Kerala High Court
Laila Beevi vs Arpookkara Grama Panchayath on 28 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 27571 OF 2021
PETITIONER:
LAILA BEEVI
AGED 61 YEARS
W/O.SOMARAJAN, KALLURAKANDANTHIL HOUSE, KARIPPOTHATTU,
ARPOOKKARA, KOTTAYAM 686 008
BY ADVS.
K.B.GANGESH
ATHIRA A.MENON
RESPONDENTS:
1 ARPOOKKARA GRAMA PANCHAYATH
REP.BY ITS SECRETARY, VELLONNI P.O., KOTTAYAM 686 008
2 SECRETARY
ARPOOKKARA GRAMA PANCHAYATH, VELLONNI P.O., KOTTAYAM
686 008
3 ARIFA BEEVI
W/O.MUSTAFFA, PUTHUPALLIKKALAYILAYA PUTHANPARAMBIL,
ARPOOKKARA, KOTTAYAM 686 008
BY ADV BLAZE K.JOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.05.2024, ALONG WITH WP(C).28006/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) Nos.27571/2021 & 28006/2017
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 28006 OF 2017
PETITIONER:
ARIFA BEEVI
AGED 50 YEARS
W/O.MUSTHAFA, RESIDING AT PUTHUPPALLIKKALAYILA
PUTHENPARAMBIL, ARPOOKKARA KARA, ARPOORKKARA
VILLLAGE, ARPOOKKARA EAT PO, KOTTAYAM DISTRICT
BY ADVS.
SRI.K.SHAJ
SRI.RENJIT GEORGE
RESPONDENTS:
1 ARPOOKKARA PANCHAYAT
REPRESENTED BY ITS SECRETARY, VELLONNI PO,
KOTTAYAM DISTRICT, 686008
2 THE SECRETARY
ARPOOKKARA PANCHAYAT, VELLONNI PO, KOTTAYAM
DISTRICT, 686008
3 ARPOOKKARA GRAMA PANCHAYAT COMMITTEE
REPRESENTED BY ITS PRESIDENT, VELLONNI PO,
KOTTAYAM DISTRICT, 686008
4 LAILA BEEVI
W/O.SOMARAJAN, RESIDING AT KALLUKANDATHIL
HOUSE, KARIPPOOTHATTEE KARA, ARPOOKKARA 686008
BY ADVS.
SRI. BLAZE K.JOSE, SC, ARPOOKARA GRAMA
PANCHAYAT
SRI.SANTHAN V.NAIR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 28.05.2024, ALONG WITH WP(C).27571/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.27571/2021 & 28006/2017
3
JUDGMENT
1. Since the issue involved in both these writ petitions
arise from the very same subject matter, I dispose of
both these writ petitions by a common judgment. The
parties and documents are referred in accordance with
the status in WP© No.28006/2017.
2. The dispute is between two sisters - the petitioner
and the 4th respondent who are having neighboring
properties. The petitioner filed WP© No.28006/2017 on
23/08/2017 with the averments that she constructed
ground floor in the property allotted to her as per Ext.P1
decree on the basis of Building Permit dated 26/03/2013;
that she constructed first floor over the existing ground
floor without Building Permit; that that the 2 nd
respondent issued Ext.P2 Notice dated 01/02/2017 stating
that the Engineering Department of the 1st respondent has
WP(C) Nos.27571/2021 & 28006/2017
made an inspection and found that the construction was
done without any Building Permit and in violation of the
Panchayath Building Rule, 2011 and directed her to file
Objection within three days, failing which action will be
taken under Section 235W of the Kerala Panchayath Raj
Act; that thereafter, the 2nd respondent issued Ext.P3
order directing to demolish the construction invoking his
power under Section 235W of the Kerala Panchayath Raj
Act; that she had submitted Ext.P4 Regularisation
Application which was received as per Ext.P5 Receipt
dated 19/07/2017 and with the prayer direct the
respondents 1 to 3 to keep in abeyance Ext.P3 till the
consideration of Ext.P4 Regularisation Application by the
2nd respondent.
3. This Court had earlier disposed the writ petition as
per judgment dated 27/07/2018 directing the 2 nd
WP(C) Nos.27571/2021 & 28006/2017
respondent to consider Ext.P4 Regularisation Application
submitted by the petitioner in terms of the Notification
issued by the State Government in the year 2018 and
attain finality to the same at the earliest at any time
within the period of two month from the date of receipt
of a copy of the judgment and directing to keep in
abeyance the coercive action as per Ext.P3 till the
disposal of Ext.P4 Regularisation Application. Later the
4th respondent filed R.P No.724/2018, stating that Ext.P4
Regularisation Application was already disposed on
22/08/5017 and hence the judgment dated 27/07/2018 is
liable to be recalled and this Court as per Order dated
01/08/2018 in R.P No.724/2018 recalled the judgment
and posted the case for further consideration.
4. WP(C) No. 27571/2021 is filed by the 4 th respondent
on 02/12/2021 seeking direction to implement Ext.P3
WP(C) Nos.27571/2021 & 28006/2017
Order and also Ext.P7 produced therein which is a
Communication dated 22/08/2017 addressed to the
petitioner informing the Decision No.21 of the
Panchayath Committee that her Regularisation
Application will be considered only after demolishing the
unauthorized construction in violation of the Rules.
5. In W.P.(C) No.28006/2017, the 4th respondent alone
filed a Counter Affidavit dated 30/05/2018. In W.P.(C)
No.27571/2021, none of the respondents filed Counter
Affidavit.
