Nandanan vs The District Disaster Management ...
2021 Latest Caselaw 14610 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
  WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                      WP(C) NO. 23088 OF 2020
PETITIONER:

          NANDANAN
          AGED 64 YEARS
          S/O.BALAKRISHNAN NAIR, SARAYOO, ATTOOR, MULLURKARA,
          THRISSUR, PIN-680583.
         BY ADVS.
               K.S.BHARATHAN
               SRI.ABEL ANTONY
               SRI.CHRISTINE MATHEW


RESPONDENTS:


          THE DISTRICT DISASTER MANAGEMENT AUTHORITY
    1     THRISSUR, REPRESENTED BY ITS CHAIRPERSON,
          DISTRICT COLLECTOR, COLLECTORATE, THRISSUR,
          PIN-680003.
    2     THE DISTRICT COLLECTOR,
          COLLECTORATE, CIVIL STATION, THRISSUR, PIN-680003.
    3     THE REVENUE DIVISIONAL OFFICER,
          COLLECTORATE, THRISSUR, PIN-680003.
    4     THE SUB DIVISIONAL MAGISTRATE,
          COLLECTORATE, CIVIL STATION, THRISSUR, PIN-680003.
    5     THE SECRETARY,MULLURKARA GRAMA PANCHAYATH,
          MULLURKARA, THRISSUR, PIN-680583.
    6     SANTHOSH,S/O.UNNIKRISHNAN NAIR, PERUVANCHERY HOUSE,
          SOUPARNIKA, ATTOOR VILLAGE, MULLURKARA, THRISSUR
          DISTRICT, PIN-680583.
          SRI.T.RAJASEKHARAN NAIR
          SRI.G.SREEKUMAR (CHELUR)
          SR.G.P-SMT.RANJITHA

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.07.2021, THE COURT ON 14.07.2021 DELIVERED THE FOLLOWING:
 W.P.(C) No.23088 of 2020           ..2..


                            JUDGMENT

The petitioner and the 6th respondent are neighbours and close

relatives. The case of the petitioner is that, he and his son are owning

immovable properties that are lying on the south of the properties

owned by the 6th respondent. They constructed a granite wall having a

height of 11.5 feet on the northern side of their property after taking

permission from the Panchayat in order to prevent soil erosion and for

protection of the house constructed in their properties. Pursuant to

Ext.P1 complaint submitted by the 6th respondent complaining that

the granite wall is in dangerous condition and would endanger the life

and property of the 6th respondent and his family members,

respondents 3 to 5 issued Exts. P3, P5 and P6 without granting the

petitioner reasonable opportunity of being heard. By Ext. P5 order,

the 5th respondent, the Secretary of the panchayat directed demolition

of the granite wall, referring to proceedings stated to have been taken

by the 2nd respondent under the provisions of the Disaster

Management Act, 2005, and section 239 of the Kerala Panchayat Raj

Act, 1994. Aggrieved by the same, the petitioner approached this W.P.(C) No.23088 of 2020 ..3..

Court by filing W.P.(C) No.16138 of 2020. The said writ petition was

disposed of by this Court by Ext.P8 judgment dated 10.08.2020

remitting the matter in relation to Ext. P5 to the 5 th respondent, the

Secretary of the panchayat for consideration and decision afresh.

2. Pursuant to the directions in Ext.P8 judgment, the 5 th

respondent passed Ext.P10 order holding that the petitioner has not

brought out anything to refute the previous orders and report and

therefore Ext. P5 order is sustainable and directing the petitioner to

demolish the granite wall. Ext. P10 order is impugned in this writ

petition.

3. Heard the learned Counsel for the petitioner, learned

Government Pleader, learned Counsel for the 6 th respondent as also

the learned Standing Counsel appearing for the Panchayat and

perused the respective counter affidavits filed by respondents 5 and 6.

