IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 5673 of 2008(A) ------------------------- PETITIONER(S): --------------- AYSHA BEEVI, D/O HAMSA, BLAHETH HOUSE MATHOOR P.O., ELAMANNOOR, PATHANAMTHITTA-691 524. BY ADV. SRI.P.HARIDAS RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF LOCAL SELF DEPARTMENT THIRUVANANTHAPURAM. 2. THE PATHANAPURAM GRAMA PANCHAYAT PATHANAPURAM, REPRESENTED BY ITS SECRETARY. 3. MUHAMMED HUSSAIN, PARLOT KIZHAKKETHIL CHACHI PUNNA, PUNNALA P.O., PATHANAPURAM. 4. BEEVI AMMAL, PADINJARE KADAYIL VEED OPPOSITE SEEMA THEATRE, PATHANAPURAM. 5. THE SUB INSPECTOR OF POLICE PATHANAPURAM. ADV. SRI.N.UNNIKRISHNAN FOR R2 SRI.S.SREEKUMAR FOR R3 GP SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5673 of 2008 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE COMPLAINT DATED 24.2.05 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT EXT.P2- TRUE COPY OF THE COMPLAINT DATED 26.6.06 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT EXT.P3- TRUE COPY OF THE NOTICE DATED 9.4.07 ISSUED BY THE 2ND RESPONDENT TO RESPONDENTS 3 AND 4. EXT.P4- TRUE COPY OF THE PLAINT IN O.S.278/07 DATED 24.8.07 FILED BY THE 2ND RESPONDENT BEFORE THE MUNSIFF'S COURT, PUNALUR EXT.P5- TRUE COPY OF THE LETTER DATED 17.12.07 RECEIVED BY THE PETITIONER FROM THE 1ST RESPONDENT EXT.R2(A)- TRUE COPY OF ORDER NO.PW.KBR 176/07 (1) DATED 14.5.07 EXT.R2(B)- A TRUE COPY OF COMPLAINT NO.PW 731/07 DATED 7.8.07 EXT.R2(C)- A TRUE COPY OF LETTER NO.PW.KBR 176/07(1) DATED 11.9.07 EXT.R2(D)- A TRUE COPY OF INJUNCTION ORDER DATED 24.8.07 FILED BY PANCHAYATH IN O.S.278/07 BEFORE THE PUNALUR MUNSIFF COURT (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J. ------------------ W.P.C). No. 5673 of 2008 -------------------------- Dated, this the 13th day of January, 2010 JUDGMENT 1. Petitioner and respondents 3 and 4 are brothers and sisters. In this writ petition what the petitioner seeks is a direction to the respondent Panchayat to take Ext.P3 order passed by the 2nd respondent to its logical conclusions. 2. It is alleged by the petitioner that respondents 3 and 4 have constructed a shop room in an existing building trespassing into her property and without obtaining any building permit from the respondent Panchayat. On her complaint, Ext.P3 provisional order requiring demolition of the offending structure was passed by the 2nd respondent. It is stated that ignoring Ext.P3, construction was continued and that led the 2nd respondent to file O.S.No.278/2007 before the Civil Court. Despite Ext.R2(D) order of injunction passed by the Civil Court, construction was continued and the 2nd respondent did not take any effective action either to stop the construction or to remove the offending structure. W.P.(C).5673/08 2 3. 2nd respondent submits that pursuant to Ext.P3 provisional order, issued in respect of an unauthorised construction undertaken by respondents 3 and 4 in Survey No.415/11 of Punnala Village, the proceedings continued and that Ext.R2(A) final order was passed. It is stated that despite this, construction was continued and as a result of which, the 2nd respondent filed O.S.No.278/2007 before the Civil Court in which Ext.R2(D) order of temporary injunction restraining the 3rd respondent from continuing the construction was passed. It is stated that the 3rd respondent continued with the construction even thereafter and therefore, by Ext.R2(B), the 2nd respondent sought police protection for preventing further construction. It is also stated that by Ext.R2(C), the 2nd respondent has requested the Electricity Board not to give electric connection to the premises in question. 4. Although, the 4th respondent has been served notice, there is no appearance on her behalf. In the counter affidavit filed by the 3rd respondent, it is stated that the construction has not been undertaken by him and that the construction is undertaken W.P.(C).5673/08 3 by the 4th respondent. 5. From the facts thus stated, it can be seen that according to the Panchayat, a construction has been undertaken without obtaining any building permit. Orders of demolition also have not been complied with and when the matter stood at that stage, petitioner has approached this Court complaining of inaction on the part of the Panchayat and seeks an order requiring the Panchayat to take Ext.P3 and R2(A) to its eligible conclusions. 6. However, from Ext.P3, what is seen is that the provisional order was passed in respect of construction in Survey No.415/11 of Punnala Village. As against this, in Ext.P4, the plaint in O.S.No.278/2007, it is seen that the survey No. mentioned is 416/11. While Ext.P3 provisional order is served on respondents 3 and 4, it is seen that Ext.R2(A) final order is addressed only to the 3rd respondent who, in his counter affidavit, has denied of having undertaken any construction. In view of this, it is unsafe to direct implementation of Ext.P3 and Ext.R2(A) any further. W.P.(C).5673/08 4 7. However, having regard to the fact that even according to the Panchayat, the construction is unauthorized and in the light of the steps the Panchayat has taken, it is necessary that fresh proceedings should be initiated against the offending structure. It is therefore directed that within two weeks of receipt of a copy of this judgment, the Panchayat shall initiate fresh action against the offending structure, issue provisional order and if not complied with, issue final order and implement the same by taking appropriate action. If need arises, it will also be open to the Panchayat to seek assistance of the 5th respondent who, on production of a copy of this judgment is directed to render necessary assistance to the 2nd respondent in order to implement its final order which it should pass, as directed herein above. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs