Kerala High Court
Joy Joseph vs Mutholi Grama Panchayat on 6 April, 2009
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11338 of 2009(J)
1. JOY JOSEPH, NADUVILA KANGAZHAKKATTU
... Petitioner
Vs
1. MUTHOLI GRAMA PANCHAYAT,
... Respondent
2. THE SECRETARY, MUTHOLI GRAMA PANCHAYAT,
3. HARIKUMAR T.B., ATTEDATHU HOUSE,
For Petitioner :SRI.N.RAGHURAJ
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :06/04/2009
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.11338 of 2009
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Dated this the 6th day of April, 2009
J U D G M E N T
The petitioner challenges Ext.P7 order, whereby the petitioner's request for change in the nature of the user/occupancy of a building has been rejected. Originally the petitioner obtained a permit for construction of a log shed, as per which permit, the log shed was constructed. Thereafter, it was proposed to let out for conducting a toddy shop, which was challenged by an aggrieved person. That challenge was upheld by this Court, by Ext.P2 judgment. Writ Appeal was filed against that judgment, in which Ext.P4 judgment was passed by the Division Bench upholding Ext.P2, but observing that that would not prevent the petitioner from making further application before the Panchayat and the Panchayat can issue permit after considering the objections, if any, of the contesting respondents and any other affected parties, according to law. The affected party filed a contempt case alleging non-implementation of Ext.P2 judgment, in which I passed the following order, which is Ext.P5.
"The learned counsel for the petitioner submits that presently the toddy shop in question stands closed. However, he raises an apprehension that as soon as this contempt of court case is closed, the toddy shop may again start functioning. In the above circumstances, the contempt of court case is closed without prejudice to the right of the petitioner to re-store this contempt of court case to file, if the toddy shop re-starts."2
Thereafter, the petitioner filed a petition seeking permission to change the nature of user/occupancy of the building, which has been rejected by Ext.P7 order on the ground that the granting of such permit would be against Exts.P2 and P4. I am of opinion that it is perfectly open to the petitioner to contend before the Tribunal in an appeal against Ext.P7 that such a request would not in any way go counter to Exts.P2 and P4. In Ext.P4 specific liberty was given to the petitioner to file a future application before the Panchayat and it was observed that the Panchayat can issue permit after considering the objections, if any, by the contesting respondents and any other parties, according to law. I do not think that the Tribunal would be averse to consider that contention, if under law, the petitioner has a right to apply for change of nature of user/occupancy of a building, which was not the subject matter of Ext.P2 judgment, especially when, by Ext.P4 judgment, the petitioner was given liberty to do so. Therefore, without prejudice to right of the petitioner to challenge Ext.P7 in an appeal as provided under the Kerala Panchayat Raj Act, this writ petition is dismissed.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
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