4. According to the petitioner, Ext. P10 order is in blatant

violation of the specific direction in Ext.P8 judgment to inspect the

granite wall by a competent officer. The 6 th respondent, however,

would contend that enough number of inspections were carried out in W.P.(C) No.23088 of 2020 ..4..

the property in question on the basis of which ultimately it was

decided that the wall in question has to be demolished since the same

does not have necessary strength to withstand the pressure caused by

the weight of the land situated in the property.

5. While remitting the matter in relation to Ext. P5 to the 5 th

respondent, this Court in Paragraph '6' of Ext P8 judgment held as

follows:

"6. Without getting into the merits of the controversy in any manner, it is only to be held that the matter would require serious reconsideration at the hands of the 5th respondent and Ext.P5 shall be construed only as a show cause notice which does not attain any finality. The matter in relation to Ext.P5 will stand remitted to the 5th respondent-Secretary of the Grama Panchayat for consideration and decision afresh. The 5th respondent will ensure that an inspection its conducted by a competent official of the Panchayat with due prior notice to the petitioner and the 6 th respondent to ascertain the correctness of the allegations raised by the 6th respondent in Ext.P1 complaint and the copies of the inspection report should be given to both the petitioner and the 6 th respondent in advance and thereafter, the 5th respondent should afford reasonable opportunity of being heard to the petitioner and the 6th respondent and then take a considered decision in the matter, in accordance with law, without much delay, preferably within a period of 2 weeks from the date of receipt of a certified copy of this judgment. The abovesaid process of inspection shall be duly conducted and completed by the inspecting officer concerned within 5 days from W.P.(C) No.23088 of 2020 ..5..

the date of receipt of a copy of this judgment. Until further orders are passed, further coercive steps shall be kept in abeyance."

(emphasis supplied)

6. Thus, this Court had specifically directed the 5th respondent to

ensure that an inspection is conducted by a competent official of the

Panchayat with due notice to the petitioner and the 6th respondent to

ascertain the correctness of the allegations raised by the 6 th

respondent in Ext. P1 complaint. It was also directed that the copies

of the inspection report shall be given to the parties in advance.

There is nothing in Ext.P10 order to indicate that the said order was

passed after conducting an inspection of the structure by any

competent official of the Panchayat as directed in Ext. P8 judgment.

On the other hand, a perusal of the counter affidavit filed by the 5 th

respondent as well Ext.R5(e) letter of the Assistant Engineer of the

Panchayat produced along with the counter affidavit would show that

no inspection of the structure as directed in Ext.P8 judgment was

conducted before passing Ext.P10 order.

7. Paragraph 3 of the counter affidavit filed by the 5 th W.P.(C) No.23088 of 2020 ..6..

respondent is extracted below:-

"3. As a matter of fact this respondent issued another letter to the Assistant Engineer by requesting to conduct inspection in the presence of both the parties and to submit a report as directed by this Honourable court in W.P.(C) No.16138/2020. A true photocopy of the letter dated 4.8.2020 issued to the Assistant Engineer LSGD section is produced herewith and marked as Exhibit R5(d). In compliance with Exhibit R5(d), the Assistant Engineer LSGD Section submitted another report stating that the inspection already conducted was in the presence of both the parties and all of them were convinced the reality and therefore the orders to that effect are to be issued by the Secretary after conducting a personal hearing as directed by this Honourable Court and pass appropriate orders in accordance with law. A true photocopy of the report dated 7.9.2020 submitted by the Assistant Engineer LSGD to this respondent is produced here with and marked as Exhibit R5(e)".

(emphasis supplied)

8. On going through the same, it is evident that the Assistant

Engineer had informed the Secretary of the Panchayat that since an

inspection has already been conducted in the presence of both the

parties earlier, it is not necessary to conduct any further inspection.

