M.P.Rajeena And Another vs The Secretary, Areacode Grama ...
2021 Latest Caselaw 14822 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                         WP(C) NO. 4616 OF 2011
PETITIONER/S:

    1     M.P.RAJEENA, W/O K.V.ESAHAK,
          KUNNUMMAL HOUSE, THOTTEKKAD, PALLIPADY,, PULPATTA P.O.,
          MANJERI, MALAPPURAM DISTRICT.

    2     K.P.RUCKIYA, W/O. M.P.ESAHAK
          MANJERI PUTHIYEDATH HOUSE, PALAKULAM P.O.,, MANJERI,
          MALAPPURAM DISTRICT.

          BY ADV SRI.BABU S. NAIR



RESPONDENT/S:

    1     THE SECRETARY, AREACODE GRAMA PANCHAYATH
          AREACODE GRAMA PANCHAYAT, AREACODE P.O.,, MALAPPURAM
          DISTRICT, PIN-673 639.

    2     AREACODE GRAMA PANCHAYAT
          AREACODE P.O., MALAPPURAM DISTRICT, REPRESENTED, BY ITS
          SECRETARY-673 639.

          BY ADVS.
          SRI.M.M.ABDUL AZIZ SR.
          SRI.M.A.ABDUL HAKHIM
          SRI.M.G.ANON




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 4616 OF 2011
                                         2



                                   JUDGMENT

This writ petition is filed by the petitioners, who are the owners of 3.99

cents of landed property in R.S.No.361/5 of Ernad Taluk, Puthalath Desom,

within the limits of Areacode Grama Panchayat. According to the petitioners,

the petitioners have put up a two storied building and the front portion of the

building is Market - Chakungal road. In a stretch of land situated between the

building of the petitioners and the said road, the Panchayat is proposing to

construct a huge shopping complex with market on the northern side of the

land, which will cause serious prejudice to the petitioners. It is also pointed

out that the said stretch of land is only having six meters width and therefore,

no construction as is proposed by the Grama Panchayat can be put up,

following the Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat

Building Rules, 2011, and therefore seeks the following reliefs:-

"i) Issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents not to make any construction infront of the petitioner's property and building;

ii) Issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents not to make any building in violation of Kerala Municipality Building Rules and also directed them not to make any construction preventing, access to the petitioner property, air, water, light WP(C) NO. 4616 OF 2011

etc to the petitioners and their building.

iii) Issue such other reliefs which may deem fit and proper on the facts and circumstances of the case; and

iv) allow this Writ Petition with costs."

2. A detailed counter affidavit is filed by the Secretary of the Areacode

Grama Panchayat, basically contending that the Panchayat is having 64 cents

of land and a master plan was prepared for a new market complex costing

Rs.1.52 crores, which was approved by the Kerala Urban Development

Finance Corporation, and 75% of the project cost is funded by the said

Corporation as loan. The counter affidavit seems to have filed on

23.02.2011, on which date, it is stated that the construction has reached upto

the pillar works of the ground floor and the construction has been progressing

in a time bound manner. It is also submitted that the Panchayat has been

constructing the market complex in absolute compliance with the Kerala

Panchayat Raj Act, 1994, and the Kerala Municipality Building Rules, 1999,

which were made applicable to the Panchayat, consequent to the orders

issued by the State Government, by virtue of the powers conferred under the

provisions of the Kerala Panchayat Raj Act, 1994. It is also pointed out that,

in fact, the petitioners have carried out an illegal construction in the 1 st floor

of the existing building without securing permit, and consequent to which, the

Secretary of the Grama Panchayat has initiated action, which only forced the WP(C) NO. 4616 OF 2011

petitioners to file this writ petition before this Court.

3. A reply affidavit is filed by the petitioner reiterating the stand

adopted in the writ petition and refuting the contentions raised by the

Panchayat in its counter affidavit. In fact, the writ petition was admitted to

the files of this Court as early as on 17.02.2011, however, the interim order

sought for by the petitioners against the construction of the building by the

Panchayat, was not granted by this Court. Learned Counsel for the Panchayat

also submitted that, now 10 years have elapsed and the Panchayat has

secured an amount of Rs.1.52 crores for the construction of the building and

even though there is no instructions at present, there is every likelihood of the

building being completed by the Grama Panchayat.

