Kaled vs Naserul Islam Sangam Committee
2021 Latest Caselaw 7199 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

  TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA,
                          1942

                  WP(C).No.1435 OF 2020(D)


PETITIONER/S:

             KALED,
             AGED 51 YEARS,
             S/O. KUNHEENKUTTY, VADAKKETHIL HOUSE,
             AREEKAD, THALAKKADATHUR P.O., TIRUR,
             MALAPPURAM DISTRICT

             BY ADV. SRI.P.T.SHEEJISH

RESPONDENT/S:

     1       NASERUL ISLAM SANGAM COMMITTEE,
             AREEKAD, REPRESENTED BY IT'S PRESIDENT,
             MAMMU MUSLIAR, S/O. MOOSA MUSLIAR,
             KAKKATERI HOUSE, AREEKAD,
             THALAKKADATHUR PO, TIRUR,
             MALAPPURAM DISTRICT, PIN - 676 103

     2       MABDAUL-ULOOM MADRASA COMMITTEE,
             REPRESENTED BY IT'S PRESIDENT,
             MAMMU MUSLIAR, S/O. MOOSA MUSLIAR,
             KAKKATERI HOUSE, AREEKAD,
             THALAKKADATHUR PO, TIRUR,
             MALAPPURAM DISTRICT, PIN - 676 103

     3       THE SECRETARY,
             TANALUR GRAMA PANCHAYATH,
             TANALUR P.O., TIRUR,
             MALAPPURAM DISTRICT, PIN 676 103
 W.P.(C) Nos.1435 of 2020 &
4283 of 2021
                                           2




               4         TANALUR GRAMA PANCHAYATH,
                         REPRESENTED BY IT'S SECRETARY,
                         TANALUR P.O., TIRUR,
                         MALAPPURAM DISTRICT, PIN 676 103.

               5         THE DEPUTY DIRECTOR OF PANCHAYATH,
                         OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH,
                         CIVIL STATION, KACHERI P.O.,
                         MALAPPURAM DISTRICT, PIN 691 013.

               6         TALUK SURVEYOR,
                         CIVIL STATION, TIRUR,
                         MALAPPURAM DISTRICT, SECRETARY,
                         NASERUL ISLAM SANGAM COMMITTEE,
                         AREEKAD, THALAKKADATHUR PO,
                         TIRUR, MALAPPURAM DISTRICT, PIN - 676 103.

               7         AMUP SCHOOL,
                         AREEKKAD, REPRESENTED BY ITS MANAGER,
                         RAUF, AGED 40 YEARS,
                         S/O. MUTHANIKAATT ABDULLA,
                         AREEKAD, NELLIKKAD, PO THALAKKADATHUR,
                         MALAPPURAM DISTRICT - 676 103

               8         THE PRESIDING OFFICER,
                         LOCAL SELF-GOVERNMENT TRIBUNAL,
                         COURT COMPLEX, VANCHIYOOR,
                         THIRUVANANTHAPURAM, PIN - 695 035

                         R2 BY ADV. SRI.G.SREEKUMAR (CHELUR)
                         R3-4 BY ADV. SMT.DEEPA NARAYANAN
                         R5 BY SRI.K.J.MANURAJ, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.03.2021, ALONG WITH WP(C).4283/2021(I), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 W.P.(C) Nos.1435 of 2020 &
4283 of 2021
                                           3


                        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                     THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

       TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

                                WP(C).No.4283 OF 2021(I)


PETITIONER/S:

                         KALED,
                         AGED 51 YEARS
                         S/O KUNHEENKUTTY, VADAKKETHIL HOUSE,
                         AREEKAD, THALAKKADATHUR.P.O, TIRUR,
                         MALAPPURAM DISTRICT.

                         BY ADV. SRI.P.T.SHEEJISH

RESPONDENT/S:

               1         NASERUL ISLAM SANGAM COMMITTEE,
                         AREEKAD, REPRESENTED BY IT'S PRESIDENT,
                         MAMMU MUSLIAR, S/O MOOSA MUSLIAR,
                         KAKKATERI HOUSE, AREEKAD,
                         THALAKKADATHUR.P.O., TIRUR,
                         MALAPPURAM DISTRICT,PIN-676103.

               2         MABDAUL-ULOOM MADRASA COMMITTEE,
                         REPRESENTED BY IT'S PRESIDENT,
                         AREEKAD, THALAKKADATHUR.P.O,
                         TIRUR, MALAPPURAM DISTRICT, PIN-676103.

               3         THE SECRETARY,
                         TANALUR GRAMA PANCHAYATH,
                         TANALUR.P.O, TIRUR,
                         MALAPPURAM DISTRICT, PIN-676103.

