Kerala High Court
Mr.Thayyullathil Rajan vs Muhammed Shihab on 22 December, 2022
R.P.Nos.186 & 284/22
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944
RP NO. 284 OF 2022
AGAINST THE JUDGMENT in WP(C) 25558/2021
REVIEW PETITIONERS:
WESTERN GHATS PROTECTION COUNCIL
(REG NO.WYD/CA/137/2019) BUILDING NO.419, KALPETTA
P O, WYNAD DISTRICT-673121, REPRESENTED BY ITS
PRESIDENT, VARGHESE VATTEKATTIL, W/O VARKEY,
(RESIDING AT VATTEKATTIL HOUSE, KRISHNAGIRI P O,
WAYANAD DISTRICT, PIN-673591.
BY ADVS.
K.C.SANTHOSHKUMAR
K.K.CHANDRALEKHA
RESPONDENTS:
1 MUHAMMED SHIHAB
AGED 36 YEARS
S/O SHAHUL HAMEED, ERACHAMVEETTIL, VENKIDANGU,
MANJOORA P O, WAYANAD DISTRICT-673575.
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL
SELF GOVERNMENT DEPARTMENT.
3 THE DISTRICT DISASTER MANAGEMENT AUTHORITY,
WAYANAD, REPRESENTED BY ITS CHAIRMAN, (THE
DISTRICT COLLECTOR, WAYANAD), COLLECTORATE,
WAYANAD-673122.
R.P.Nos.186 & 284/22
2
4 THARIODE GRAMA PANCHAYATH
KAVUMANNAM P O, WAYANAD-673121, REPRESENTED BY ITS
SECRETARY.
5 THE SECRETARY
THARIODE GRAMA PANCHAYATH, KAVUMANNAM P O,
WAYANAD-673121.
BY ADVS.
JAYASREE K.P.
JOHN JOSEPH
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
16.11.2022, ALONG WITH RP.186/2022, THE COURT ON 22.12.2022
DELIVERED THE FOLLOWING:
R.P.Nos.186 & 284/22
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944
RP NO. 186 OF 2022
REVIEW PETITIONER:
MR.THAYYULLATHIL RAJAN,
AGED 67 YEARS
S/O.RAMAKURUP, AGED 67 YEARS,
SHIVATHEERTHAM, VELLIKULANGARA,
ORKATERI P.O, VADAKARA TALUK, PIN - 673 501
NOW IN UAE, REPRESENTED BY THE POWER OF
ATTORNEY,MR.BALAKRISHNAN P.K, S/O.NARAYANA KURUP,
AGED 66 YEARS,DEVI NILAYAM, VALLIKAD,MUTTUNGAL
POST,
VADAKARA TALUK,
PIN - 673106
BY ADVS.
P.MARTIN JOSE
P.PRIJITH
THOMAS P.KURUVILLA
AJAY BEN JOSE
MANJUNATH MENON
SACHIN JACOB AMBAT
R.GITHESH
ANNA LINDA V.J
HARIKRISHNAN S.
RESPONDENTS:
1 MUHAMMED SHIHAB
AGED 36 YEARS
S/O. SHAHUL HAMEED, ERACHAMVEETTIL,
VENKIDANGU, MANJOORA P.O.
WAYANAD DISTRICT
PIN - 673575.
R.P.Nos.186 & 284/22
4
2 STATE OF KERALA
REPRESENTED BY THE
SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
PIN - 695001
3 THE DISTRICT DISASTER MANAGEMENT AUTHORITY
WAYANAD, REPRESENTED BY ITS CHAIRMAN
(THE DISTRICT COLLECTOR, WAYANAD),
COLLECTORATE, WAYANAD
PIN - 673122
4 THARIYODE GRAMA PANCHAYATH
KAVUMANNAM P.O., WAYANAD
REPRESENTED BY ITS SECRETARY.
PIN - 673121
5 THE SECRETARY
THARIYODE GRAMA PANCHAYATH,
KAVUMANNAM P.O.,WAYANAD
PIN - 673121.
BY ADVS.
K.V.WINSTON
JAYASREE K.P.
JACOB SEBASTIAN
JOHN JOSEPH
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
16.11.2022, ALONG WITH RP.284/2022, THE COURT ON 22.12.2022
DELIVERED THE FOLLOWING:
R.P.Nos.186 & 284/22
5
ANU SIVARAMAN, J.
