Case: CHERIYATH JYOTHI Vs. SAINUDEEN

non working of the disputed shed. It is presume that there will be no damage or harm to the respondent at the present stage. The property of the petitioner is filled with yielding rubber which is not taking yield for the last 1.5 years. The number of trees is nearly 50.This report is submitting before Hon?ble family court nedumangad along with order and the rough plan.Dated this the 18th day of February 2015.sd.M.M. BashirAdvocate Commissioner?7. Indeed, the appellant contested the correctness of the said report. However, the High Court after taking into account the relevant material and including the report submitted by the Advocate Commissioner, concluded that the purport of the award passed by the Lok Adalat did not preclude the respondent from constructing a new structure after taking due permission from the competent authority in that regard. The High Court rejected the argument of the appellant that the award was in the nature of a permanent prohibition from putting up any construction on the plot occupied by the respondent. Having so held, the High Court, taking note of the apprehension of the appellant that the respondent may start operating Rubber Sheet¬making machinery, which would inevitably cause air and water pollution, granted liberty to the appellant to take recourse to the remedy as may be permissible in law. The High Court also observed that such proceedings be decided on its own merits and in accordance with law. The view so taken by the High Court is the subject matter of challenge in this appeal.8. The appellant has argued the matter in person. Although the respondents have been served and respondent No.2 is represented through counsel, none appeared when the matter was called out for hearing.9. We have considered the relevant material placed on record and on considering the same in its proper perspective, we find no reason to interfere with the final conclusion recorded by the High Court in allowing the writ petition and setting aside the order passed by the Executing Court. As noticed from the representation submitted by the appellant to the Gram Panchayath, the core grievance was with regard to the unauthorised structure erected on the plot occupied by the respondent and which was being used as a Plant for making Rubber Sheets on a commercial basis. The grievance essentially was that the structure was in complete violation of the provisions and conditions of the Kerala Panchayath Building Rules, 2011 and also contributed to severe health hazards to those living in the vicinity. However, the Panchayath was essentially concerned with the unauthorised structure erected on the subject plot by respondent No.1. That grievance stood redressed by the award passed by the Lok Adalat recording the assurance given by respondent No.1 that he would demolish the existing structure within a period of three months. The fact that the structure, as it existed on the date of making of the award, was removed by respondent No.1 is reinforced from the stand taken by the Panchayath in its affidavit. Furthermore, respondent No.1 admittedly, constructed a new building on the same plot after taking prior permission of the competent authority in that regard, which presupposes that the structure as existed thereat in August, 2013 was removed, without which the new building could not have been erected. The fact that permit was granted to respondent No.1 to construct the new building is not only supported by the permit dated 9 th October, 2013 (Annexure- P8), but also from the affidavit filed on behalf of the Gram Panchayath dated 9 th January, 2015 and including the factual position stated in the report of the Advocate Commissioner dated 18 th February, 2015.10. The moot question is the width of the award passed by the Lok Adalat dated 23 rd August, 2013. It is, in our opinion, obviously limited to removal of the existing structure on the stated plot occupied by respondent No.1 within three months. That structure, as aforesaid, came to be removed, which fact is reinforced from the circumstances discussed hitherto. The Executing Court, however, erroneously opined that the structure, as it existed at the time of making of the award, was still not demolished. That finding is in the teeth of the documentary evidence and the assertions made on affidavit by respondent No.1 as well as the Gram Panchayath and including the factual position mentioned in the report of the Advocate Commissioner. The High Court rightly rejected the argument of the appellant that the effect of the award was to completely prohibit putting up of any structure/building on the stated plot occupied by respondent No.1, irrespective of the permission granted by the competent authority in that regard. The High Court was right in observing that whether respondent No.1 had constructed the structure as per the permit was a matter to be considered by the competent authority who had issued such a permit and it would be open to the appellant to approach that authority for appropriate reliefs, if so advised. Similarly, insofar as the nuisance likely to be caused to the appellant due to the activities of the respondent in the form of air