IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 WP(C).No. 29655 of 2011(F) -------------------------- PETITIONER(S): ------------------ K.P. SREEKUMAR, S/O.PARAMESWARAN PILLAI, SANTHI BHAVAN, THURUTHIKKARA P.O.,. KUNNATHOOR-690 540, KOLLAM. BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SRI.JELSON J.EDAMPADAM RESPONDENT(S): ------------------- 1. THE PRINCIPAL SECRETARY, LOCAL SELF DEPARTMENT, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM-695 001. 2. DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM-695 001. 3. ADDITIONAL TAHSILDAR, KUNNATHOOR TALUK, SASTHAMCOTTA, KOLLAM-690 520. 4. TALUK SURVEYOR,KUNNATHOOR TALUK, SASTHAMCOTTA, KOLLAM-690 520. 5. KUNNATHOOR GRAMA PANCYATH, KUNNATHOOR P.O., KOLLAM DISTRICT, REPRESENTED BY ITS SECRETARY-690 540. R1-4 BY GOVERNMENT PLEADER R5 BY ADVS. SRI.P.B.SURESH KUMAR, SENIOR ADVOCATE SRI.LEO GEORGE FOR R5 SRI.K.N.SASIDHARAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2011, ALONG WITH COC NO. 988 OF 2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 29655 of 2011(F) ------------------------------------- APPENDIX ------------- PETITIONER(S) EXHIBITS ------------------------------- EXHIBIT P1. TRUE COPY OF THE ORDER NO.734/09-10 DATED 6/11/2009 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P2. TRUE COPY OF THE CONSENT DEED DATED 28/7/2011 GIVEN BY THE PETITIONER. EXHIBIT P3. TRUE COPY OF THE LETTER DATED 9/8/2011 SUBMITTED BY THE PRESIDENT, KUNNATHUR GRAMA PANCHAYTH. EXHIBIT P4. TRUE COPY OF THE REPRESENTATION DATED 19/8/2011 SUBMITTED BY THE PETITIONER BEOFORE THE 5TH RESPONDENT. EXHIBIT P5. TRUE COPY OF THE LOCATION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KUNNATHUR. EXHIBIT P6. TRUE COPY OF THE REPRESENTATION DATED 20/8/2011 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR LOCAL SELF GOVERNMENT. EXHIBIT P7. TRUE COPY OF THE COMPLIANCE CERTIFICATE NO.3759/11 DATED 20/8/2011 ISSUED BY THE VILLAGE OFFICER, KUNNATHUR FOR PRODUCING BEFORE THE 5TH RESPONDENT. EXHIBIT P8. TRUE COPY OF THE PETIION DATED 22/8/2011 PRODUCED BY THE PETIIONER ALONG WITH EXHIBIT.P7 BOEFORE THE 5TH RESPONDENT. EXHIBIT P9. TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE SECRETARY IN CHARGE, KUNNATHUR GRAMA PANCHAYT, WITHOUT ITS EXHIBITS. EXHIBIT P10. TRUE COPY OF THE JUDGMENT DATED 6/9/2011 OF THIS HONOURABLE COURT IN WPC 23082/2011. EXHIBIT P11. TRUE COPY OF THE LETTER NO.C3-3578/II DATED 12/9/2011 OF THE 5TH RESPONDENT ADDRESSED TO THE PETIIONER. WP(C).No. 29655 of 2011(F) ------------------------------------ EXHIBIT P12. TRUE COPY OF THE LETTER NO.C3-3578 DATED 12/9/2011 OF THE 5TH RESPONDENT ADDRESSED TO THE TAHSILDAR, SASTHAMCOTTAH. EXHIBIT P13. TRUE COPY OF THE LOCATION SKETCH RELIED ON BY THE 5TH RESPONDENT. EXHIBIT P14. TRUE COPY OF THE REPORT PREPARED BY THE OVERSEER DATED 14/9/2011. EXHIBIT P15. TRUE COPY OF THE LETTER NO.A3-3578/011 DATED 16/9/2011 OF THE 5TH RESPONDENT. EXHIBIT.P16. COPY OF THE LETTER NO.C1-14058/011 OF THE TALUK SURVEYOR, KUNNATHUR TO THE 5TH RESPONDENT EXHIBIT P17. TRUE COPY OF THE REPORT DATED 20.9.2011 SUBMITTED BY THE TALUK SURVEYOR TO THE TAHSILDAR, KUNNATHOOR. EXHIBIT P18. TRUE COPY OF THE LETTER DATED 20/9/2011 OF THE WARD MEMBER, THANKAPPAN IRAVI, ADDRESSED TO THE TAHSILDAR, KUNNATHUR. EXHIBIT P19. TRUE COPY OF THE COURT CERTIFICATE ISSUED IN OS 198/2010 DATED 23/09/2011. EXHIBIT P20. TRUE COPY OF THE LETTER NO.C1-15232/11 DATED 30/09/2011 OF THE ADDITI0NAL TAHSILDAR, KUNNATHOOR, ADDRESSED TO THE MUNISFF COURT, SASTHAMCOTTA. EXHIBIT P21. TRUE COPY OF THE PLAN PREPARED BY THE TALUK SURVEYOR. EXHIBIT P22. TRUE COPY OF THE THANDAPER ACCOUNT PERTAINING TO THANDAPER NO.10510 OF KUNNATHOOR VILLAGE, SHOWING THAT THE TOTAL AREA OF 7.31 ACRES IS COMPRISED IN SURVEY NO.591/08. WP(C).No. 29655 of 2011(F) ----------------------------------- EXHIBIT P23. TRUE COPY OF THE LETTER NO.A3-3578/011 DATED 13/9/2011 ISSUED BY THE 5TH RESPONDENT TO THE ASSISTANT ENGINEER, KUNNATHOOR GRAMA PANCHAYTH. EXHIBIT P24. TRUE COPY OF