IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 WP(C).No. 1887 of 2011(I) ------------------------------------ PETITIONER: ------------------- K.VARKEY VARGHESE, S/O.K.P.VARGHESE, KEECHERIL HOUSE, PARIYARAM P.O., MALLAPPALLY. BY ADV. SRI.S.SUBHASH CHAND. RESPONDENTS: ------------------------ 1. M.K.VARGHESE, S/O.KORUTH, MEKKARINGATTU VEEDU, MALLAPPALLY, PIN CODE – 689 585. 2. THE MALLAPPALLY GRAMA PANCHAYAT (SPECIAL GRADE), MALLAPPALLY WEST P.O. PATHANAMTHITTA – 689 585, REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY, MALLAPPALLY GRAMA PANCHAYAT (SPECIAL GRADE) MALLAPPALLY WEST P.O. PATHANAMTHITTA – 689 585. 4. THE DEPUTY DIRECTOR OF PANCHAYATS, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATS, PATHANAMTHITTA, PIN CODE-688 001. R2 & R3 BY ADVS. SRI.SIBY MATHEW, S.C, SRI.PHILIP J.VETTICKATTU, R4 BY GOVT. PLEADER SMT. K.R.DEEPA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.1887 of 2011 ---------------------------- Dated 19th January, 2011 JUDGMENT The petitioner is the absolute owner in possession of 4.25 ares of land in Survey No.366/3 of Mallappally Village. The grievance of the petitioner is that the first respondent who is the neighbouring land owner has constructed a compound wall in violation of the provisions under the Kerala Municipality Building Rules, 1999 (for short `the Rules) and without any approval or permission from the second respondent. In the said circumstances, the petitioner has approached the third respondent with a request to take appropriate action against the first respondent for having effected construction of the compound wall in total disregard to the provisions under the Kerala Municipality Building Rules and also without obtaining requisite permission from the second respondent Panchayat. In the meanwhile, the first respondent filed O.S.No.564/2010 before the Munsiff's Court, Thiruvalla. Ext.P5 is the order of injunction passed in the said suit. As per Ext.P5, the petitioner herein was restrained from demolishing the compound wall constructed by the first respondent. It is submitted that on receipt of Ext.P1 petition from the petitioner the third respondent issued Ext.P2 informing him that the first respondent has effected construction of the compound wall WP(C).No.1887/2011 2 without obtaining permission from the second respondent Panchayat, but further action would be taken only subject to the outcome in I.A.No.3362 of 2010 in O.S.No.564 of 2010. The contention of the petitioner is that in terms of the provisions under section 235W of the Kerala Panchayat Raj Act (for short `the Act') the third respondent is having the power coupled with duty to demolish an unauthorised construction. Therefore, according to the petitioner, having found the construction unauthorised the third respondent cannot defer appropriate action merely on the ground of pendency of a civil suit between the petitioner and the first respondent. In other words, according to the petitioner, pendency of civil suit between the petitioner and the first respondent shall not be a ground for disusing the power vested with the third respondent. 2. I have heard the learned counsel appearing for the petitioner and the learned standing counsel for respondents 2 and 3. 3. True that, as per Ext.P2, the third respondent has observed that the construction against which the petitioner has raised his grievances was effected without obtaining proper permission from the second respondent Panchayat. At the same time, it is stated thereunder that further follow up action could be taken only subject to the verdict in O.S.No.564 of 2010 especially in the light of the interim injunction passed in I.A.No.3362 of 2010. The question is whether such a stand WP(C).No.1887/2011 3 taken by the respondents in Ext.P2 is liable to be interfered with or not. As already noticed hereinbefore, the contention of the petitioner is that Ext.P5 order of injunction cannot be a ground for disusing the power coupled with the duty vested with the third respondent in terms of the provisions under section 235W of the Act read with Rule 18 of the Rules. In normal circumstances, when there is no order of injunction from a competent Civil Court, of course there cannot be any impediment at all for the competent authority to take appropriate action in terms of the provisions referred above. However, in this case, the petitioner herein who is the sole defendant in O.S.No.564 of 2010 before the Munsiff's Court, Thiruvalla was restrained from demolishing the compound wall constructed by the first respondent herein viz., the plaintiff therein. In such circumstances, the other question posed for consideration is whether a person who is restrained from doing a particular action by a competent civil court could be heard to contend that the very same restrained action be directed to be carried out by a statutory authority based on his petition. Evidently, the request of the petitioner made before the third respondent is to take appropriate action for demolishing the compound wall. By virtue of Ext.P5 the petitioner cannot demolish the compound wall. In such circumstances, can the question of demolition of the compound wall be directed to be considered at the WP(C).No.1887/2011 4 instance of the petitioner? I am of the considered view that the petitioner cannot indirectly achieve his goal relying on the provisions under section 235W of the Act read with Rule 18 of the Rules. The third respondent is statutorily bound to take appropriate action whenever there is an unauthorized construction. But, that does not mean that the said authority is not bound by an order of a competent civil court. True that, neither the second respondent nor the third respondent is a party to the original suit wherein Ext.P5 interim injunction has been passed. Evidently, they are fully aware of the existence of such an order of injunction as is obvious from Ext.P2. In the said circumstances, when the said authority takes a stand to wait for the decision of the competent court it cannot be said to be perverse or illegal warranting interference of this Court. Therefore, without prejudice to the right of the petitioner to move appropriate application in O.S.No.564 of 2010, in accordance with law, this writ petition is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS // True copy // P.S. to Judge