh and pass appropriate orders in accordance with law, after affording an opportunity of being heard to the petitioner. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv. -5- W.P.(C).No.21747/2011