THE PLAN PREPARED BY THE TALUK SURVEYOR. EXHIBIT P19. TRUE COPY OF THE REPORT DATED 20/9/2011 SUBMITTED BY THE TALUK SURVEYOR TO THE TAHSILDAR,KUNNATHUR. EXHIBIT P19. TRUE COPY OF THE LETTER DATED 20/9/2011 OF THE WARD MEMBER, THANKAPPAN IRAVI, ADDRESSED TO THE TAHSILDAR, KUNNATHUR. EXHIBIT P20. TRUE COPY OF THE COURT CERTIFICATE ISSUED IN OS 198/2010 DATED 23/09/2011. EXHIBIT P21. TRUE COPY OF THE LETTER NO.C1-15232/11 DATED 30/09/2011 OF THE ADDITI0NAL TAHSILDAR, KUNNATHOOR, ADDRESSED TO THE MUNISFF COURT, SASTHAMCOTTA. EXHIBIT P22. TRUE COPY OF THE THANDAPER ACCOUNT PERTAINING TO THE THANDAPER NO.10510 OF KUNNATHOOR VILLAGE, SHOWING THAT THAT TOTAL AREA OF 7.31 ACRES IS COMPRISED IN SURVEY NO.591/08. WP(C).No. 29655 of 2011(F) ----------------------------------- EXHIBIT P23. TRUE COPY OF THE LETTER NO.A3-3578/011 DATED 13/9/2011 ISSUED BY THE 5TH RESPONDENT TO THE ASSISTANT ENGINEER, KUNNATHOOR GRAMA PANCHAYTH. EXHIBIT P24. TRUE COPY OF THE REPORT PREPARED BY THE OVERSEER. EXHIBIT P25. TRUE COPY OF THE LETTER DATED 7/10/2011 OF ONE REGHUKUMAR SUBMITTED TO THE 5THRESPONDENT UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P26. TRUE COPY OF THE LETTER NO.A-4178/11 DATED 29/10/2011 OF THE 5TH RESPONDENT ADDRESSED TO SRI.V.K.RAGHUKUMAR IN RESPONSE TO HIS QUERY UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P27. TRUE COPY OF THE LETTER OF SRI.V.K.REGHUKUMAR SUBMITTED UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 5TH RESPONDENT. EXHIBIT P28. TRUE COPY OF THE LETTER NO.A4 221/11 DATED 29/10/2011 ADDRESSED SRI.V.K.REGHUKUMAR, IN RESPONSE TO EXHIBIT.P27 APPLICATION. EXHIBIT P29. TRUE COPY OF THE REPRESENTATION DATED 20/10/2011 SUBMITTED BY THE PETIIONER BEFORE THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS : NIL ------------------------------- / TRUE COPY / P.A. TO JUDGE VK HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.29655 Of 2011 and C.O.C.No.988 of 2011 ---------------------- Dated this the 9th day of December, 2011. J U D G M E N T The writ petition is filed seeking to quash Exts.P14 & P15, for a direction commanding the 5th respondent to forthwith number the shop building of the petitioner constructed and completed by him in accordance with Ext.P1 permit and for other incidental reliefs. 2. The petitioner constructed a shop room after obtaining Ext.P1 permit. After completion of the building, the petitioner approached the Panchayath to number the building. The Secretary rejected the request of the petitioner stating that the petitioner had not left out three metres distance from the stair case of his building to the PWD road. The petitioner admitted that there is a shortage of 20 cms from the stair case of his building to the PWD road. According to the petitioner, he had subsequently cured the defect and the Village Officer officer issued Ext.P5 location certificate specifying the distance from the stair case to the PWD road as three metres. According to the ::2:: W.P.(C).No.29655 Of 2011 and C.O.C.No.988 of 2011 petitioner, notwithstanding the fact that he made changes in the stair case portion and complied with the Building Rules, the Secretary of the Panchayath is not numbering the building without any justifiable reasons. 3. The petitioner filed W.P.(C).No.23082/2011 for the very same reliefs. This Court by judgment dated 6.9.2011 disposed of the writ petition directing the Secretary of the Grama Panchayath to consider the request of the petitioner for numbering the building. This Court further directed the Secretary or other officials of the Panchayath to ascertain the distance from the stair case to the PWD road before considering the matter and further directed that if it is found that the distance from the stair case of the building to the PWD road is 3 metres, the Secretary shall number the building of the petitioner forthwith. Ext.P10 is the copy of the judgment. 