Ammad Haji vs The Revenue Divisional Officer
2022 Latest Caselaw 9420 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
      THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 16TH DAY OF AUGUST 2022 / 25TH SRAVANA, 1944
                    WP(C) NO. 21884 OF 2022
PETITIONER/S:

            AMMAD HAJI, AGED 68 YEARS
            S/O. ALIKUTTY HAJI,
            RESIDING AT PADINJARAYIL ELANGADI HOUSE,
            ERAMALA P.O, VATAKARA,
            KOZHIKODE DISTRICT - 673501.
            BY ADV R.K.MURALEEDHARAN
RESPONDENT/S:
    1    THE SUPERINTENDANT OF POLICE (RURAL)
         SUPERINTENDENT OF POLICE OFFICE,
         VATAKARA KOZHIKODE DISTRICT - 673105
    2    THE STATION HOUSE OFFICER,
         EDACHERI POLICE STATION, VATAKARA,
         KOZHIKODE DISTRICT - 673501
    3    PUTHUKULANGARA THAZHEKUNI DAMODARAN,
         P.O ORKKATTERI, KOZHIKODE DISTRICT-673501
    4    PUTHIYEDATHKUNI SASIDARAN P.K,
         SYAMANTHAKAM, P.O ORKKATTERI,
         KOZHIKODE DISTRICT-673501
    5    SURESH BABU P.K,
         S/O. O. P SREEDHARAN,
         PUTHUKULANGARA THAZHEKUNI HOUSE,
         P.O ORKKATTERI, KOZHIKODE DISTRICT-673501
    6    MANOJAN V. K,
         S/O. CHATHU, MADURAPURI HOUSE,
         P.O ORKKATTERI, KOZHIKODE DISTRICT-673501
         BY ADV S.SUJIN
OTHER PRESENT:
         SMT.DEEPA NARAYANAN, SR. GP
     THIS    WRIT   PETITION     (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 16.08.2022, ALONG WITH WP(C).19276/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                         -2-
W.P.(C). Nos. 19276 & 21884 of 2022




              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 16TH DAY OF AUGUST 2022 / 25TH SRAVANA, 1944
                            WP(C) NO. 19276 OF 2022
PETITIONER/S:

               AMMAD HAJI, AGED 68 YEARS
               S/O. ALIKUTTY HAJI, RESIDING AT PADINJARAYIL
               ELANGADI HOUSE, ERAMALA P.O, VATAKARA,
               KOZHIKODE DISTRICT - 673501.
               BY ADV R.K.MURALEEDHARAN


RESPONDENT/S:

      1        THE REVENUE DIVISIONAL OFFICER,
               OFFICE OF THE REVENUE DIVISIONAL OFFICER,
               VATAKARA, KOZHIKODE DISTRICT .
      2        ERAMALA GRAMA PANCHAYATH,
               REPRESENTED BY ITS SECRETARY, P.O ORKKATTERI,
               KOZHIKODE DISTRICT-673501.
      3        THE SECRETARY,
               ERAMALA GRAMA PANCHAYATH, P.O ORKKATTERI,
               KOZHIKODE DISTRICT-673501.
      4        PUTHUKULANGARA THAZHEKUNI DAMODARAN,
               P.O ORKKATTERI, KOZHIKODE DISTRICT-673501.
      5        PUTHIYEDATHKUNI SASIDARAN P.K,
               SYAMANTHAKAM, P.O ORKKATTERI, KOZHIKODE
               DISTRICT-673501.
      6        SURESH BABU P.K,
               S/O. O. P SREEDHARAN, PUTHUKULANGARA THAZHEKUNI
               HOUSE, P.O ORKKATTERI, KOZHIKODE DISTRICT-
               673501.
      7        MANOJAN V. K,
               S/O. CHATHU, MADURAPURI HOUSE, P.O ORKKATTERI,
               KOZHIKODE DISTRICT-673501.
               BY ADV S.SUJIN
OTHER PRESENT:
                                        -3-
W.P.(C). Nos. 19276 & 21884 of 2022




               SMT.DEEPA NARAYANAN, SR. GP



        THIS      WRIT      PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 16.08.2022, ALONG WITH WP(C).21884/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                    -4-
W.P.(C). Nos. 19276 & 21884 of 2022



                         P.V.KUNHIKRISHNAN, J.
                          ======================================================

                   W.P.(C) Nos. 19276 & 21884 of 2022
                       =============================================================

                  Dated this the 16th day of August, 2022

                                       JUDGMENT

These two writ petitions are connected and therefore, I am

disposing of these writ petitions by a common judgment. I will

narrate the facts in WP(C) No.19276 of 2022 first. The prayers

in WP(C) No.19276 of 2022 reads thus:

"i) Issue a writ of certiorari or any other appropriate writ order or direction, quashing Ext. P7 showcause notice dated 21.02.2022 and Ext. P10 communication dated 01.06.2022 issued by the 3rd respondent,

ii) Issue a writ of mandamus or any other appropriate writ order or direction directing the 3 rd respondent to permit the petitioner to continue with the construction in accordance with Ext. P2 permit;

iii) Issue such other writ, orders as this Hon'ble Court may deem fit to grant."