= = = = = = = = = = = = = = =
R.P.Nos.186 & 284 of 2022
in
W.P.(c).No.25558 of 2021
= = = = = = = = = = = = = = = =
Dated this the 22nd day of December 2022
ORDER
1. These review petitions with leave were preferred by third
parties to the judgment seeking a review of the judgment. The
1st respondent in the review petitions had approached this
Court by filing W.P.(C).No.25558 of 2021 challenging Exhibit
P3 and P4 communications issued by the Thariode Grama
Panchayat requiring the petitioner to approach the Disaster
Management authority and get a clarification for the purpose
of issuance of occupancy certificates. The specific case of the
writ petitioner was that he had been issued with Exhibit P1
permit for construction of a Special Residential Building and
that Exhibit P2 proceedings were issued by the Disaster
Management Committee providing that permit for
R.P.Nos.186 & 284/22
construction of building having a height more than 10 ms and
requires clearance from the authority. It is submitted that the
petitioner had completed the construction as per Exhibit P1
building permit and had approached the Panchayat for
occupancy certificate, but the same had been returned stating
that clearance has to be obtained from the Disaster
Management Committee. The writ petitioner contended that
the height of the building is less than 10ms and therefore no
clearance is required and that occupancy certificate is liable to
be issued by the Disaster Management Authority. The
Panchayat submitted, on instructions, that a site inspection
was conducted and it was found that the height of the building
was only 9.5ms. Accepting the said contentions, the writ
petition was disposed of directing that the application
submitted by the petitioner can be appropriately considered
by the 4th respondent without awaiting the orders of the 2 nd
respondent.
2. The petitioner in R.P.No.186/2022 contends that Exhibit P1
permit produced by the writ petitioner would show that it was
R.P.Nos.186 & 284/22
granted jointly in the names of the writ petitioner and the
review petitioner and that, therefore, the construction in
question was being carried out in the property jointly owned
by the writ petitioner and the review petitioner. It is further
contended that the review petitioner had purchased land
having an extent of 1.21 Ares in Survey No.254/4 by Annexure
C document and another extent of 2.20 Ares of land by
Annexure D. It is submitted that the property stands mutated
in the name of the review petitioner and he is paying tax for
the same. Thereafter, an agreement was entered into between
the parties for the construction of residential villas in the
petitioner's property. However, thereafter, the 1st respondent
advertised a project called 'Kenza Wellness Hospital' in the
property including the land of the review petitioner and
started construction without informing the co-owner. It is
contended that a joint application for building permit as well
as for regularisation of the construction had been made by the
1st respondent forging the signature of the review petitioner
and that a crime has been registered with regard to the said
allegation as evidenced by Annexure J FIR. It is stated that
R.P.Nos.186 & 284/22
O.S.No.15/2021 has also been filed before the Sub Court,
Bathery for realisation of an amount of Rs.48,00,000/- with
interest and costs. It is contended that the entire exercise is
fraudulent and vitiated since Exhibit P1 itself would show that
the building permit was procured in the name of the petitioner
as co-owner and that the petitioner was not informed about
any of the proceedings and about the filing of the writ petition.
3. R.P.No.284/2022 is filed by the Western Ghats Protection
Council contending that a Division Bench of this Court had
already directed the Disaster Management Authority to clarify
the steps taken on the report of the Expert Committee which
had found various violations in the construction being carried
out by the 1st respondent/writ petitioner and that the writ
petition filed and orders obtained without disclosing the same
is an abuse of process of court.
4. Detailed counter affidavit has been placed on record by
respondents 4 and 5. Several documents have been produced
to show that there is no error vitiating the judgment which
requires a review.
R.P.Nos.186 & 284/22
5. I have considered the contentions advanced. The review
petitioner in R.P.No.284/2022 had approached this Court filing
W.P.(C).No.29518 of 2021 as a Public Interest Litigation with
the 1st respondent being arrayed as the 25 th respondent
therein. The contention was that the construction was being
carried out in the Thariyodu Grama Panchayat violating the
directions of the District Disaster Management Authority and
that money laundering as well as tax evasion was rampant in
the dealings of the 25th respondent. The said writ petition was
disposed of by judgment dated 23.3.2022. All the contentions
of the parties were considered in detail and it was ultimately
held as follows:-
"43. We are also of the clear opinion that the construction of
buildings in a Panchayat area is guided by the provisions of the
Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat Building
Rules, 2011, and later, the new Act, the Kerala Panchayat Building
Rules, 2019.
44. Apparently the permits are issued to the party respondent,
namely the 25th respondent, prior to the introduction of the Kerala
Panchayat Building Rules, 2019.