4. The grievance of the petitioner is that though this Court in Ext.P10 judgment had directed the Panchayath to inspect the site and ascertain the distance, the Secretary of the Panchayath had directed the Tahsildar, Sasthamcotta on ::3:: W.P.(C).No.29655 Of 2011 and C.O.C.No.988 of 2011 12.9.2011 to ascertain the distance and submit report within two days. Ext.P11 is the copy of the said letter intimating the said facts to the petitioner. Vide Ext.P12 the Secretary of the Panchayath addressed the Tahsildar, Sasthamcotta requesting to locate the boundary. The Tahsildar deputed Taluk Surveyor to measure and ascertain the distance. The petitioner submits that though the Taluk Surveyor had reported at the site on 17.9.2011, neither the Secretary of the Panchayath nor any other officers of the Panchayath was present at the site nor did they co-operate with the work of the Taluk Surveyor. The petitioner submits that the Secretary of the Panchayath did not comply with the directions issued by this Court to ascertain the distance from the stair case of the building to the PWD road, though this Court in Ext.P10 judgment directed the Secretary of the Panchayath to consider the request of the petitioner and to ascertain the distance within ten days from the date of receipt of a copy of the judgment. It seems that the direction is not complied with. The petitioner submits that the Panchayath Secretary has been doing whatever possible at her command to delay or see that the ::4:: W.P.(C).No.29655 Of 2011 and C.O.C.No.988 of 2011 building is not numbered in the near future and that the inaction was due to the influence exerted by other retail traders, those who want to prevent the petitioner from leasing out the building to Triveni Maveli Store. In the first writ petition also, the petitioner alleged that due to the inaction on the part of the Secretary of the Panchayath in numbering the building, the petitioner is put to hardship since he could not let out the building to Triveni Maveli Store. 5. The petitioner filed C.O.C.No.988/2011 complaining violation of the directions in Ext.P10 judgment. Secretary of the Panchayath was the 2nd respondent in W.P(C).No.23082/2011. In the contempt case the Secretary of the Panchayath filed an affidavit. In the affidavit it is inter alia stated that the Secretary had inspected the site of the building with the assistance of the Overseer attached to the Engineering Wing of the Panchayath and that on 14.9.2011 measurement was taken at the time of inspection and it is revealed that the front set back of the building of the petitioner at three points where 1.60 metres, 2.40 metres and 3.70 metres. It is further stated that the distance ::5:: W.P.(C).No.29655 Of 2011 and C.O.C.No.988 of 2011 between the stair case from the PWD road is found to be only one metre even after demolition of a portion of the stair case. Ext.R3 is the copy of the report prepared by the Overseer of the Engineering Wing attached to the Panchayath. It is further stated that the matter was immediately informed to the petitioner by a registered letter dated 16.9.2011. Ext.R4 is the copy of the said letter. It is further stated that the Taluk Surveyor on 17.9.2011 expressed his willingness to render the assistance to the Panchayath and as the distance was ascertained by the Secretary with the assistance of the Overseer before 17.9.2011, a second measurement was not requested. 6. The petitioner submits that Ext.P14 report (Annexure R3 in C.O.C) is not correct and the same was done behind his back. Petitioner submits that no notice has been issued to the petitioner and that the report is prepared without carrying out any inspection. It is alleged that Ext.P14 had been prepared for the purpose of escaping from the contempt proceedings which is pending before this Court. The petitioner also produced the copy of the letter issued by the Taluk Surveyor addressed to the 5th ::6:: W.P.