Kizhuvilam Grama Panchayat vs Mumthas .S.S
2022 Latest Caselaw 6678 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR.JUSTICE N.NAGARESH
      THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
                        WP(C) NO. 18651 OF 2022
PETITIONER

             KIZHUVILAM GRAMA PANCHAYAT
             MUDAPURAM P.O., THIRUVANANTHAPURAM DISTRICT - 695 304,
             REPRESENTED BY ITS SECRETARY.
             BY ADV LATHEESH SEBASTIAN


RESPONDENT

             MUMTHAS .S.S,
             D/O SAFEERA BEEVI, AGED 45 YEARS, S.S.VILLA,
             PARAYATHUKONAM, KIZHUVILAM P.O.,
             THIRUVANANTHAPURAM DISTRICT - 695304.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.18651 OF 2022
                                       2




                             JUDGMENT

Dated this the 9th day of June, 2022

The petitioner, Kizhuvilam Grama Panchayat, is before

this Court aggrieved by Ext.P6 interim order dated 23.05.2022

in I.A No.784 of 2022 in Appeal No.322 of 2022, passed by the

Tribunal for Local Self Government Institutions,

Thiruvananthapuram.

2. The petitioner states that the respondent filed

Appeal No.322 of 2022 before the Tribunal for Local Self

Government Institutions, Thiruvananthapuram and sought a

direction to dispose of an application submitted by the

respondent for Occupancy Certificate for the residential

building constructed by the respondent in Survey No.375/8-1

of Kunthalloor Village in Chirayinkeezhu Taluk. The interim

prayer sought for by the respondent in her application was for

numbering the building provisionally. WP(C) NO.18651 OF 2022

3. The petitioner states that the respondent made

construction in violation of Section 27A(6) of the Kerala

Conservation of Paddy Land and Wetland Act, 2008. This fact

was suppressed from the Tribunal. Without there being an

appropriate prayer, the Tribunal directed the petitioner-Grama

Panchayat to issue Occupancy Certificate to the building

constructed contrary to the Building Permit violating the

provisions of the Kerala Conservation of Paddy Land and

Wetland Act, 2008.

4. The learned counsel for the petitioner urged that the

Tribunal committed grave error in passing Ext.P6 order, while

there was no such prayer in the appeal or interim application

filed by the respondent. The Tribunal exceeded its jurisdiction

in passing Ext.P6 order. The Tribunal ought to have issued

notice to the petitioner and heard the petitioner, before

jumping into any conclusion in favour of the petitioner. By WP(C) NO.18651 OF 2022

Ext.P6 order, the Tribunal has directed the petitioner-Grama

Panchayat to file a compliance report by 14.06.2022. Ext.P6

order of the Tribunal is liable to be interfered with and the

Tribunal shall be directed to grant opportunity of hearing to

the petitioner-Grama Panchayat.

5. I have heard the learned counsel for the petitioner.

6. From the pleadings in the writ petition and the

exhibits produced before this Court, it is seen that the

respondent has filed Appeal No.322 of 2022 before the

Tribunal for Local Self Government Institutions invoking Rules

8 and 15 of the Tribunal for Local Self Government Institutions

Rules, 1999. The respondent was aggrieved by non-issuance

of Occupancy Certificate. The respondent urged in Ext.P4

appeal that as per the proviso to Rule 20(2) of the Kerala

Panchayat Building Rules, 2019, if an application for

Occupancy Certificate along with a completion plan is

submitted by an applicant, the same shall be disposed within WP(C) NO.18651 OF 2022

15 days from the date of receipt. The respondent alleged that

the petitioner-Grama Panchayat is sitting over the application

submitted by the petitioner.

7. The Tribunal on perusal of materials on record

found that the respondent has established a prima facie case.

Accordingly, by Ext.P6 interim order, the petitioner was

directed to issue Occupancy Certificate to the building

constructed as per permit, provisionally.

9. A perusal of Ext.P6 would show that Ext.P6 is only

an interim order making a provisional arrangement. Ext.P6

does not finally conclude the appeal. If the petitioner has a

grievance against Ext.P6 that has been passed without taking

into consideration true facts and without granting an

opportunity of hearing to the respondent in the appeal, the

appropriate remedy available to the petitioner, is to approach

the Tribunal making interim application to vacate the interim

order, which has been allegedly passed without considering WP(C) NO.18651 OF 2022

the true facts. Without availing such remedy, the petitioner

cannot rush to this Court invoking Article 226 of the

Constitution of India.

In the circumstances, the writ petition is dismissed, but

permitting the petitioner to approach the Tribunal for recalling

Ext.P6 interim order. This Court is sure that if such an I.A. is

filed, the Tribunal will indeed consider such application, taking

into consideration the urgency pointed out by the petitioner.

sd/-

N.NAGARESH JUDGE hmh WP(C) NO.18651 OF 2022

APPENDIX OF WP(C) 18651/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ORDER OF THE SECRETARY OF KIZHUVILAM GRAMA PANCHAYAT DATED 28.07.2021.

Exhibit P2 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE SECRETARY OF THE KIZHUVILAM GRAMA PANCHYAT TO THE RESPONDENT DATED 06.08.2021.

Exhibit P3 TRUE COPY OF THE COMPLETION REPORT FOR OCCUPANCY CERTIFICATE TO THE BUILDING CONSTRUCTED BY THE RESPONDENT, ALONG WITH PLAN.

Exhibit P4 TRUE COPY OF THE APPEAL MEMORANDUM IN APPEAL NO.322/2022 OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

Exhibit P5 TRUE COPY OF THE PETITION IN I.A NO.784/2022 IN APPEAL NO.322/2022.

Exhibit P6 TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN I.A. NO.784/2022 IN APPEAL NO.322/2022 DATED 23.05.2022.