No report of any inspection conducted pursuant to the direction in

Ext. P8 judgment is produced by the 5th respondent. Ext. P10 order is

therefore, passed in defiance of Ext.P8 judgment of this Court. It is

not a considered decision. Therefore, Ext.P10 order passed by the 5 th W.P.(C) No.23088 of 2020 ..7..

respondent is set aside. The matter in relation to Ext.P5 will once

again stand remitted to the 5th respondent, the Secretary of the Grama

Panchayat for consideration and decision afresh. The 5th respondent

will ensure that an inspection of the granite wall is conducted by a

competent official of the Panchayat with due prior notice to the

petitioner and the 6th respondent to ascertain the correctness of the

allegations raised by the 6th respondent in Ext.P1 complaint and the

copies of the inspection report should be given to both the petitioner

and the 6th respondent in advance and thereafter, the 5th respondent

should afford reasonable opportunity of being heard to the petitioner

and the 6th respondent and then take a considered decision in the

matter, in accordance with law, without any delay, at any rate, within

a period of 2 weeks from the date of receipt of a certified copy of this

judgment. The aforesaid process of inspection shall be duly conducted

and completed by the inspecting officer concerned within 5 days from

the date of receipt of a copy of this judgment. Till orders are passed

as above, the interim order of stay of Ext. P10 passed by this Court on

27.11.2020 will continue. It is made clear that this Court has not made W.P.(C) No.23088 of 2020 ..8..

any observation on the merits of the case.

The writ petition is disposed of with the above directions.

Sd/-

                           MURALI PURUSHOTHAMAN
                                   JUDGE
 W.P.(C) No.23088 of 2020             ..9..



                     APPENDIX OF WP(C) 23088/2020

PETITIONER'S EXHIBITS:
EXHIBIT P1                 TRUE COPY OF THE COMPLAINT SUBMITTED BY
                           THE 6TH RESPONDENT TO THE 3RD RESPONDENT
                           DATED 3.2.2020.
EXHIBIT P2                 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD
                           RESPONDENT DATED 12.2.2020.
EXHIBIT P3                 TRUE COPY OF THE ORDER ISSUED BY THE 4TH
                           RESPONDENT DATED 2.6.2020.
EXHIBIT P4                 TRUE COPY OF THE OBJECTION TO EXHIBIT P3
                           DATED 26.6.2020.
EXHIBIT P5                 TRUE COPY OF THE COMMUNICATION DATED

3.8.2020 BEARING NO.B4-3283/20 ISSUED BY THE 5TH RESPONDENT TO THE SON OF THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE COMMUNICATION FROM THE 4TH RESPONDENT TO THE 5TH RESPONDENT DATED 14.7.2020.

EXHIBIT P7 TRUE COPY OF THE COPY APPLICATION DATED 5.8.2020 SUBMITTED ON BEHALF OF THE PETITIONER.

EXHIBIT P8 TRUE COPY OF THE JUDGEMENT DATED 10.8.2020 IN W.P.(C) NO.16138 OF 2020.

EXHIBIT P9 TRUE COPY OF THE REPLY FILED BY PETITIONER DATED 22.9.2020.

EXHIBIT P10 TRUE COPY OF THE PROCEEDING NO.B4/3283/20 DATED 12.10.2020 BY THE 5TH RESPONDENT.

RESPONDENTS' EXHIBITS:

EXHIBIT R5(A):A TRUE COPY OF THE LETTER DATED 14.7.2020 ISSUED BY THE SUB DIVISIONAL MAGISTRATE THRISSUR TO THE SECRETARY MULLURKARA GRAMA PANCHAYAT.

EXHIBIT R5(B):A TRUE PHOTOCOPY OF THE LETTER DATED 29.7.2020 ISSUED BY THIS RESPONDENT TO THE ASSISTANT ENGINEER, LSGD SECTION, MULLURKARA GRAMA PANCHAYAT.

EXHIBIT R5(C):A PHOTOCOPY OF THE REPORT DATED 3.8.2020 SUBMITTED BY THE ASSISTANT ENGINEER.

EXHIBIT R5(D):A TRUE PHOTOCOPY OF THE LETTER DATED 4.8.2020 W.P.(C) No.23088 of 2020 ..10..

ISSUED TO THE ASSISTANT ENGINEER LSGD SECTION. EXHIBIT R5(E):A TRUE PHOTOCOPY OF THE REPORT DATED 6.9.2020 SUBMITTED BY THE ASSISTANT ENGINEER LSGD TO THIS RESPONDENT.

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