IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
WP(C) NO. 18651 OF 2022
PETITIONER
KIZHUVILAM GRAMA PANCHAYAT
MUDAPURAM P.O., THIRUVANANTHAPURAM DISTRICT - 695 304,
REPRESENTED BY ITS SECRETARY.
BY ADV LATHEESH SEBASTIAN
RESPONDENT
MUMTHAS .S.S,
D/O SAFEERA BEEVI, AGED 45 YEARS, S.S.VILLA,
PARAYATHUKONAM, KIZHUVILAM P.O.,
THIRUVANANTHAPURAM DISTRICT - 695304.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.18651 OF 2022
2
JUDGMENT
Dated this the 9th day of June, 2022 The petitioner, Kizhuvilam Grama Panchayat, is before this Court aggrieved by Ext.P6 interim order dated 23.05.2022 in I.A No.784 of 2022 in Appeal No.322 of 2022, passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram.
2. The petitioner states that the respondent filed Appeal No.322 of 2022 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram and sought a direction to dispose of an application submitted by the respondent for Occupancy Certificate for the residential building constructed by the respondent in Survey No.375/8-1 of Kunthalloor Village in Chirayinkeezhu Taluk. The interim prayer sought for by the respondent in her application was for numbering the building provisionally. WP(C) NO.18651 OF 2022 3
3. The petitioner states that the respondent made construction in violation of Section 27A(6) of the Kerala Conservation of Paddy Land and Wetland Act, 2008. This fact was suppressed from the Tribunal. Without there being an appropriate prayer, the Tribunal directed the petitioner-Grama Panchayat to issue Occupancy Certificate to the building constructed contrary to the Building Permit violating the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008.
4. The learned counsel for the petitioner urged that the Tribunal committed grave error in passing Ext.P6 order, while there was no such prayer in the appeal or interim application filed by the respondent. The Tribunal exceeded its jurisdiction in passing Ext.P6 order. The Tribunal ought to have issued notice to the petitioner and heard the petitioner, before jumping into any conclusion in favour of the petitioner. By WP(C) NO.18651 OF 2022 4 Ext.P6 order, the Tribunal has directed the petitioner-Grama Panchayat to file a compliance report by 14.06.2022. Ext.P6 order of the Tribunal is liable to be interfered with and the Tribunal shall be directed to grant opportunity of hearing to the petitioner-Grama Panchayat.
5. I have heard the learned counsel for the petitioner.
6. From the pleadings in the writ petition and the exhibits produced before this Court, it is seen that the respondent has filed Appeal No.322 of 2022 before the Tribunal for Local Self Government Institutions invoking Rules 8 and 15 of the Tribunal for Local Self Government Institutions Rules, 1999. The respondent was aggrieved by non-issuance of Occupancy Certificate. The respondent urged in Ext.P4 appeal that as per the proviso to Rule 20(2) of the Kerala Panchayat Building Rules, 2019, if an application for Occupancy Certificate along with a completion plan is submitted by an applicant, the same shall be disposed within WP(C) NO.18651 OF 2022 5 15 days from the date of receipt. The respondent alleged that the petitioner-Grama Panchayat is sitting over the application submitted by the petitioner.
7. The Tribunal on perusal of materials on record found that the respondent has established a prima facie case. Accordingly, by Ext.P6 interim order, the petitioner was directed to issue Occupancy Certificate to the building constructed as per permit, provisionally.
9. A perusal of Ext.P6 would show that Ext.P6 is only an interim order making a provisional arrangement. Ext.P6 does not finally conclude the appeal. If the petitioner has a grievance against Ext.P6 that has been passed without taking into consideration true facts and without granting an opportunity of hearing to the respondent in the appeal, the appropriate remedy available to the petitioner, is to approach the Tribunal making interim application to vacate the interim order, which has been allegedly passed without considering WP(C) NO.18651 OF 2022 6 the true facts. Without availing such remedy, the petitioner cannot rush to this Court invoking Article 226 of the Constitution of India.
In the circumstances, the writ petition is dismissed, but permitting the petitioner to approach the Tribunal for recalling Ext.P6 interim order. This Court is sure that if such an I.A. is filed, the Tribunal will indeed consider such application, taking into consideration the urgency pointed out by the petitioner.
sd/-
N.NAGARESH JUDGE hmh WP(C) NO.18651 OF 2022 7 APPENDIX OF WP(C) 18651/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER OF THE SECRETARY OF KIZHUVILAM GRAMA PANCHAYAT DATED 28.07.2021.
Exhibit P2 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE SECRETARY OF THE KIZHUVILAM GRAMA PANCHYAT TO THE RESPONDENT DATED 06.08.2021.
Exhibit P3 TRUE COPY OF THE COMPLETION REPORT FOR OCCUPANCY CERTIFICATE TO THE BUILDING CONSTRUCTED BY THE RESPONDENT, ALONG WITH PLAN.
Exhibit P4 TRUE COPY OF THE APPEAL MEMORANDUM IN APPEAL NO.322/2022 OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.
Exhibit P5 TRUE COPY OF THE PETITION IN I.A NO.784/2022 IN APPEAL NO.322/2022.
Exhibit P6 TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN I.A. NO.784/2022 IN APPEAL NO.322/2022 DATED 23.05.2022.