Kerala High Court
Mariyath Abdul Razak vs Secretary on 29 September, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1013 of 2009()
1. MARIYATH ABDUL RAZAK,
... Petitioner
Vs
1. SECRETARY,
... Respondent
For Petitioner :SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/09/2009
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.1013 of 2009
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Dated this the 29th day of September, 2009.
JUDGMENT
Heard counsel for appellant.
This Second Appeal is brought from judgment and decree of learned Additional District Judge, Thalassery in A.S,No.80 of 2006 confirming judgment and decree of learned Munsiff, Koothuparamba in O.S.No.521 of 1998. The suit was for a declaration that the impugned structure in the suit property is not illegal and a mandatory injunction to direct respondent-Panchayat to assign a number for that structure. Appellant claimed that in the suit property, there was an old structure, a kumatty, even as in 1940 and that the structure continued to be so even after he acquired title and possession of the suit property. While so, he effected some repairs for the structure. Respondent-Panchayat issued notice to him on 9.9.1996 stating that without permission of the respondent, he put up a new structure and directing its removal. He replied to the notice and thereafter, there was no further action from the side of respondent. Appellant let out the room to one Nazar. Respondent then issued notice to the said Nazar stating that he could not conduct business in the said premises as its construction violated the relevant laws. Thereon, appellant issued notice to the respondent under Section 249 of the Panchayat Raj Act and following that, laid the suit with the above allegations and claiming reliefs as first above stated. RSA No.1013/2009 2 Respondent contended that there was a small structure in the suit property earlier but it ceased to exist during 1992-1993 and hence, no new number was assigned to that structure during 1993-1994 and thereafter. In 1996 appellant constructed a new structure in violation of the provisions of the Kerala Building Rules which was made applicable in the Panchayat with effect from 1.1.1978. Hence notice was issued to the appellant on 19.9.1996 to which he replied on 3.10.1996. Appellant agreed with the Secretary of respondent to remove the structure and hence no further action was taken. It is while so that respondent learnt that business has started in the room and thereon, further notice was issued. Learned Munsiff found that the contention of appellant that he has only repaired the existing structure is not correct and refused to grant declaration and injunction. First appellate court confirmed the finding as well as the dismissal of the suit. Learned counsel for the appellant would contend that existence of a structure in the suit property even during 1940 is not disputed and then it is for respondent to show that it was re-constructed in violation of the Kerala Building Rules. Learned counsel also contends that reports and sketches prepared by the advocate commissioner were not shown to be incorrect by the respondent.
2. I am unable to accept the contention that burden of proof was on respondent. On the allegation that there was only a repair of the old structure appellant approached the court and sought reliefs. Burden of proof therefore RSA No.1013/2009 3 lay on him. Appellant has not gone into the box to give evidence. Instead, his power of attorney holder (PW1) has given evidence. He stated that appellant was at Bangalore. But, it was not as if appellant was unable to attend the court and given evidence. Ext.B3 is the reply of appellant dated 3.10.1996 to the statutory notice dated 19.9.1996 issued by the respondent. Courts below have observed that on the back of Ext.B3, there is an endorsement by DW3 that since appellant agreed to remove the structure, further action was dropped. Courts below found that the said endorsement corroborated the evidence of respondent about the appellant agreeing to remove the impugned structure. Courts below observed that though the suit was filed in the year 1998, appellant who claimed that he had effected only repairs to the old structure did not take out a commission at that time to prove the same and instead, application for commission was filed only on 24.8.2000 almost two years after filing suit and the commissioner reported that wooden planks had already been painted. Though commissioner reported that the age of the structure is about 15-18 years, commissioner did not say how the oldness was assessed. Commissioner also reported in Ext.C2 that the structure projected into the road on the western side as contended by the respondent. According to the respondent, structure obstructed the road view since it is a sharp curve and posed great danger. DW2 is the Project Engineer who inspected the structure on the request of respondent and he has assessed oldness of the impugned structure as 3-4 RSA No.1013/2009 4 years at the time of his inspection in the year 2001-2002. His evidence is not shown to be untrustworthy. Failure of the appellant to take out a commission at the time of filing the suit loom large on the case of the appellant. That has to be taken along with evidence of DW2 regarding oldness of the structure as on 2001-2002 as aged 3-4 years. Courts below found that the contention of appellant that he has only effected minor repairs to the old structure cannot be accepted. That is a finding of fact and no question of law is involved, much less any substantial question of law.
3. It is not the contention of appellant that the notice issued by the respondent is without jurisdiction, violated any of the provisions of the relevant stature or is in anyway illegal. Respondent is the statutory authority to look into the question whether there is unauthorized construction. A machinery is provided in the Panchayat Raj Act against orders passed by the respondent. The civil court cannot sit in appeal over the decisions of the statutory authority. Civil court need interfere only when it is shown that notice issued is illegal in the sense that it is in violation of the statutory provisions or beyond the jurisdiction or is patently malafide. None of these circumstances arise in this case. On going through the judgment under challenge and hearing learned counsel I do not find any substantial question of law requiring interference of this Court in this Second Appeal. However, I make it clear that it will be open to the appellant to pursue RSA No.1013/2009 5 his statutory remedy under the Panchayat Raj Act if the appellant is entitled to that course.
With the above observation, this Second Appeal is dismissed. I.A.Nos.2260 & 2261 of 2009 will stand dismissed.
THOMAS P.JOSEPH, Judge.
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