IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 WP(C).No. 21377 of 2008(T) -------------------------- PETITIONER: ------------ A.T. MATHEW, ELAMPLASSERIYIL HOUSE, MOONILAVU.P.O, KOTTAYAM. BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM RESPONDENT: ------------- THE MOONILAVU GRAMA PANCHAYATH, REP. BY ITS SECRETARY, MOONILAVU.P.O, KOTTAYAM. BY ADV. SRI.GEORGEKUTTY MATHEW THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = = W.P.(C) No. 21377 OF 2008 T = = = = = = = = = = = = = = = = = Dated this the 7th day of August 2008 J U D G M E N T The challenge in this writ petition is against Exts. P16 and P17. Petitioner submits that on an application made by him, by Exts. P3 and P3(a), his plan was approved and building permit was also granted. Soon thereafter, petitioner commenced construction. According to him, in view of Ext. P1 favourable judgment obtained by him from the civil court directing payment of compensation against the respondent Panchayat, the Secretary had ill will against him. For that reason on the allegation that the petitioner had changed the stair case of the building unauthorizedly he was issued Ext. P4 notice. 2. Petitioner submits that though the deviation alleged was inconsequential and permissible, he submitted Ext. P5 revised plan for the approval of the Panchayat. According to him, the site was inspected by the Assistant Engineer and a favourable report was W.P.(C) No. 21377/08 -2- also submitted as per Ext. P5(a). While he proceeded with his construction, purportedly acting upon Ext. P7 complaint, Ext. P6 notice was again issued by the Secretary of the Panchayat directing the petitioner to execute an agreement with the complainant in Ext. P7. Here again though the petitioner contested his liability to execute the agreement as directed in Ext. P6, still he entered into Ext. P9 agreement. Even thereafter, he was again issued Ext. P12 notice in purported compliance of Ext. P13 complaint. 3. Despite all these, petitioner submits that by Ext. P15 the Panchayat decided to assign building number to the ground floor of the building which was pending implementation. At that stage, without any provocation, the Secretary again issued Exts. P16 and P17, requiring the petitioner to show cause why the building should not be ordered to be demolished. The allegations based on which Ext. P16 was issued are contained in Ext. P17 provisional order. It is on receipt of Exts. P16 and P17, seeking to quash these orders and for directing the Panchayat to assign building number to the ground floor as resolved in Ext. P15, this writ petition was filed. 4. The respondent Panchayat has filed a counter affidavit in W.P.(C) No. 21377/08 -3- which it is submitted that the petitioner had made several deviations from the approved plan and on that basis it is alleged that the petitioner has violated the provisions contained in the Kerala Municipality Building Rules which have been implemented in the area of the respondent Panchayat. Yet another contention that has been raised by the Panchayat is that though the petitioner has ownership over only 4.02 Ares of land, the petitioner is illegally in possession of 5.82 Ares by encroaching into the land belonging to the Panchayat. It is stated that the petitioner had influenced the Re- survey authorities and got a plan approved, which includes the aforesaid land also. Based on these grounds, the Panchayat is seeking to justify Exts. P16 and P17. 5. In so far as the allegation of the Panchayat that the petitioner has trespassed into the land belonging to the Panchayat and that he has excess land in his possession is concerned, this was one of the issues dealt with by the civil court in Ext. P1 judgment. In Ext. P1 judgment, taking note of this contention, the court had ordered that it will be open to the Panchayat to take appropriate action by filing civil suit for recovery of the aforesaid excess land, if W.P.(C) No. 21377/08 -4- any, in the petitioner's possession. Till date the Panchayat has not filed any suit as directed in Ext. P1 and therefore, this allegation can be no reason to take any action against the petitioner. 6. What remains is the allegations against the petitioner regarding violation of the Kerala Municipality Building Rules. One of the allegations contained in paragraph 4 of the counter affidavit is that the stair case was illegally changed by the petitioner without obtaining the permission of the Panchayat. In my view this is a minor deviation from the approved plan for which the no permit is necessary. It is so provided in the first proviso to Rule 17 of the Kerala Municipality Building Rules 1999. If that be so, this objection cannot have any substance. The other objection raised by the Panchayat is that he side shades of the building is more than 75 cms. The Panchayat has not succeeded in showing any rule which supports this objection either. 7. The third contention that is raised by the Panchayat is that the petitioner is illegally maintaining portions of the old building as part of the new building. Learned counsel for the petitioner submits that in the plot of land where he is undertaking construction, there W.P.(C) No. 21377/08 -5- existed an old building. His intention is to demolish the same and to construct a new one. However, it is contended that unless he maintains at least a portion of the building with the building number thereof, he will not be in a position to maintain his licence as a dealer in rubber. Therefore, according to the learned counsel for the petitioner, maintenance of a portion of the building is a requirement to carry on his trade in rubber and he undertakes that once the construction is completed and building number is assigned to the building in question, he will demolish the old structure in full. 8. For the aforesaid reasons I do not find any merit in the objections raised by the Panchayat leading to the issuance of Exts. P16 and P17. Accordingly, Exts. P16 and P17 will stand quashed. 9. Necessary consequence of the aforesaid finding would have been a direction to the Panchayat to implement Ext. P15. However, the learned counsel for the Panchayat points out that Ext. R1(c) order was passed by the Government staying Ext. P15 order until further orders. In view of Ext. R1(c) staying Ext. P15, this Court will not be justified in directing the Panchayat to ignore the stay order W.P.(C) No. 21377/08 -6- and implement Ext. P15. In the circumstances, the only option available to the petitioner is to move the Government, get Ext. P15 varied so that the Panchayat shall implement Ext. P15 in the light of the Government Order to be passed. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE jan/-