Baiju vs Pallichal Grama Panchayath
2021 Latest Caselaw 761 Ker

           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
                          --------------------------------------------------


                                         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. 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

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.