Kerala High Court
Francis Oommen vs K.P.Natarajan on 28 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943
RP NO. 162 OF 2021
AGAINST THE JUDGMENT IN WP(C).NO.7151/2020 OF THE
HIGH COURT OF KERALA
REVIEW PETITIONER:
FRANCIS OOMMEN, AGED 72 YEARS,
S/O. OOMMEN, RESIDING AT MELAM PARAMBIL, AGENCIES,
PODIYADI, THIRUVALLA, PATHANAMTHITTA DISTRICT,
PIN 689 110.
BY ADVS.P.HARIDAS,SRI.BIJU HARIHARAN,
SRI.P.C.SHIJIN,SRI.RISHIKESH HARIDAS
RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:
1 K.P.NATARAJAN, AGED 75 YEARS,
S/O. PADMANABHAN, PLAPARAMBIL HOUSE, PODIYADI P.O,
THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN 689 110.
2 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
GOVERNMENT OF KERALA, LOCAL SELF GOVERNMENT
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN 695 301.
3 NEDUPURAM GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY PANCHAYATH OFFICE,
AMBALAPUZHA-THIRUVALLA ROAD, PODIYADI, THIRUVALLA,
PATHANAMTHITTA PIN 689 110.
SRI.C.ANILKUMAR(KALLESSERIL), ADVOCATE FOR R1
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R2
SRI.SAJITH KUMAR V., ADVOCATE FOR R3
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
28.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.P. No. 162 of 2021
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ALEXANDER THOMAS, J.
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R.P. No. 162 of 2021
(arising out of the impugned judgment dated 10.3.2020 in
WP(C).No.7151 of 2020)
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Dated this the 28th day of June, 2021
ORDER
The above petition has been filed by R-3 in the above
WP(C) seeking for review and recall of the impugned judgment
dated 10.3.2020 rendered by this Court in WP(C).No. 7151/2020
filed by the writ petitioner/R-1 in the R.P.
2. Heard Sri.P.Haridas, learned counsel appearing for the
review petitioner/R-3 in the WP(C), Sri.C.Anikumar Kallisseril,
learned counsel appearing for the writ petitioner/R-1 in the R.P.,
Sri.V.Sajith Kumar, learned Standing Counsel for Nedumpuram
Grama Panchayat, appearing for 3rd respondent in the R.P. (R-2 in
WP(C)) and Sri.Saigi Jacob Palatty, learned Senior Government
Pleader appearing for the respondent State of Kerala.
3. Two contentions are urged by the review petitioner; one
that the impugned judgment rendered by this Court on 10.3.2020 in
WP(C).No. 7151/2020 is without issuing notice to the review
petitioner/R-1 in the WP(C). Second ground is that, going by the
factual scenario, the respondent Secretary of Nedumpuram Grama
Panchayat, has no jurisdiction to take a decision in the matter in the
R.P. No. 162 of 2021
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plea for demolition of building of the review petitioner, since the
jurisdictional facts required for the invocation of the powers, if any,
conferred under the Kerala Panchayat Raj Act and the Rules
framed thereunder have not been satisfied in this case. In this
regard, it is urged by the counsel for the review petitioner that
the very factual plea put up by the writ petitioner that the building
of the review petitioner is in a seriously dilapidated condition and
is likely to fall down at any time whereby posing serious danger to
the nearby property of the writ petitioner, etc are absolutely
untenable and factually wrong, which will be clear from a mere
inspection conducted by any qualified engineer. Further that, the
review petitioner's building is a strong and well maintained building,
and therefore no action as conceived under the Kerala Panchayat
Raj Act and the Rules framed thereunder would lie in the
instant case. In that regard it was also urged that since this Court
had directed the respondent Secretary of the Grama Panchayat
to consider the matters in Ext.P-2 representation and to take a
considered decision thereon after affording reasonable opportunity
of being heard to both sides, the respondent Panchayat
Secretary is taking the stand that irrespective as to whether
Ext.P-2 representation is maintainable or not, is bound to take
a decision in the matter, and that the said approach of
R.P. No. 162 of 2021
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Panchayat Secretary would cause adverse consequences on the
review petitioner, etc.
4. After hearing both sides, it is only to be noted that it is
true that this Court has not issued notice to R-3 in the WP(C) before
rendering the judgment in the WP(C) at the admission stage.
However, the direction in para 4 of the judgment in above WP(C) is
not to be construed as if the plea of the writ petitioner regarding the
very maintainability of the action proposed in Ext.P-2 is not to be
examined by the respondent Secretary of the Grama Panchayat.