2. Ext.P7 is a show cause notice issued by Eramala

Grama Panchayat alleging certain violation of the building

W.P.(C). Nos. 19276 & 21884 of 2022

rules. The alleged violation is mentioned in paragraph 3 of

Ext.P7, which is extracted hereunder:

"എ.4.7720/21 നമ്പർ കെട്ടിടനിർമ്മാണ പെർമിറ്റ് പ്രകാരം അനുവദിച്ചതിൽ നിന്നും തറനിരപ്പ് 0.30 മീറ്ററിനേക്കാൾ ഉയരത്തിൽ 0.95 മീറ്ററ് വരെ തറയുടെ ഉയരം അനധികൃതമായി നികത്തുകയും പ്ലിന്ത് ബീം നിർമ്മിക്കുകയും ചെയ്തിരിക്കുന്നു. കേരള പഞ്ചായത്ത് രാജ് കെട്ടിടനിർമ്മാണ ചട്ടങ്ങളിലെ വ്യവസ്ഥകൾ ലംഘിച്ചു കൊണ്ടുള്ള മേൽ പ്രവർത്തി നിർത്തിവെക്കേണ്ടതാണ് ."

3. According to the petitioner, he submitted Ext.P8

reply to Ext.P7 notice, in which he assured that he will do the

needful immediately. Thereafter, Ext.P10 is issued by the

Panchayat granting time till 17.06.2022. It is the grievance of

the petitioner that the petitioner is not able to enter into the

property and that is why WP(C) No.21884 of 2022 is filed for

police protection to do the work on the basis of the interim

order passed in WP(C) No.19276 of 2022. When WP(C)

No.19276 of 2022 came up for consideration, this Court passed

an interim order staying Ext.P7. Subsequently this Court on

24.06.2022, passed the following order:-

W.P.(C). Nos. 19276 & 21884 of 2022

"As long as the construction made by the petitioner is strictly in accordance to Ext.P2 building permit, respondents shall not interfere with the construction.

Issue notice to respondents 2 and 3 by speed post."

4. Now, the petitioner submitted that he is not able to

enter into the property to do the needful as stated in Ext.P7.

Aggrieved by the same, the petitioner filed the writ petitions.

5. Heard the counsel for the petitioner and the learned

Senior Counsel Sri.N.N.Sugunapalan, who is instructed by

Adv.S.Sujin, for the contesting respondent. I also heard the

Government Pleader. Even though notice is issued to

respondents 2 and 3, there is no appearance for them. It is true

that service is not complete to respondents 2 and 3. Since the

way in which these writ petitions are going to be disposed of, I

think further notice to respondents 2 and 3 is not necessary. If

they are aggrieved by this judgment, they are free to file a

review petition.

W.P.(C). Nos. 19276 & 21884 of 2022

6. Admittedly, Ext.P7 produced in WP(C) No.19276 of

2022 is a show cause notice, to which the petitioner submitted

Ext.P8 reply. Before doing the needful as directed in Ext.P7,

the Panchayat issued Ext.P10. If that be so, Ext.P10 can be set

aside and the Panchayat can be directed to consider

Ext.P8 reply submitted by the petitioner and allow the petitioner

to do the needful based on Ext.P7 show cause notice. If the

petitioner is doing any work/construction to comply with the

directions in Ext.P7 and if there is any objection from the

contesting respondent, the Police will do the needful to allow

the petitioner to complete the work, as stated in Ext.P7 notice

and as per Ext.P2 building permit.

Therefore, these writ petitions are disposed of in the

following manner:

1. Ext.P10 is set aside.

2. There will be a direction to the 2nd respondent in WP(C) No.19276 of 2022 to consider Ext.P8 reply

W.P.(C). Nos. 19276 & 21884 of 2022

and give sufficient time to the petitioner to do the needful based on Ext.P7 notice. Thereafter, the authorities of the Panchayat will inspect the property with notice to the petitioner and the contesting respondents.

3. Based on the decision taken thereafter, the petitioner is free to construct the building, strictly in accordance to Ext.P2 building permit.