               4         TANALUR GRAMA PANCHAYATH,
                         REPRESENTED BY IT'S SECRETARY,
                         TANALUR.P.O, TIRUR,
                         MALAPPURAM DISTRICT, PIN-676103.

               5         THE DEPUTY DIRECTOR OF PANCHAYATH,
                         OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH,
                         CIVIL STATION, KACHERI.P.O,
                         MALAPPURAM DISTRICT, PIN-691013.
 W.P.(C) Nos.1435 of 2020 &
4283 of 2021
                                           4

               6         TALUK SURVEYOR,
                         CIVIL STATION, TIRUR,
                         MALAPPURAM DISTRICT, SECRETARY,
                         NASERUL ISLAM SANGAM COMMITEE,
                         AREEKAD, THALAKKADATHUR.P.O,
                         TIRUR, MALAPPURAM DISTRICT, PIN-676103.

               7         AMUP SCHOOL,
                         AREEKKAD, REPRESENTED BY ITS MANAGER,
                         RAUF, AGED 40 YEARS,
                         S/O MUTHANIKAATT ABDULLA, AREEKAD,
                         NELLIKKAD,PO THALAKKADATHUR,
                         MALAPPURAM DISTRICT-676103.

               8         THE PRESIDING OFFICER,
                         LOCAL SELF-GOVERNMENT TRIBUNAL,
                         COURT COMPLEX, VANCHIYOOR,
                         THIRUVANANTHAPURAM, PIN-695035.

                         R1 BY ADV. SRI.C.P.UDAYABHANU
                         R1 BY ADV. SRI.NAVANEETH.N.NATH
                         R1 BY ADV. SRI.GANGADHARAN MANAPPATT PALLIKUTH
                         R2 BY ADV. SRI.G.SREEKUMAR (CHELUR)
                         R3-4 BY SMT.DEEPA N., SC, TANALUR GRAMA PANCHAYAT
                         BY SRI.K.J.MANURAJ, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.03.2021, ALONG WITH WP(C).1435/2020(D), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 W.P.(C) Nos.1435 of 2020 &
4283 of 2021
                                                       5




                                   W.P.(C) Nos.1435 of 2020
                                                        &
                                             4283 of 2021
                                  -----------------------------------------------


                                             JUDGMENT

The issues arising for consideration in these matters

being closely interlinked, they are disposed of by this common

judgment. Parties and documents are referred to in this judgment,

as they appear in W.P.(C) No.1435 of 2020.

2. The first respondent obtained Ext.P1 building

permit from the fourth respondent Panchayat for construction of a

building. On 09.01.2020, the third respondent, the Secretary of

the Panchayat issued Ext.P14 notice to the first respondent stating

that the first respondent was not entitled to the building permit

granted to them, and directing the first respondent to show cause

why the building permit issued to them shall not be recalled. The

writ petition was filed thereafter, seeking directions to the third

respondent to take appropriate measures to stop the constructions

of the first respondent alleging that despite Ext.P14 notice, the first

respondent is continuing the constructions.

3. On 17.01.2020, this Court admitted the writ

petition and passed an interim order directing the first respondent W.P.(C) Nos.1435 of 2020 & 4283 of 2021

to maintain status quo as regards the construction undertaken by

them.

4. It is seen that during the pendency of the writ

petition, the building permit granted to the first respondent was

revoked by the third respondent, and the order passed in this

regard by the third respondent has been challenged by the first

respondent before the Tribunal for Local Self Government

Institutions in Appeal No.62 of 2020. It is also seen that in terms of

an interim order passed in the said appeal on 13.01.2021, the

Tribunal permitted the first respondent to continue the construction

in accordance with the plan and permit. W.P.(C) No.4283 of 2021

was filed by the petitioner thereupon challenging the interim order

of the Tribunal dated 13.01.2021.

5. Heard the learned counsel for the petitioner as

also the learned counsel for the first respondent.

6. The dispute between the petitioner and the first

respondent is as regards the right of the first respondent to obtain

the building permit referred to in the writ petition. The said dispute

is one to be decided primarily by the third respondent and the third

respondent has already decided the said dispute in favour of the

petitioner. The first respondent is certainly entitled to challenge

the decision of the third respondent in appeal before the Tribunal

and they have already instituted an appeal challenging the said

decision of the third respondent before the Tribunal, and the matter W.P.(C) Nos.1435 of 2020 & 4283 of 2021

is seized of by the Tribunal. This Court cannot therefore adjudicate

the said dispute in this proceedings under Article 226 of the

Constitution especially when the matter is pending consideration of

the Tribunal. The interim order dated 13.01.2021 is an ad interim

order passed by the Tribunal in the appeal filed by the first

respondent and if the petitioner is aggrieved by the said ad interim

order, it is for him to move the Tribunal for vacating the same and

a writ petition cannot be instituted to examine the correctness of

such an ad interim order.

