Kerala High Court

Beena Valsalan vs District Collector 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. 224 OF 2021
   AGAINST THE JUDGMENT IN WP(C).NO.16514/2020 OF HIGH COURT OF KERALA


REVIEW PETITIONER/PETITIONER:

           BEENA VALSALAN, AGED 56 YEARS,
           W/O.VALSALAN, 136C, SOUPARNIKA APARTMENTS, MANKUZHY ROAD,
           EDAPPALLY, ERNAKULAM DISTRICT, PIN - 682 024.

           BY ADVS. M/S.K.P.SUDHEER & SMT.C.K.SHERIN



RESPONDENTS/RESPONDENTS:

     1     DISTRICT COLLECTOR, KOZHIKODE, CIVIL STATION, ERANHIPALAM,
           KOZHIKODE - 673020.

     2     PANANGAD GRAMA PANCHAYATH, POST PANANGAD, KOZHIKODE DISTRICT,
           PIN 673 612 REPRESENTED BY ITS SECRETARY.

     3     RAJAN, AGED 55 YEARS,
           S/O.PERAVIKUTTY, THEKKUVEETTIL, VATTOLI BAZAR POST, THAMA-
           RASSERY, KOZHIKODE DISTRICT, PIN - 673 623.

           SRI. SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R1
           SRI.VINOD SINGH CHERIYAN, SC FOR R2
           ADVS. SRI.T.M.KHALID, SMT.K.P.SUSMITHA


     THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 28.06.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                        ALEXANDER THOMAS, J.
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                           R.P. No. 224 of 2021
           (arising out of the impugned judgment dated 25.8.2020 in
                             WP(C).No.16514 of 2020)
       ----------------------------------------------------------------
                 Dated this the 28th day of June, 2021

                                 ORDER

The above petition has been filed seeking review of

certain directions, more particularly those contained in clauses (ii) &

(iii) of para 7 of the judgment dated 25.8.2020 rendered by this

Court in WP(C).No.16514/2020 filed by the petitioner herein.

2. Heard Sri.K.P.Sudheer, learned counsel appearing for

the review petitioner/writ petitioner, Sri.Vinod Singh Cherian,

learned Standing Counsel for the Panangad Grama Panchayat,

appearing for R-2 and Sri.Saigi Jacob Palatty, learned Senior

Government Pleader appearing for R-1. Notice to R-3 herein has

already been dispensed in the writ petition stage itself.

3. It appears that, in compliance with the directions issued

by this Court in Ext.P-9 judgment dated 28.11.2019 in

WP(C).No.30279/2019 filed by the petitioner herein, the respondent

Secretary of the Grama Panchayat had issued Ext.P-10 order dated

4.1.2020 wherein it has been directed that the review petitioner/writ

petitioner should remove the 60 cm projection of the construction R.P. No. 224 of 2021

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made by her which is seen projected to the property of contesting

respondent No.3, and further that the writ petitioner should

surrender the original building permit and should also submit a

revised plan and revised building permit application, without show-

ing the abovesaid projection in the plan, etc. The writ petitioner took

up the case in above WP(C) that she is fully prepared to comply with

any directions in Ext.P-10 to remove the 60 cm projection which is

alleged to be projected towards the property of the 3 rd respondent,

and that this was the heart of the main dispute raised by the 3 rd

respondent, and that the further direction in Ext.P-10 that the writ

petitioner should necessarily surrender the original building permit

and should submit a revised building plan and revised building

permit application, is improper and unreasonable and is only

mischievous inasmuch as, the petitioner may engage a trouble to go

after a rigorous procedure of securing a revised building permit,

though the building construction is almost over.

4. The learned Standing Counsel for the Panangad Grama

Panchayat, would submit on the basis of instructions that the main

objective sought to be effected in Ext.P-10 is that the 60 cm

projection is to be immediately removed by the petitioner, so that

the main grievance of the 3rd respondent is redressed. R.P. No. 224 of 2021

..4..

5. It appears that the abovesaid 60 cm projection is clearly

sought to be permitted in the building permit application submitted

by the petitioner, and it was also explicitly permitted by the

respondent Secretary of the Grama Panchayat with building permit

issued to the writ petitioner as per Ext.P-3. Further it appears that

the 3rd respondent, who is the neighbour, had objected about the

illegality of the respondent Panchayat permitting construction by the

writ petitioner with the abovesaid projection of 60 cm to the

property of the 3rd respondent. Therefore, the main dispute of the

3rd respondent was that the abovesaid projection of 60 cm into his

property in the construction of the writ petitioner as permitted by

the Panchayat Secretary is illegal. That dispute has been sought to be

resolved by the Panchayat Secretary, directing the petitioner to

remove said 60 cm projection, though it was explicitly sought for in

the building permit application and granted building permit as per

Ext.P-3. The petitioner has fully complied with said direction, and

has removed the said 60 cm projection into the property of the 3 rd

respondent. This, the petitioner would say so, by placing reliance on

Anx.A1. Further that, original building permit as per Ext.P-3 dated

21.4.2018 has already been surrendered by the review

petitioner/writ petitioner to the respondent Panchayat secretary as R.P. No. 224 of 2021

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can be seen from the factual aspect to that effect admitted by the

Panchayat Secretary in para 1 of Anx.A-1 proceedings dated

22.12.2020.

6. This Court as per clause (i) on para 7 in the impugned

judgment had directed that the petitioner should immediately

demolish and remove said projection of 60 cm into the property of

the 3rd respondent at any rate within 2 weeks, and that the 2 nd

respondent Panchayat Secretary may ensure that abovesaid

direction is effected by a competent official of the Panchayat like the

Building Inspector, with prior notice to the petitioner and the

contesting respondent, to ascertain as to whether the petitioner has

complied with the requirement to remove and demolish the

abovesaid 60 cm projection mentioned in Ext.P-10. Further, this

Court as per clauses (ii) & (iii) of para 7 of the impugned judgment

had also directed that the petitioner may also not only surrender the

original of building permit, but should also submit a fresh

application for building permit and secure a revised building permit.