5. As a matter of fact, the petitioner has got a specific case
that the factual case set up in Ext.P-2 representation is plainly
untenable and factually wrong, and that no action will lie against the
building of the petitioner in terms of the provisions contained in the
Kerala Panchayat Raj Act and the Rules framed thereunder, then
certainly the review petitioner is entitled to raise such contentions
regarding the very maintainability of the action are proposed in
terms of Ext.P-2.
6. The counsel for the review petitioner would submit on
the basis of instructions that the review petitioner would be fully
satisfied if this Court directs the respondent Secretary of the Grama
Panchayat to examine and decide on the plea for maintainability as a
R.P. No. 162 of 2021
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preliminary point, after ensuring that an inspection of the building is
conducted by a qualified engineer, and copy of inspection report is
given to both sides before a preliminary decision is taken on the very
maintainability of the action proposed as per Ext.P-2.
7. Accordingly, it is ordered that the respondent Secretary
of the Nedumpuram Grama Panchayat is obliged to decide on the
plea for maintainability as a preliminary issue as to whether the
action proposed in terms of Ext.P-2, and in that regard the
respondent Secretary of the Panchayat will ensure that an effective
inspection of the building of the review petitioner is conducted by a
qualified engineer with notice to the review petitioner and the writ
petitioner, and copy of said inspection report should also be given to
both of them in advance to ascertain the factual scenario as to
whether the review petitioner's building is in a seriously dilapidated
condition, and is posing serious danger to the nearby property of the
writ petitioner, etc as contended by the writ petitioner, or whether it
is not so as contended by the review petitioner, etc. The inspection
shall be conducted by the respondent Panchayat Secretary through a
qualified engineer with notice to both sides within 2 - 3 weeks and
copy of said inspection report should also be given to both sides.
Thereafter, the respondent Secretary of Grama Panchayat will
R.P. No. 162 of 2021
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affording reasonable opportunity of being heard to both sides and
then take a considered decision on the objection of the review
petitioner as a preliminary issue as to whether the action proposed
in terms of Ext.P-2 is maintainable or not, going by the provisions
contained in the Kerala Panchayat Raj Act and the Rules framed
thereunder. Only if the respondent Panchayat Secretary decides for
good and sound reason that the action proposed is maintainable, can
he enter in to merits of the controversy further.
8. The impugned directions and orders passed by this
Court in the judgment dated 10.3.2020 in the above WP(C) will
stand modified as above. The review petitioner may forward a copy
of this order to the respondent Secretary of the Grama Panchayat for
necessary information.
With these observations and directions, the above
Review Petition will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
MMG
R.P. No. 162 of 2021
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APPENDIX OF R.P.NO.162/2021
PETITIONER'S ANNEXURES
ANNEXURE 1 TRUE COPY OF THE SALE DEED NO.
3169/1982 OF THE SRO THIRUVALLA DATED
07-12-1982
ANNEXURE 1(a) TRUE COPY OF THE SALE DEED NO.
918/1983 OF THE SRO THIRUVALLA DATED
07-04-1983
ANNEXURE 1(b) TRUE COPY OF THE SALE DEED NO 926/1983
OF THE SRO THIRUVALLA DATED 07-04-1983
ANNEXURE 1(c) TRUE COPY OF THE SALE DEED NO.
1061/1992 OF THE SRO KADAPRA DATED 11-
12-1992
ANNEXURE 1(d) TRUE COPY OF THE SALE DEED NO.
230/2002 OF THE SRO KADAPRA DATED 30-
04-2002
TRUE COPY OF THE TAX RECEIPT OF THE
ANNEXURE 1(e) PETITIONER DATED 15.06.2020
ANNEXURE 2 TRUE COPY OF THE SALE DEED NO.
764/1985 DATED 07-03-1985 OF SRO
THIRUVALLA IN THE NAME OF THE SISTER
OF THE PETITIONER SMT. ANNIAMMA MAMMEN
ANNEXURE 3 TRUE COPY OF THE PLAINT IN O.S NO.
222/2020 BEFORE THE MUNSIFF COURT,
THIRUVALLA
ANNEXURE 4 TRUE COPY OF THE NOTICE NO. B1-
1093/2020 OF THE 3RD RESPONDENT TO THE
PETITIONER DATED 15-06-2020, WITHOUT
THE ENCLOSURE
ANNEXURE 5 TRUE COPY OF THE OBJECTION FILED BY
THE PETITIONER BEFORE THE 3RD
RESPONDENT DATED 09-07-2020
ANNEXURE 6 TRUE COPY OF THE NOTICE NO. B1
1093/2020 OF THE 3RD RESPONDENT TO THE
PETITIONER DATED 14-07-2020
ANNEXURE 7 TRUE COPY OF THE NOTICE NO. B1-
1093/2020 OF THE 3RD RESPONDENT TO THE
PETITIONER DATED 12-10-2020
