IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 WP(C).No. 18467 of 2008(W) --------------------------------------- PETITIONER(S): ------------------------ LIZY JOHNY, W/O. LATE JOHNY PALLIMELATHIL, KANJIRAMCODE, KUNDARA, KOLLAM DISTRICT. BY ADV. MR.B.MOHANLAL RESPONDENT(S): ------------------------- 1. THE DEPUTY DIRECTOR OF PANCHAYATH COLLECTORATE, KOLLAM 2. THE PERAYAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PERAYAM, MULAVANA KUNDARA, KOLLAM 3. THE PERAYAM GRAMA PANCHAYATH COMMITTEE REPRESENTED BY ITS PRESIDENT,PERAYAM, MULAVANA KUNDARA, KOLLAM 4. SRI.ANTONY FERNANDEZ , SARA COTTAGE PATTATHANAM, VADAKKEVILA KOLLAM. R1 BY GOVT. PLEADER MR.V.MANU R2 BY ADVS.MR.T.GOPALAKRISHNAN R4 BY MR.BIMAL K.NATH R4 BY MR.S.JAMAL R4 BY MR.E.M.SUNIL KUMAR R4 BY MR.SREEVALSAN.V R4 BY SMT.SMITHA DIVAKARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.18467/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROPERTY TAX IN 4.35 ARES OF PROPERTY COMPRISED IN SY.NO.396/2/3 OF MULAVANA VILLAGE FOR THE PERIOD 2007-08 DT. 20.2.08 ISSUED BY THE VILLAGE OFFICER, MULAVANA TO THE PETITIONER. P2:- COPY OF THE BUILDING TAX IN BUILDING TAX IN BUILDING NO.1/160 AND 1/167 FOR THE PERIOD 2007, 2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P3:- COPY OF THE FORGED CONSENT LETTER DT. 22.12.07. P4:- COPY OF THE ORDER NO.C2-768/2008 DT. 21.2.08 ISSUED BY THE IST RESPONDENT. P5:- COPY OF THE ORDER NO.A4.107/2004 DT. 4.3.08 ISSUED BY THE 2ND RESPONDENT. P6:- COPY OF THE ORDER NO.A3-99/2008 DT. 9.5.08 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE APPLICATION FILED BY THE 4TH RESPONDENT DT. 11.8.08. R4(a):- COPY OF THE AGREEMENT WHICH IS NOT SIGNED BY THE PETITIONER. R4(b):- COPY OF THE ORDER OF THE PANCHAYATH SECRETARY WHICH IS WRITTEN IN THE REPRESENTATION DT. 29.5.08. TRUE COPY P.S. TO JUDGE TSS THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.18467 of 2008-W = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of June, 2009. JUDGMENT 1.The fourth respondent commenced certain construction. The petitioner objected to it. It appears that the fourth respondent held out what, according to him, was a consent given by the petitioner in writing. The authorities in the panchayat concluded that the said document cannot be acted upon and the petitioner had not consented for the construction. Accordingly, they vacated the permit granted and ordered demolition of the building. The objection of the petitioner was basically regarding the set back. 2.The panchayat has placed on record counter affidavit stating that the fourth respondent has demolished the objectionable portion and has filed an application for regularizing the WP(C)18467/08 -: 2 :- construction in terms of the Regularization Rules and a supporting circular of the Government issued in the year 2007. 3.The fourth respondent has filed a counter stating that he had constructed the building in 1982 and later, he put up a portion of the building in 1990. These are disputed facts since even the petitioner states that the construction commenced only in 2007. Therefore, it is inadvisable to enter on an adjudication of such matters in writ jurisdiction. All that has to be ensured is that the petitioner having demonstrated that the fourth respondent had constructed the building without her consent, he is given an opportunity to object to the regularization of the construction and the parties could, then, take recourse to legal procedures on the basis of such decision, if aggrieved. For the foregoing reasons, leaving open the WP(C)18467/08 -: 3 :- disputed questions of facts, it is ordered that the panchayat will take a decision on the regularization application of the fourth respondent only after affording adequate opportunity of hearing to the petitioner and the fourth respondent. The panchayat shall specifically consider the question whether any exemption is available to the fourth respondent with reference to the actual date on which he commenced the construction, as may be evidenced to the panchayat at the hearing. The building in question shall not be numbered by the panchayat or occupied by the fourth respondent until a final decision is taken as aforesaid. The writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/020709