IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
WP(C).No.29025 OF 2020(C)
PETITIONER/S:
BAIJU,
AGED 43 YEARS, S/O.SREEDHARAN,
KALLUVILAKATHU VEEDU,
MUDAVOORPARA, BALARAMAPURAM P.O.,
PALLICHAL VILLAGE,
NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM-695501.
BY ADV. SRI.THIRUMALA P.K.MANI
RESPONDENT/S:
1 PALLICHAL GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
PRAVACHAMBALAM,
BALARAMAPURAM P.O.,
PALLICHAL VILLAGE,
NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM DISTRICT-695501.
2 KUMAR G.K.SATHEESH,
AGED 54 YEARS, S/O.GANGADHARAN NADAR,
KALLUVILAKATHU VEEDU, MUDAVOORPARA,
BALARAMAPURAM P.O.,
PALLICHAL VILLAGE,
NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM DISTRICT-695501.
R2 BY SRI.G.SUDHEER, STANDING COUNSEL
R2 BY ADV. SRI.R.HARIKRISHNAN (H-308)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-01-2021, THE COURT ON 08-01-2021 DELIVERED THE
FOLLOWING:
W.P.(C)No.29025 of 2020
2
W.P.(C)No.29025 of 2020
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JUDGMENT
Petitioner obtained Ext.P2 building permit from the first respondent Panchayat for the purpose of making a few additions to an existing building. While the construction of the building on the strength of Ext.P2 building permit was progressing, the Secretary of the Panchayat issued Ext.P3 order, on a complaint lodged by the second respondent, directing the petitioner to stop the construction alleging that the construction carried on by the petitioner is not in accordance with Ext.P2 building permit. As per Ext.P3, the petitioner was also directed to remove the unauthorised constructions allegedly carried on by him. The petitioner is aggrieved by Ext.P3 order. The case set out by the petitioner in the writ petition is that the construction carried on by him is in accordance with Ext.P2 building permit as also the building rules applicable and that the factual allegation, on the basis of which Ext.P3 order is issued, is incorrect.
2. Heard the learned counsel for the petitioner as also the learned counsel for the second respondent. W.P.(C)No.29025 of 2020 3
3. A perusal of Ext.P3 indicates that the same is a provisional order issued under Section 235W(1) of the Kerala Panchayat Raj Act, 1994 (the Act). It is mentioned in Ext.P3 order that if the petitioner does not comply with the direction contained therein, further action as provided for under Sections 235W(2) and 235W(3) of the Act will be taken. I am afraid, the petitioner cannot invoke the jurisdiction of this court under Article 226 of the Constitution for challenging an order passed under Section 235W(1) of the Act. However, it is seen that the petitioner is not given notice requiring him to show cause why Ext.P3 shall not be confirmed. Going by Section 235W(2) of the Act, notice should have been given to the petitioner simultaneous to Ext.P3 order.
In the circumstances, the writ petition is disposed of directing the Secretary of the first respondent to issue notice to the petitioner in terms of Section 235W(2) of the Act and take a decision as to whether Ext.P3 order needs to be confirmed, after affording the petitioner an opportunity of hearing. The direction aforesaid shall be complied with, within one month.
Sd/-
P.B.SURESH KUMAR, JUDGE rkj W.P.(C)No.29025 of 2020 4 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 16.9.2020 IN W.P(C)NO.19096 OF 2020.
EXHIBIT P2 TRUE COPY OF THE PERMIT AND APPROVED PLAN DATED 28.10.2020.
EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 21.12.2020 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE DEMOLITION FINAL ORDER DATED 01.06.2019 ISSUED AGAINST THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 03.10.2018 PASSED BY THE DIRECTOR OF VIGILANCE AND ANTI-CORRUPTION BUREAU.