4. In that view of the matter, since the subject matter was pending

before this Court for the past 10 years, I do not find any reason to retain this

writ petition, especially due to the fact that it was pending before this Court

without even being posted after 06.01.2014. If the construction carried out by

the Panchayat is in any manner illegal or in violation of the provisions of the

Kerala Panchayat Raj Act, 1994, the Kerala Municipality Building Rules, 1999,

or the Kerala Panchayat Building Rules, 2011, it is for the petitioners to take

appropriate action. I also feel that the contentions put forth by the petitioners

in this writ petition are premature, especially due to the fact that the WP(C) NO. 4616 OF 2011

petitioner has not produced sufficient records before this Court to

substantiate the contentions to the effect that the Panchayat is carrying out

the constructions over looking the provisions of the Kerala Panchayat Raj Act,

1994 and the Kerala Municipality Building Rules, 1999, or the Kerala

Panchayat Building Rules 2011, made applicable to the Grama Panchayats.

Therefore, leaving open the liberty of the petitioner to approach any

statutory authority, if there is any violation in the construction, this writ

petition is dismissed, declining the reliefs sought for.

Sd/-

SHAJI P.CHALY JUDGE

uu 16.07.2021 WP(C) NO. 4616 OF 2011

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REGISTERED ASSIGNMENT DEED DATED 16.7.2002 EXECUTED IN FAVOUR OF THE PETITIONERS

EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 10.2.2011 SUBMITTED BY THE PUBLIC AT LARGE BEFORE THE SECRETARY OF THE 1ST RESPONDENT

EXHIBIT P3 TRUE COPY OF THE LAWYER NOTICE ISSUED THROUGH LAWYER ON BEHALF OF THE PETITIONERS TO THE 1ST RESPONDENT

EXHIBIT P4 TRUE COPY OF THE SKETCH SHOWING THE PROPOSED CONSTRUCTION OF THE BAILING BY THE PANCHAYAT

EXHIBIT P5 TRUE COPY OF THE LAND RELINQUISHMENT FORM DATED 22.2.2000 GIVEN BY SRI.KOZHITHODY ACHUTHAN

EXHIBIT P6 TRUE COPY OF THE ESTIMATE PREPARED BY ASSISTANT ENGINEER, P.W.D. BRIDGES SECTION, MANJERI WITH RESPECT TO THE CONSTRUCTION OF CHAKKINGAL CAMP ROAD FOOTPATH

EXHIBIT P7 TRUE COPY OF THE LICENCE DATED 3.8.2010 ISSUED BY THE 1ST RESPONDENT IN FAVOUR OF THE 1ST PETITIONER'S HUSBAND

RESPONDENT'S EXHIBITS:

EXHIBIT R1(a) A TRUE SKETCH OF THE PROPERTIES OF THE PETITIONERS AND THE 2ND RESPONDENT

EXHIBIT R1(b) A PHOTOSTAT COPY OF THE REPORT PREPARED BY THE LDC OF THE 2ND RESPONDENT OF THE RESPONDENT

EXHIBIT R1(c) A PHOTOSTAT COPY OF THE NOTICE & PROVISIONAL ORDER ISSUED BY THE 1ST RESPONDENT WP(C) NO. 4616 OF 2011

EXHIBIT R1(d) A PHOTOSTAT COPY OF THE REPLY DATED SUBMITTED BY THE PETITIONERS TO THE 1ST RESPONDENT

EXHIBIT R1(e) A PHOTOSTAT COPY OF THE LETTER DATED ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS

EXHIBIT R1(f) A PHOTOSTAT COPY OF THE HEARING NOTICE ISSUED BY THE 1ST RESPONDENT

EXHIBIT R1(g) A PHOTOSTAT COPY OF THE REPLY BY THE 2ND PETITIONER