Kumily Grama Panchayath vs The Local Self Government ...
2021 Latest Caselaw 22227 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                       WP(C) NO. 29423 OF 2009
PETITIONER:

          KUMILY GRAMA PANCHAYATH
          REPRESENTED BY ITS SECRETARY (SPECIAL GRADE), KUMILY
          (P.O.),IDUKKI.
          BY ADVS.
          S.SHANAVAS KHAN
          SHRI. LIJI J. VADAKKEDOM, SC, KUMILY GRAMA PANCHAYAT


RESPONDENTS:

    1     THE LOCAL SELF GOVERNMENT DEPARTMENT
          REPRESENTED BY ITS PRINCIPAL SECRETARY,
          GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.
    2     THE DISTRICT COLLECTOR, IDUKKI.
    3     THE DISTRICT MEDICAL OFFICER, IDUKKI.
    4     KURIAN SCARIA
          PUTHIYA PURAYIDATHIL HOUSE, ATTAPPALLAM,KUMILY (P.O.),
          IDUKKI DISTRICT.
          BY ADVS.
          R1 & R2 BY SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.29423 of 2009                  2




                                    JUDGMENT

this the 5th day of November, 2021

This writ petition is filed by the petitioner seeking the following

reliefs:

(i) call for the records leading to Exhibit P15 and quash the same and quash the same by issuing a writ of certiorari.

(ii) Issue a writ of mandamus or any other writ, order or direction directing the 2nd respondent to grant licence under Rule 6 of the Kerala Panchayath Raj (Burning and Burial Ground) Rules, 1998 ignoring the existence of shed of the 4 th respondent

(iii) Pass such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

2. In effect the challenge made by the writ petitioner i.e., the

Kumily Grama Panchayath, is against Exhibit P15 order passed by the

Tribunal for Local Self Government Institutions in Appeal No.619/2009,

filed by one Kurian Scaria, Puthiya Purayidathil House, Kumily.P.O.,

Idukki District - the 4th respondent. The Tribunal, in fact found that the

appeal was liable to be allowed since after the construction, the 4 th

respondent has filed a completion certificate before the Secretary of

the Grama Panchayat, in which, no decision was taken within 15 days in

contemplation of the provisions of the Kerala Municipality Building

Rules, 1999, which was extended to the Panchayath area as per orders

of the Government dated 6.6.2007 bearing No.G.O.(MS)

No.150/2007/LSGD, by virtue of the powers conferred under section

274 (1) of the Kerala Panchayath Raj Act, 1994.

3. The 4th respondent has secured a deemed occupancy in

contemplation of the law. The legality and correctness of the said order

passed by the Tribunal for Local Self Government Institutions is

challenged in this writ petition by the Kumily Grama Panchayat.

4. Today when the matter was taken up, learned standing

counsel Sri.Liji J. Vadakkedom, now appearing for the Kumily Grama

Panchayat, submitted that later the building permit was cancelled and

the 4th respondent has demolished the structure in question and a water

tank is constructed in the said place.

5. In fact in the writ petition, an interim order was granted by this

Court on 19.10.2009 staying the operation of Exhibit P1 order, for a

period of four months, which was later extended until further orders.

On 1/3/2010, learned standing counsel for the Grama Panchayat also

submitted that, the panchayat has completed the construction of a

crematorium.

6. Taking into account the developments that have taken place,

I do not find anything surviving to be considered at this stage of the

proceedings, especially due to the fact that, the building constructed by

the 4th respondent, which was standing in the way of construction of

the crematorium due to the distance rule prescribed under the Kerala

Panchayat Raj (Burial And Burning Grounds) Rules, 1998, is no more in

existence. Therefore, I do not think anything remains to be adjudicated

in the writ petition at this distance of time i.e., after a period of 11

years from the filing of the writ petition before this Court. However, I

make it clear that, if anything remains to be considered in respect of

the objectionable construction made by the 4 th respondent vis-a-vis, the

construction of the crematorium, it is for the Panchayat to issue notice

to the 4th respondent and consider the aspects in accordance with law,

after providing sufficient opportunity to the 4th respondent.

Writ petition is disposed of accordingly.

Sd/-

                                           SHAJI P. CHALY,
smv                                            JUDGE




               APPENDIX OF WP(C) 29423/2009
PETITIONER EXHIBITS
Exhibit P1         TRUE COPY OF THE SALE DEED NO 987/06 OF
                   SRO, PEERMADE.
Exhibit P2         TRUE COPY OF THE JUDGMENT DATED 2.2.09
                   IN WPC NO 2253/09 OF THIS HON'BLE COURT
Exhibit P3         TRUE COPY OF THE APPLICATION FILED
                   BEFORE THE 2ND RESPONDENT
Exhibit P4         TRUE COPY OF THE PAPER PUBLICATION DATED
                   24.8.09
Exhibit P5         TRUE COPY OF THE BUILDING PERMIT DATED
                   20.2.09 ISSUED IN FAVOUR OF THE 4TH
                   RESPONDENT
Exhibit P6         TRUE COPY OF THE NOTICE DATED 11.3.09
Exhibit P7         TRUE COPY OF THE FINAL ORDER DATED
                   12.3.09 ISSUED BY THE PANCHAYATH
Exhibit P8         TRUE COPY OF THE REPLY DATED 6.3.09 OF
                   THE OVERSEER
Exhibit P9         TRUE COPY OF THE ORDER DATED 28.4.09 IN
                   APPEAL NO 198/09 OF THE TRIBUNAL FOR
                   LOCAL SELF GOVERNMENT INSTITUTIONS
Exhibit P10        TRUE COPY OF THE APPLICATION DATED

1.5.09 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE PANCHAYATH Exhibit P11 TRUE COPY OF THE ORDER DATED 25.5.09 ISSUED TO THE 4TH RESPONDENT BY THE PETITIONER Exhibit P12 TRUE COPY OF THE ORDER DATED 29.5.09 OF THE PANCHAYATH Exhibit P13 TRUE COPY OF THE REPLY DATED 10.6.09 SUBMITTED BY THE 4TH RESPONDENT Exhibit P14 TRUE COPY OF THE ORDER DATED 6.7.09 OF THE PANCHAYATH Exhibit P15 TRUE COPY OF THE ORDER DATED 27.8.09 IN APPEAL NO 619/09 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS Exhibit P16 TRUE COPY OF THE PHOTOGRAPH SHOWING THE HOUSE OF THE 4TH RESPONDENT Exhibit P17 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE SHED PUT UP BY THE 4TH RESPONDENT

RESPONDENT EXHIBITS

Exhibit R4(A) TRUE COPY OF ORDER DATED 11.5.2009 PASSED BY THE POLLUTION CONTROL BOARD