pollution, water pollution, noise pollution or any other infringement of right, the appellant must take recourse to the appropriate remedy in that regard. Further, those proceedings will have to be decided on its own merits. The view so taken by the High Court is, in our opinion, unexceptional.11. We hold that the scope of the award was limited to removal of the structure as it existed at the relevant time. No direction has been issued to respondent No.1 to forebear from carrying on his legitimate activities, including business activities, from the stated plot occupied by him. If the activities of the respondent are in violation of any law or regulation, it would be open to the appellant to approach the concerned statutory authority or appropriate forum and seek relief in that regard as per law. Thus, we find no infirmity in the impugned judgment of the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. We have considered the relevant material placed on record and on considering the same in its proper perspective, we find no reason to interfere with the final conclusion recorded by the High Court in allowing the writ petition and setting aside the order passed by the Executing Court. As noticed from the representation submitted by the appellant to the Gram Panchayath, the core grievance was with regard to the unauthorised structure erected on the plot occupied by the respondent and which was being used as a Plant for making Rubber Sheets on a commercial basis. The grievance essentially was that the structure was in complete violation of the provisions and conditions of the Kerala Panchayath Building Rules, 2011 and also contributed to severe health hazards to those living in the vicinity. However, the Panchayath was essentially concerned with the unauthorised structure erected on the subject plot by respondent No.1. That grievance stood redressed by the award passed by the Lok Adalat recording the assurance given by respondent No.1 that he would demolish the existing structure within a period of three months. The fact that the structure, as it existed on the date of making of the award, was removed by respondent No.1 is reinforced from the stand taken by the Panchayath in its affidavit. Furthermore, respondent No.1 admittedly, constructed a new building on the same plot after taking prior permission of the competent authority in that regard, which presupposes that the structure as existed thereat in August, 2013 was removed, without which the new building could not have been erected. The fact that permit was granted to respondent No.1 to construct the new building is not only supported by the permit dated 9 th October, 2013 (Annexure- P8), but also from the affidavit filed on behalf of the Gram Panchayath dated 9 th January, 2015 and including the factual position stated in the report of the Advocate Commissioner dated 18 th February, 2015.The moot question is the width of the award passed by the Lok Adalat dated 23 rd August, 2013. It is, in our opinion, obviously limited to removal of the existing structure on the stated plot occupied by respondent No.1 within three months. That structure, as aforesaid, came to be removed, which fact is reinforced from the circumstances discussed hitherto. The Executing Court, however, erroneously opined that the structure, as it existed at the time of making of the award, was still not demolished. That finding is in the teeth of the documentary evidence and the assertions made on affidavit by respondent No.1 as well as the Gram Panchayath and including the factual position mentioned in the report of the Advocate Commissioner. The High Court rightly rejected the argument of the appellant that the effect of the award was to completely prohibit putting up of any structure/building on the stated plot occupied by respondent No.1, irrespective of the permission granted by the competent authority in that regard. The High Court was right in observing that whether respondent No.1 had constructed the structure as per the permit was a matter to be considered by the competent authority who had issued such a permit and it would be open to the appellant to approach that authority for appropriate reliefs, if so advised. Similarly, insofar as the nuisance likely to be caused to the appellant due to the activities of the respondent in the form of air pollution, water pollution, noise pollution or any other infringement of right, the appellant must take recourse to the appropriate remedy in that regard. Further, those proceedings will have to be decided on its own merits. The view so taken by the High Court is, in our opinion, unexceptional.We hold that the scope of the award was limited to removal of the structure as it existed at the relevant time. No direction has been issued to respondent No.1 to forebear from carrying on his legitimate activities, including business activities, from the stated plot occupied by him. If the activities of the respondent are in violation of any law or regulation, it would be open to the appellant to approach the concerned statutory authority or appropriate forum and seek relief in that regard as per law. Thus, we find no infirmity in the impugned judgment of the High Court.