4. If there is any obstruction from the contesting respondents for doing the needful as per Ext.P7 notice, the Police will do the needful to give sufficient protection to the petitioner to do the same as per Ext.P7 notice and Ext.P2 building permit.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). Nos. 19276 & 21884 of 2022

APPENDIX OF WP(C) 19276/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER F NO. 425/ 2019 DATED 10.02.2020 ISSUED BY THE 1ST RESPONDENT.

Exhibit P2 A TRUE COPY OF THE BUILDING PERMIT NO.

A4-B4(308295)/2021 ISSUED BY THE 3RD RESPONDENT Exhibit P2 A A TRUE COPY OF THE SITE PLAN DATED 07.12.2021 ISSUED BY THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF THE PHOTOGRAPH OF THE CONSTRUCTION COMMENCED BY THE PETITIONER.

Exhibit P4 A TRUE COPY OF THE COMPLAINT FILED BY RESPONDENTS 4 TO 6 DATED 14.02.2022 RECEIVED UNDER RTI ACT.

Exhibit P5 A TRUE COPY OF THE REPORT OF THE OVERSEER RECEIVED UNDER THE RTI ACT DATED 17.02.2022.

Exhibit P6 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 21.02.2022 BEFORE THE SHO, EDACHERI POLICE STATION AND ACKNOWLEDGMENT RECEIVED Exhibit P7 A TRUE COPY OF THE PROVISIONAL ORDER NO. A4-1865/22 DATED 21.02.2022 OF THE 3RD RESPONDENT TO THE 1ST RESPONDENT OBTAINED UNDER THE RTI ACT.

Exhibit P8 A TRUE COPY OF THE REPLY TO EXT. P7 SUBMITTED BY PETITIONER AND ISMAIL. Exhibit P9 A TRUE COPY OF THE REQUEST SUBMITTED BEFORE THE 3RD RESPONDENT DATED 17.05.2022.

Exhibit P10 A TRUE COPY OF THE COMMUNICATION NO.

A4-2739/22 DATED 01.06.2022 BY THE 3RD RESPONDENT.

RESPONDENT EXHIBITS Exhibit R5 A A PHOTOGRAPHS SHOWING THE HEAP OF SOIL IN THE PROPERTY Exhibit R5 B A PHOTOGRAPH SHOWING THE HEAP OF SOIL IN THE PROPERTY

W.P.(C). Nos. 19276 & 21884 of 2022

APPENDIX OF WP(C) 21884/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER F NO.

425/2019 DATED 10.02.2020 ISSUED BY THE RDO, VATAKARA Exhibit P2 A TRUE COPY OF THE BUILDING PERMIT NO.

A4-B4(308295)/2021 ISSUED BY THE ERAMALA GRAMA PANCHAYATH Exhibit P2(A) A TRUE COPY OF THE SITE PLAN DATED 07.12.2021 ISSUED BY THE ERAMALA GRAMA PANCHAYATH Exhibit P3 TRUE COPY OF THE PHOTOGRAPH OF THE CONSTRUCTION COMMENCED BY THE PETITIONER Exhibit P4 A TRUE COPY OF THE COMPLAINT FILED BY RESPONDENTS 3 TO 5 DATED 14.02.2022 RECEIVED UNDER RTI ACT Exhibit P5 A TRUE COPY OF THE REPORT OF THE OVERSEER RECEIVED UNDER THE RTI ACT DATED 17.02.2022 Exhibit P6 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 21.02.2022 BEFORE THE 2ND RESPONDENT AND ACKNOWLEDGMENT RECEIVED Exhibit P7 A TRUE COPY OF THE PROVISIONAL ORDER NO. A4-1865/22 DATED 21.02.2022 OF THE ERAMALA GRAMA PANCHAYATH Exhibit P8 A TRUE COPY OF THE REPLY TO EXT. P7 SUBMITTED BY PETITIONER AND ISMAIL Exhibit P9 A TRUE COPY OF THE REQUEST SUBMITTED BEFORE THE PANCHAYATH DATED 17.05.2022 Exhibit P10 A TRUE COPY OF THE COMMUNICATION NO.

A4-2739/22 DATED 01.06.2022 BY THE ERAMALA GRAMA PANCHAYATH Exhibit P11 A TRUE COPY OF THE ORDER DATED 14.06.2022 IN WP(C) NO. 19276/2022 Exhibit P12 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 3 TO 6 EXCLUDING THE EXHIBITS DATED 23.06.2022

W.P.(C). Nos. 19276 & 21884 of 2022

Exhibit P13 A TRUE COPY OF THE ORDER IN WP(C) NO.

19276/2022 DATED 24.06.2022 Exhibit P14 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 30.06.2022 BEFORE THE 2ND RESPONDENT Exhibit P15 A TRUE COPY OF THE RECEIPT DATED 01.07.2022 ISSUED BY THE 2ND RESPONDENT