In the said view of the matter, the writ petitions are

dismissed without prejudice to the right of the petitioner to move

the Tribunal for appropriate reliefs.

Sd/-

P.B.SURESH KUMAR, JUDGE rkj W.P.(C) Nos.1435 of 2020 & 4283 of 2021

APPENDIX OF WP(C) 1435/2020

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE BUILDING PERMIT DATED 04.08.2018 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P2 THE TRUE COPY OF THE COMMUNICATION DATED 12.09.2018, ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT, ALONG WITH THE REPORT OF THE OVERSEER AND ENGLISH TRANSLATION.

EXHIBIT P3 THE TRUE COPY OF THE COMMUNICATION SUBMITTED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT AND ENGLISH TRANSLATION.

EXHIBIT P4 THE TRUE COPY OF THE LEGAL OPINION DATED 26.09.2019, ISSUED BY THE LEGAL ADVISOR OF THE 3RD RESPONDENT AND ENGLISH TRANSLATION.

EXHIBIT P5 THE TRUE COPY OF THE STOP MEMO DATED 26.09.2019 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT AND ENGLISH TRANSLATION.

EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED 26.09.2019, PASSED BY THE WAQF BOARD OFFICE, MANJERI AND ENGLISH TRANSLATION.

EXHIBIT P7 THE TRUE COPY OF THE ORDER WITHDRAWING THE EXHIBIT P5 STOP MEMO DATED 28.09.2019, ISSUED BY THE 3RD RESPONDENT AND ENGLISH TRANSLATION.

EXHIBIT P8 THE TRUE COPY OF THE REPORT FROM THE TANALUR VILLAGE OFFICE TO THE 3RD RESPONDENT AND ENGLISH TRANSLATION. W.P.(C) Nos.1435 of 2020 & 4283 of 2021

EXHIBIT P9 THE TRUE COPY OF THE ORDER PASSED BY THE PANCHAYATH COUNSEL DATED 03.10.2019 AND ENGLISH TRANSLATION.

EXHIBIT P10 TRUE COPY OF THE REPORT AND SKETCH FILED BY THE 6TH RESPONDENT DATED 30.12.2019 AND ENGLISH TRANSLATION.

EXHIBIT P11 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 03.01.2019 AND ENGLISH TRANSLATION.

EXHIBIT P12 TRUE COPY OF THE INTERIM ORDER DATED 18.10.2019 IN WPC 27283 OF 2019

EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN WPC 27283 OF 2019 DT.19.12.19.

EXHIBIT P14 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 09.01.2020 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT AND ENGLISH TRANSLATION.

EXHIBIT P15 THE TRUE COPY OF THE PHOTOGRAPH WHICH SHOWS THE POSITION OF CONSTRUCTION WORK AS ON DATED 18.01.2020.

EXHIBIT P16 TRUE COPY OF THE ORDER DATED 18.01.2020, CANCELLING BUILDING PERMIT ISSUED BY THE 3RD RESPONDENT TO THE FIRST RESPONDENT ALONG WITH ENGLISH TRANSLATION.

EXHIBIT P17 THE TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE SUBSEQUENT CONSTRUCTION WORK AND DEVELOPMENTS MADE BY THE RESPONDENT 1 AND 2.

EXHIBIT P18 TRUE COPY OF THE POLICE COMPLAINT FILED BY THE PETITIONER DATED 26.01.2020 ALONG WITH ENGLISH TRANSLATION.

W.P.(C) Nos.1435 of 2020 & 4283 of 2021

RESPONDENT'S/S EXHIBITS:

EXT-R6(a) A TRUE COPY OF THE ORDER PASSED IN

I.A.NO.88 OF 20 IN APPEAL NO.62 OF

20 BY THE TRIBUNAL FOR LOCAL SELF

GOVERNMENT INSTITUTIONS,

THIRUVANANTHAPURAM DATED 13.1.21. W.P.(C) Nos.1435 of 2020 & 4283 of 2021

APPENDIX OF WP(C) 4283/2021 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE BUILDING PERMIT DATED 04.08.2018 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT

EXHIBIT P2 THE TRUE COPY OF THE STOP MEMO DATED 26.09.2019 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P3 THE TRUE COPY OF THE ORDER WITHDRAWING THE EXHIBIT P2 STOP MEMO DATED 28.09.2019,ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P4 THE TRUE COPY OF THE REPORT FROM THE TANALUR VILLAGE OFFICE TO THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE REPORT AND SKETCH FILED BY THE 6TH RESPONDENT DATED 30.12.2019.

EXHIBIT P6 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 09.01.2020 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 13.01.2021 PASSED BY THE 8TH RESPONDENT.