Muthu Bevi vs Thachanattukara Grama Panchayat
2021 Latest Caselaw 19250 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943

                           WP(C) NO. 28443 OF 2011

PETITIONER/S:

     1        MUTHU BEVI
              D/O. SAIDU ALI AKBAR THANGAL,, KOCHIYIL MANATHALA HOUSE,
              NATTUKAL POST,, MANNARGHAT TALUK.
     2        ABDULLA KOYA THANGALA AGED 47 YEARS
              S/O.IMBICHI KOYA THANGAL,, KOCHIYIL MANATHALA HOUSE,
              NATTUKAL POST,, MANNARGHAT TALUK.
              BY ADV SRI.U.BALAGANGADHARAN


RESPONDENT/S:

     1        THACHANATTUKARA GRAMA PANCHAYAT
              REPRESENTED BY ITS SECRETARY,, THACHANATTUKARA,
              MANNARGHAT, PALAKKAD-678 582.
     2        THE SECRETARY
              THACHANATTUKARA GRAMA PANCHAYATH,, THACHANATTUKARA,
              MANNARGHAT, PALAKKAD-678 582.
     3        MUSTHAFA AGED 38 YEARS
              S/O. MAMMOOTTY, AKKARA VEEDU,, NATTUKAT POST,,
              THACHANATTUKARA, MANNARGHAT, PALAKKAD-678 582.
     4        MAMMOTTY HAJI FATHER OF MUSTHAFA
              AKKARA VEEDU, NATTUKAL POST,, THACHANATTUKARA,
              MANNARGHAT, PALAKKAD-678 582.
              BY ADVS.
              SRI.K.N.ABHILASH
              SRI.P.JAYARAM
              SRI.SUNIL NAIR PALAKKAT



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 28443/2011                       :2:




            Dated this the 14th day of September, 2021.

                              JUDGMENT

This writ petition is filed by the petitioners seeking the following

reliefs:

1. Issue a writ of mandamus or other appropriate writ, order or direction to respondents 1 and 2 to restrain the third respondent from restoring to illegal construction in the interest of justice.

2. Issue a writ of mandamus or other appropriate writ, order or direction to respondent Nos. 1 and 2 to consider and pass orders on Ext. P4 after affording reasonable opportunity of being heard to the petitioners and after holding a fact finding roving enquiry.

2. The petitioners are residents of Thachanattukara Grama

Panchayat and are the owners of properties covered by Exts.P1 and

P2 documents. According to the petitioners, the third respondent

started construction of a building on his property in total violation of

the Kerala Panchayat Building Rules, in as much as leaving no set back

on the sides of the building. Therefore, it is submitted that there is

clear violation of the Kerala Panchayat Building Rules, 2011 and even

though the Secretary of the Grama Panchayat has sufficient

knowledge with respect to the construction carried out, he is keeping

silent and therefore, the petitioners have submitted Ext. P4 complaint

to the Secretary of the Grama Panchayat on 01.10.2011. However, in

spite of the same, no action was initiated, which persuaded the

petitioners to approach this Court by filing the writ petition.

3. The second respondent has filed a counter affidavit stating

that when the complaint was received on 07.10.2011, Ext. R2(a)

memo dated 10.10.2011 was issued to the third respondent and action

is being persuaded. It is also pointed out that the building constructed

is in an area having an extent of 1.4 cents and the total built up area

of the building is only 18.50 sq. meters. That apart, it is submitted

that the matter was being enquired into and as a preliminary measure,

Ext. R1(a) memo was issued. However, if the building is found to have

been built up violative of the Building Rules, action shall be taken

against the third respondent.

4. The writ petition was pending before this Court from

24.10.2011 onwards without securing any interim orders. The

discussion of facts made above would make it clear that the complaint

filed by the petitioners before the Secretary is against the illegal

construction carried out by the third respondent; however, no action

was initiated.

5. The counter affidavit of the Secretary shows that immediately on

receipt of the complaint, a memo was issued and the Secretary has

undertaken that if the building is constructed illegally, action would be

taken against the third respondent. Anyhow, going through the facts

and circumstances, it is categoric and clear that the subject issue

raised by the petitioners are depending on various factual

circumstances and it cannot be concluded by this Court exercising the

power under Article 226 of the Constitution of India, the proceedings

being summary in nature. Further, one cannot also visualize that after

a lapse of 10 years, anything is pending consideration before the

Secretary of the Grama Panchayat.

6. Therefore, the writ petition is disposed of directing the

Secretary to consider the issue, if any, pending by and between the

parties on the basis of Ext. P4 complaint made by the petitioner.

However, I make it clear that if the proceedings have attained finality,

it shall not be reopened under any circumstances.

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 28443/2011

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF GIFT DEED NO. 4396/10 OF SRO MANNARGHAT.

Exhibit P2 TRUE COPY OF PARTITION DEED NO. 5121/05 OF SRO MANNARGHAT.

Exhibit P3 TRUE SKETCH OF THE PROPERTIES OF PETITIONERS AND 3RD RESPONDENT.

Exhibit P4 TRUE COPY OF COMPLAINT SUBMITTED BY THE PETITIONERS TO THE SECOND RESPONDENT ON 1.10.2011.

RESPONDENT EXHIBITS Exhibit R2(a) TRUE COPY OF MEMO DATED 10.10.2011 ISSUED BY 2ND RESPONDENT.

Exhibit R4 (a) TRUE COPY OF THE ORDER DATED 22.10.2011 IN I.A.

NO. 698/2011 IN O.S. NO. 115/2011 BEFORE THE MUNSIFF MAGISTRATE COURT, MANNARKKAD.

Exhibit R4 (b) TRUE COPY OF THE RELEASE DEED NO. 6261/2010 OF THE S.R.O. MANNARKKAD EXECUTED BY MOHAMMED SIDHIQUE THE BROTHER OF THE IST PETITIONER.

/True Copy/

PS To Judge.

rv