6. Heard learned counsel for the petitioner and the
respondents.
7. The learned counsel for the petitioner submitted that
Ext.P7 order produced in WP(C) No.27571/2021 is not an
order passed on his Regularisation Application in
accordance with law particularly Rules 7 & 135 of the
WP(C) Nos.27571/2021 & 28006/2017
Kerala Panchayath Building Rules, 2011. Learned Counsel
for the 4th respondent pointed out that the said Order is
not challenged by the petitioner. It is true that though
Ext.P7 is dated 22/08/2017 and the writ petition of the
petitioner has been remaining in this court since 2017,
she did not even opt amend the writ petition
incorporating the challenge against Ext.P7.
8. Taking note of the fact that dispute is between two
sisters, in order to render the complete justice in the
matter, I am considering the legality of Ext.P7 even
though it is not challenged by the petitioner. Ext.P7 is
not an Order disposing the Regularisation Application . It
is only a communication of the decision of the
Panchayath that the Regularisation Application will be
considered after demolishing the unauthorized
construction in violation of the Rules. The Panchayath
WP(C) Nos.27571/2021 & 28006/2017
could have straight away dismissed the Regularisation
Application, but Panchayath has shown indulgence to
consider the Regularisation Application after demolition
of the unauthorized construction madein violation of the
Rules. Though Ext.P7 Order is beneficial to the
petitioner, it appears that the petitioner did not avail
such benefit.
9. The learned counsel for the petitioner submits that
the construction is not in violation of the Building Rules
and the petitioner is ready to demolish that the part of
her construction in violation of the Building Rules, if any
found in an inspection by the 2nd respondent with notice
to her.
10. In view of the specific submission of the petitioner, I
dispose of these writ petitions
WP(C) Nos.27571/2021 & 28006/2017
a. setting aside Ext.P3 order
b. directing the 2nd respondent or his competent
subordinates to conduct an inspection of the construction
of the first floor made by the petitioner within one
month from the date of receipt of copy of this judgment
with notice to the petitioner and the 4 th respondent and
ascertain whether any part of the same is in violation of
the Kerala Panchayath Building Rules
c. in case there is such violation, directing the 2 nd
respondent to pass an order directing the petitioner to
demolish such unauthorized construction made in
violation of the Kerala Panchayath Building Rules within
a period of one month.
d. In case the petitioner demolishes such unauthorized
part of the construction, the 2nd respondent shall consider
Ext.P4 Regularisation Application in accordance with law
WP(C) Nos.27571/2021 & 28006/2017
within a period of three months from the date of expiry
the said period one month.
e. In case the petitioner does not demolish such
unauthorized part of the construction within the said
period of one month, the entire construction of the first
floor of the petitioner shall be treated as unauthorized
and the 2nd respondent shall see that the same is
demolished within a period of two months.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
sms
WP(C) Nos.27571/2021 & 28006/2017
APPENDIX OF WP(C) 28006/2017
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE FINAL DECREE DATED
05.06.2007 IN OS.NO. 15/2000 OF
ETTUMANOOR MUNSIFF COURT
EXHIBIT P2 TRUE COPY OF THE NOTICE NO. A5-
18033/16 DATED 01.02.2017 ISSUED BY
THE SECOND RESPONDENT TO THE
PETITIONER
EXHIBIT P3 TRUE COPY OF THE NOTICE NO. A5-
18033/16 DATED 01.07.2017 ISSUED BY
THE SECOND RESPONDENT TO THE
PETITIONER
EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR
REGULARIZATION SUBMITTED BY THE
PETITIONER BEFORE THE SECOND
RESPONDENT
EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED
19.07.2017 ISSUED BY THE SECOND
RESPONDENT TO THE PETITIONER
WP(C) Nos.27571/2021 & 28006/2017
APPENDIX OF WP(C) 27571/2021
PETITIONER EXHIBITS
Exhibit P1 PHOTOGRAPHS OF THE UNAUTHORISED
CONSTRUCTION CARRIED OUT BY THE 3RD
RESPONDENT
Exhibit P2 TRUE COPY OF THE COMPLAINT PREFERRED
BY THE PETITIONER TO THE 2ND
RESPONDENT DATED 17.11.2016
Exhibit P3 TRUE COPY OF COMMUNICATION
NO.A5/18033/16 DATED 1.2.2017 ISSUED
BY THE 2ND RESPONDENT TO THE 3RD
RESPONDENT
Exhibit P4 TRUE COPY OF THE REPORT SUBMITTED BY
OVERSEER, ARPOOKKARA GRAMA PANCHAYATH
DATED 20.3.2017
Exhibit P5 TRUE COPY OF ORDER NO.A5-18033/16
DATED 1.7.2017 ISSUED BY THE 2ND
RESPONDENT TO THE 3RD RESPONDENT
Exhibit P6 TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WP(C) NO.28006/2017
DATED 27.7.2018
Exhibit P7 TRUE COPY OF THE COMMUNICATION NO.B2-
7582/17 ISSUED BY THE 2ND RESPONDENT
TO THE 3RD RESPONDENT ON 22.8.2017
Exhibit P8 TRUE COPY OF THE ORDER IN RP
NO.724/2018 DATED 1.8.2019 IN WPC
Exhibit P9 TRUE COPY OF REPRESENTATION DATED
20.1.2020 SUBMITTED BY THE PETITIONER
TO THE 2ND RESPONDENT WITH RECEIPT