The abovesaid directions issued by this Court as per clauses (ii) &

(iii) of para 7 of the impugned judgment was only made since both in

the original application for building permit as well as the building

permit granted to the petitioner by the Panchayat Secretary as per R.P. No. 224 of 2021

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Ext.P-3, the abovsaid 60 cm projection has been mentioned.

7. Now, from Anx.A1 it appears that the petitioner has

complied with the requirement of surrendering the original of the

building permit and the petitioner would assert on the basis of

Anx.A1 issued by none other than the respondent Panchayat

Secretary that she has removed the abovesaid projection of 60 cm

into the property of the 3rd respondent. Hence, it is urged by the

counsel for the petitioner that this Court may review the directions

issued as per clauses (ii) & (iii) of para 7 of the impugned judgment.

8.The writ petitioners would contend that those directions are

unnecessary and the petitioner will be put to unnecessary troubles by

the respondent Panchayat officials in again having re-submitting a

revised building permit application and to secure a revised building

permit, even though the construction has been practically over and the

construction has been made fully in compliance with Ext.10 building

permit permit and the objection part as raised by the 3rd respondent

has already been duly removed by the petitioner. If, as a matter of fact,

the petitioner has removed the projection of 60 cm from the property

of the 3rd respondent, and has also surrendered the original of the

building permit as per Ext.P-3 to the respondent Panchayat

Secretary, as mentioned in Anx.A1 proceedings dated 22.12.2020 R.P. No. 224 of 2021

..7..

issued by none other than the respondent Panchayat Secretary, then

it appears that the further directions issued as per clauses (ii) & (iii)

of para 7 of the impugned judgment appears to be causing

unnecessary burden to the petitioner, only for the sake of

technicality.

9. Sri.Vinod Singh Cherian, learned Standing Counsel for

the respondent Panchayat would submit that his instruction is that

the petitioner may not have surrendered the original of the building

permit, and that he may not have removed the 60 cm projection to

the property of the 3rd respondent, etc.

10. Prima facie, this Court is not inclined to said plea made

on behalf of the respondent Panchayat Secretary, for the simple

reason that the abovesaid assertions made by the learned counsel

appearing for the review petitioner/writ petitioner has been

admitted even by the Panchayat Secretary in Anx.A-1 proceedings

issued by him on 22.12.2020. If, as a matter of fact, the petitioner

has actually removed the projection of 60 cm into the property of the

3rd respondent, and has also surrendered the original of Ext.P-3

building permit, then, direction in clauses (ii) & (iii) of para 7 of the

impugned judgment in the WP(C) is only to be reviewed and deleted.

11. However, to ensure that the interests of the respondent R.P. No. 224 of 2021

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Panchayat Secretary and the 3rd respondent are also duly protected,

it is ordered that clauses (ii) & (iii) of the directions issued by this

Court in para 7 of the impugned judgment dated 25.8.2020 in

W.P.(C) No. 16514/2020 will stand reviewed and deleted, but the

following additional conditions will be incorporated.

ii. It is for the 2nd respondent Panchayat Secretary to ascertain the correctness of his own submission in Anx.A1 that the original of Ext.P3 building permit has been duly surrendered by the petitioner. The respondent Panchayat Secretary will be at liberty to conduct an inspection of the petitioner's construction, by the Assistant Engineer of the Local Self Government Department of the locality concerned, to ascertain as to whether the petitioner has duly removed the projection of 60 cm into the property of the 3 rd respondent. The Assistant Engineer of the Local Self Government Department of the locality may conduct such inspection with due prior notice to the writ petitioner, the respondent Panchayat Secretary & contesting respondent No.3 in the WP(C), and if as a matter of fact, the said projection of 60 cm into the property of the 3rd respondent has been duly removed, it is for the said Assistant Engineer to give a report in that regard to the respondent Panchayat Secretary. If, on the other hand, the inspection by the Assistant Engineer reveals that the projection to the property of the 3 rd respondent has not been removed, then the said Assistant Engineer may take necessary steps that either the petitioner R.P. No. 224 of 2021

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herself removes the said projection, or he may take steps on his own to remove the said projection, if it is not removed by the petitioner.

iii. After completing the above formalities, it will be open to the re-

spondent Panchayat Secretary to strike out the entries in both the building permit application submitted by the petitioner, the original building plan as well as in Ext.P-10 original building permit, the relevant entries for 60 cm projection with the red ink, and on striking out such entries, it will be treated as if the petitioner has no claim whatsoever either in the building permit application or in the building permit or in the building plan for construction of the said projection. Such being the case, there is no question for the petitioner to submit any revised building permit application or to secure any revised building permit or revised building plan.

12. The impugned directions in the judgment dated

25.8.2020 in W.P.(C) No. 16514/2020 will stand modified as above.

It is also made clear that the directions in clause (i) of para 7 of the

judgment in the WP(C) is not in any manner reviewed or deleted,

and the same stands retained.

With these observations and directions, the above Review Petition will stand disposed.

Sd/-

ALEXANDER THOMAS, JUDGE MMG R.P. No. 224 of 2021

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APPENDIX OF RP.NO.224/2021

PETITIONER'S ANNEXURE

ANNEXURE A1 TRUE COPY OF LETTER NO.A4-10404/2017 DATED 22/12/2020 ISSUED BY THE 2ND RESPONDENT.