R.P.Nos.186 & 284/22
45. Therefore if construction of the building is completed on the
basis of the permits and the approved plan granted by the
Secretary of the Grama Panchayat, necessarily, the proceedings
have to culminate by processing applications and documents filed
by the permit holder seeking occupancy certificates and building
numbers, which are stated to be pending before the Secretary of
the Grama Panchayat, and it is for the said authority to take
appropriate decision after conducting due enquiries.
46. Therefore, since the Secretary is vested with ample
powers to conduct due enquiries and find out as to whether the
construction is carried out in accordance with the approved plan,
building permit and in accordance with the relevant rules, the
challenge in regard to legality of the constructions in question is
nothing but a premature one and accordingly no interference can
be made at this stage of the proceedings.
47. Taking into account the factual and legal circumstances
pointed out above, we have no hesitation to hold that the
petitioner has failed to make out any case for granting the reliefs
as are sought for in the writ petition, in a proceeding under article
226 of the Constitution of India.
48. Therefore the writ petition is dismissed, however we
make it clear that the Secretary of the Grama Panchayat as well as
the District Disaster Management Authority, Wayanad will be at
liberty to conduct due inspection and enquiries under the
prevailing laws for the purpose, in order to find out as to whether
the constructions are carried out in accordance with law."
R.P.Nos.186 & 284/22
The contentions now raised in these review petitions also
have been addressed in the said judgment.
6. With regard to the contention of the petitioner in
R.P.No.186/2022 also, it appears that the dispute between
the parties is largely monetary in nature. Apparently Exhibit
P1 permit is one issued in the name of the writ petitioner and
the review petitioner in R.P.No.186/2022. The contention of
the review petitioner is that his signature has been affixed
fraudulently by the writ petitioner in the applications for
building permit as well as those for regularisation of the
constructions made. It is not disputed that a criminal case
with regard to the falsification as well as the civil case for
return of money are pending between the parties. If that be
so, the contentions raised now in the review petitions,
according to me, are matters which have to be agitated
before the appropriate authorities in the pending disputes
and it is only when a decision is taken on the same that the
veracity of the contentions raised would be clear. In case the
review petitioner has a case that the issuance of the building
R.P.Nos.186 & 284/22
permit is vitiated in any way, the said contention have to be
urged in appropriate proceedings. The direction in the
judgment under review was only for a consideration of the
application for occupancy certificate without reference to the
contention that the building in question has a height of more
than 10 ms since the Panchayat had specifically stated before
this Court that the height of the building is only 9.5 ms. In
these review petitions also there is no contention that the
building has a height of more than 10 ms. In case the
petitioner in R.P.No.284/2022 has any contention with regard
to the application submitted for occupancy certificate, it is
for him to raise the same appropriately before the Panchayat,
since there is no specific direction issued to the Panchayat
by this Court, there is no requirement for any review of the
judgment.
7. It cannot be disputed that the writ petitioner was one of the
co-owners of the property and that he was not a stranger to
the proceedings so as not to have any right to approach this
Court for issuance of an occupancy certificate on the basis of
R.P.Nos.186 & 284/22
a building permit granted to him even if it be as a co-owner
of the property. The review petitioners have no case that the
building permit has been cancelled or recalled. In the
factual situation, I am of the opinion that there is no merit in
the review petition and that there is no requirement to
review the judgment in the limited nature of the reliefs
granted. Review petitions fail and the same are accordingly
dismissed.