(C).No.29655 Of 2011 and C.O.C.No.988 of 2011 respondent Panchayath requesting the 5th respondent to depute an officer to be present at the site of the building on 17.9.2011 at 11:00 a.m. It is alleged that though the 5th respondent received Ext.P14 letter she had deliberately failed either to be present herself or authorise any of her staff to be present at the site on 17.9.2011. The petitioner also produced Ext.P18 letter dated 20.9.2011. Ext.P17 is the report submitted by the Taluk Surveyor to the Tahsildar. In Ext.P17 it is stated that the Taluk Surveyor and his party were present at the site on 17.9.2011, but, neither the Secretary nor any other officer of the Panchayath did not chose to be present on that day and therefore, measurement could not be done. The petitioner submits that in O.S.No.198/2010, pending before the Munsiff Court, Sasthamcotta, the learned Munsiff by order dated 23.9.2011 directed the Tahsildar, Kunnathoor to give a report after ascertaining the distance between the petitioner's building and the PWD road. Pursuant to the said direction the Taluk Surveyor measured the distance between the petitioner's building and the PWD road and submitted a plan marked as Ext.P21. In Ext.P21 ::7:: W.P.(C).No.29655 Of 2011 and C.O.C.No.988 of 2011 plan, the Taluk Surveyor reported that the distance between the building of the petitioner and the PWD road in both the North and Southern ends are 3 metres and 3.2 metres respectively. The petitioner alleges that knowing fully well that there is no violation of the Building Rules, the Secretary of the Panchayath ignored the request of the Taluk Surveyor and refused to be present on the date the Taluk Surveyor had reported for measuring the distance. The petitioner submits that the Secretary did not inspect the site of the building on 14.9.2011 as claimed and deliberately made, to appear that she had complied with the direction of this Court. The petitioner also produced Ext.P23 letter which according to him establish that the respondent had never inspected the site on 14.9.2011. It is also stated that when the overseer had acknowledged in the report marked as Ext.R2(b), which fact was acknowledged by the Secretary in the counter affidavit in W.P.(C).No.23082/2011, and Ext.P12, her present attempt is to wreak vengeance on the petitioner and in the process indefinitely to delay the numbering of the building of the petitioner. It is further alleged that ::8:: W.P.(C).No.29655 Of 2011 and C.O.C.No.988 of 2011 Exts.P14 & P15 communications were prepared without inspecting the site and to further make it appear that the Secretary had complied with the directions contained in Ext.P10 judgment. 7. The Secretary of the Grama Panchayath has no case that the measurement was done in the presence of the petitioner on 14.9.2011. The very fact that the Secretary of the Panchayath sought assistance of the Taluk Surveyor for measurement would show that the distance between the petitioner's building and the PWD road can only be ascertained by the measurement to be carried out by the revenue authorities. 8. In these circumstances, this Court is of the view that the dispute can be solved by directing the respondents 3 & 4 to ascertain the distance between the petitioner's building and PWD road by conducting measurement. Accordingly, Exts.P14 & P15 are quashed. This Court direct the 4th respondent in the writ petition, Taluk Surveyor, to ascertain the distance between the petitioner's building and the PWD road by conducting measurement and submit the report to the Panchayath within a ::9:: W.P.(C).No.29655 Of 2011 and C.O.C.No.988 of 2011 period of two weeks from the date of receipt of a copy of this judgment. The Secretary of the Panchayath shall number the building of the petitioner, if the report shows that the distance ascertained is three metres or above. If the required distance is maintained, the Secretary of the Panchayath shall number the building and shall issue occupancy certificate, within one week thereafter. The writ petition is disposed of as above and the Contempt of Court Case is closed. HARUN-UL-RASHID, Judge. bkn/-