sd/-
Anu Sivaraman, Judge
sj
R.P.Nos.186 & 284/22
APPENDIX OF RP 186/2022
PETITIONER ANNEXURES
Annexure A TRUE COPY OF BROCHURE OF THE PROPOSED
CONSTRUCTION
Annexure B TRUE COPY OF BROCHURE WITH CINE ARTIST
MAMOOTTY WITH 1ST RESPONDENT
Annexure C TRUE COPY OF DOCUMENT NO.216/2016
Annexure D TRUE COPY OF DOCUMENT NO.217/2016
Annexure E TRUE COPY OF BASIC TAX PAID RECEIPT
DATED 29-10-2019
Annexure F TRUE COPY OF RECEIPTS ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER
Annexure G TRUE COPY OF APPLICATION DATED 20-06-
2019 FOR BUILDING PERMIT SUBMITTED BY
THE 1ST RESPONDENT BEFORE THE SECRETARY,
THARIYODE GRAMA PANCHAYAT
Annexure H TRUE COPY OF JOINT APPLICATION DATED 03-
07-2019 SHOWING THE NAME OF THE
PETITIONER SUBMITTED BY THE BY THE 1ST
RESPONDENT BEFORE THE PANCHAYAT
Annexure I TRUE COPY OF APPLICATION SUBMITTED BY
THE 1ST RESPONDENT FOR REGULARISATION OF
THE CONSTRUCTION BEFORE THE PANCHAYAT
WITHOUT ANY DATE
Annexure J TRUE COPY OF FIR IN CRIME NO.498 OF 2021
OF PADINJARETHARA POLICE STATION
R.P.Nos.186 & 284/22
Annexure K TRUE COPY OF RELEVANT PAGES OF THE
PASSPORT OF THE PETITIONER CONTAINING
HIS SIGNATURE
RESPONDENT ANNEXURES
Annexure R1(a) A true copy of the plaint dated 10.2.21
in os 15/21 of sub court sulthan bathery
Annexure R1(b) Photographs of villa cum resort project
Annexure R1(c) A true copy of the development permit
dated 3.3.2018
Annexure R1(d) A true copy of the building permit dated
8.7.2018
Annexure R1(e) A true copy of the application for
regularisation dated 13.12.21
Annexure R1(f) True copy of the property tax paid dated
30.12.21 in respect of the building
number 135/F
Annexure R1(g) True copy of the property tax paid dated
30.12.21 in respect of the building
number 135/G
Annexure R1(h) True copy of the property tax paid dated
30.12.21 in respect of the building
number 135/H
Annexure R1(i) True copy of the ownership certificate
dated 30.12.21 in respect of the
building number 135/F
Annexure R1(J) True copy of the ownership certificate
dated 30.12.21 in respect of the
building number 135/G
R.P.Nos.186 & 284/22
Annexure R1(k) True copy of the ownership certificate
dated 30.12.21 in respect of the
building number 135/H
R.P.Nos.186 & 284/22
APPENDIX OF RP 284/2022
PETITIONER ANNEXURES
Annexure A TRUE COPY OF THE LETTER DATED 06.02.2021
MADE AVAILABLE TO THE REVIEW PETITIONER
UNDER THE PROVISIONS OF RIGHT TO
INFORMATION ACT.
Annexure B TRUE COPY OF THE COMMUNICATION DATED
12.10.2021 ISSUED BY THE CHAIRMAN OF
DISTRICT DISASTER MANAGEMENT AUTHORITY,
WAYANAD TO THE DISTRICT COLLECTOR,
WAYANAD.
Annexure C TRUE COPY OF THE COMMUNICATION DATED
12.11.2021 ISSUED BY THE CHAIRMAN OF
DISTRICT DISASTER MANAGEMENT AUTHORITY,
WAYANAD TO THE SECRETARY , THARIODE
PANCHAYATH.
Annexure D TRUE COPY OF THE EXPERT COMMITTEE REPORT
DATED 28.10.2021.
Annexure E TRUE COPY OF THE FIRST INFORMATION
REPORT DATED 16.11.2021 IN CRIME BEARING
NO.498/2021 OF PADINHARETHARA POLICE
STATION.
Annexure F TRUE COPY OF THE LAWYER NOTICE DATED
18.11.2021 ISSUED TO THE 1ST AND 5TH
RESPONDENTS.
Annexure G TRUE COPY OF THE COMMUNICATION DATED
22.11.20221 ISSUED BY THE TOWN PLANNER,
WAYANAD DISTRICT TO THE REVIEW
PETITIONER.
R.P.Nos.186 & 284/22
Annexure H TRUE COPY OF THE PHOTOGRAPHS SHOWING THE
ILLEGAL CONSTRUCTION AND THE SUBSEQUENT
ATTEMPT ON THE PART OF THE 1ST
RESPONDENT TO COVER UP ONE OF THE FLOOR
BY DEPOSITING SAND AND MUD.
RESPONDENT ANNEXURES
Annexure R5(a) A true copy of the order dated
26.11.2021 of Sessions Court, Kalpetta,
Wayanad in Crl. MC No.728 of 2021 in
respect of Crime No.498/2021 of
Padinjarathara Police Station
Annexure R5(b) A true copy of the judgment dated
23.03.2022 passed by the Division Bench
of this Honourable Court in WPC No 29518
of 2021
Annexure R5(c) A true copy of the proceedings of the 3rd
respondent dated 10.08.2016
Annexure R5(d) A true copy of the relevant page of the
file notes maintained by the 4th
respondent Panchayat showing the note
dated 27.12.2021 of the Assistant
Engineer, LSGD
Annexure R5(e) A true copy of the letter dated
21.12.2021 issued by the 5th respondent
to the 1st respondent
True copy
PS to Judge
