Kerala High Court
C.K.Gopi vs The Principal Secretary To The ... on 29 December, 2011
Author: C.T. Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
TUESDAY, THE 25TH DAY OF MARCH 2014/4TH CHAITHRA, 1936
WP(C).No. 8494 of 2014 (J)
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PETITIONER(S):
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C.K.GOPI, AGED 58 YEARS
S/O.KUMARAN, SIVAS HOUSE, KIZHAKKUMBHAGAM KARA
ETTUMANOOR VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.
BY ADV. SRI.K.V.ANILKUMAR
RESPONDENT(S):
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1. THE PRINCIPAL SECRETARY TO THE GOVERNMENT
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM-695001.
2. THE DISTRICT TOWN PLANNER
OFFICE OF THE TOWN PLANNER, ST.ANTONY'S COMPLEX
NAGAMPADOM, KOTTAYAM-686001.
3. ETTUMANNOOR GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, ETTUMANNOOR (PO)
KOTTAYAM-686631.
4. THE SECRETARY
ETTUMANNOOR GRAMA PANCHAYAT, ETTUMANNOOR (P.O)
KOTTAYAM-686631.
5. P.J.JAMES, AGED 47 YEARS
S/O.P.J.JOSEPH, PROPRIETOR, MAHIMA FABRICS
PLAMOOTTIL HOUSE, KIZHAKKUM BHAGAM KARA, ETTUMANNOOR
KOTTAYAM-686631.
R1,2 BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR
R3,4 BY SRI.SIBY CHENAPPADY, SC, ETTUMANOOR GRAMA PANCHAYAT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-03-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 8494 of 2014 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS :
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EXHIBIT-P1: TRUE COPY OF THE REPRESENTATION DATED 29.12.2011, BEFORE
THE RESPONDENTS.
EXHIBIT-P2: TRUE COPY OF THE ORDER DT.19.02.2014 IN APPEAL NO.635/2013
OF THE HONOURABLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM.
EXHIBIT-P3: TRUE COPY OF THE ORDER DT.19.02.2014 IN APPEAL NO.635/2013
OF THE HONOURABLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM.
EXHIBIT-P4: TRUE COPY OF THE PHOTOGRAPH SHOWING THE OLD BUILDING
AND THE NEW BUILDING OF THE 5TH RESPONDENT.
EXHIBIT-P4(A): TRUE COPY OF THE PHOTOGRAPH SHOWING THE OLD BUILDING
AND THE NEW BUILDING OF THE 5TH RESPONDENT.
RESPONDENT(S)' EXHIBITS:
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//TRUE COPY//
P.A.TO JUDGE
C.T. RAVIKUMAR, J.
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W.P.(C). No.8494 OF 2014
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Dated this the 25th day of March, 2014
JUDGMENT
This writ petition has been filed challenging Ext.P3 order dated 19.2.2014 passed by the Tribunal for Local Self Government Institutions. The fifth respondent herein filed Appeal No.635 of 2013 before the Tribunal challenging the order bearing No.A1-30/11 dated 26.6.2013 passed by the fourth respondent herein to demolish the construction effected in the property comprised in Re-survey No.18/1-1 (old survey No.231/1) of Ettumanoor village in Kottayam District. Evidently, a provisional order was passed by the third respondent earlier against the 5th respondent at the instance of the petitioner. The grievance of the petitioner before respondents 3 and 4 that led to issuance of the order dated 26.6.2013 was that under the guise of carrying out renovation works the fifth respondent had been making new construction. After considering the contentions of the W.P.(C).8494/14 2 appellant/5th respondent the Tribunal passed the impugned order setting aside the order dated 26.6.2013 for demolishing the constructions and directed the respondent therein viz., the 4th respondent herein to pass fresh orders by taking into consideration the reply submitted by the appellant therein (5th respondent herein) in the proceedings that culminated in the order dated 26.6.2013 and also taking into account the category of the building and the nature of construction actually effected by him.
2. The petitioner herein is a nearby resident of the property belonging to the 5th respondent whereon the construction involved in the dispute was effected. The contention of the petitioner is that the 5th respondent constructed a new double storied commercial building after demolishing the existing old building bearing No. VI/3456 on the southern side of M.C.Road, in the property comprised in the aforementioned survey number. The further contentions of the petitioner are as hereunder:-
The 5th respondent is the proprietor of a textile shop namely W.P.(C).8494/14 3 'Mahima Fabrics' and it is one of the old textile shops in Ettumanoor town. Without obtaining an approved plan or permit from the 3rd respondent panchayat the 5th respondent commenced construction of shop room under the guise of renovation of the existing old shop room and the said construction is illegal for the following reasons:-
i. That the proposed construction in progress is without leaving any open space which is mandated by the Kerala Municipality Building Rules 1999. ii.That the construction so far made by the 5th respondent is without any fire escape and staircase. iii.That prior sanction from the District Town Planner approving the plan submitted before the respondent panchayat. However, in the instant case, there is no such attempt from the part of the 5th respondent to obtain any approved plan from the District Town Planner.
iv.The construction undertaken is without providing any open space on all the four sides.
v. That the construction in progress is without keeping the minimum set back as mandated by the Kerala Municipality Building Rules 1999.
3. Earlier, with a request to prevent the 5th respondent from effecting construction in question and also to revoke permit, if any, granted for effecting such construction the petitioner filed Ext.P1 representation. The said complaint culminated in provisional and W.P.(C).8494/14 4 final orders carrying directions to the 5th respondent and also the alleged purchaser of appurtenant building and thereupon, they challenged those orders successfully before the Tribunal for Local Self Government Institutions. Obviously, the said appeals were allowed as per Ext.P2 as hereunder:-
"In the result, the impugned orders are set aside and the appeals are allowed. The Secretary may initiate fresh proper proceedings against the unauthorised constructions if any effected by the appellants by issuing proper steps under section 235W of the Kerala Panchayat Raj Act narrating the details of the unauthorised construction, the law violated by the construction etc, without any unnecessary delay."
4. Later, in compliance with Ext.P2 order the 4th respondent herein passed provisional and final orders under section 235(W) of the Kerala Panchayt Raj Act directing the 5th respondent to demolish the construction, which according to the petitioner is unauthorised and illegal. In fact, it is the said order dated 26.6.2013 that was challenged by the 5th respondent before the Tribunal for Local Self Government Institutions that culminated in the present impugned order viz., Ext.P3. To lend support to the contention that the 5th W.P.(C).8494/14 5 respondent has actually effected a pacca new building the petitioner produced Exts.P4 and P4(a) claiming to be the photographs respectively of the old building and the new building.
5. I have heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 and 2 as also the learned standing counsel for respondents 3 and 4.
6. In the context of the contentions, it is relevant to refer to the findings of the Tribunal in Ext.P3 order. Taking note of the specific contention of the fifth respondent/appellant before the Tribunal that he had constructed only some pillars for strengthening the existing building the Tribunal called for the files and perused the same. The said fact is evident from the following recital from Ext.P3:-
"The specific case of the appellant is that he has only constructed some pillars for strengthening the building. The file produced by the respondent did not show any inspection report prepared by the respondent on inspecting the spot. The impugned W.P.(C).8494/14 6 order also did not state that the construction made is by totally demolishing the old building. If at all the construction made by the appellant is only for strengthening the old building he has got some reservation as per the document No.5 produced from the side of the appellant. The fact that in the provisional order there was no allegation that the fifth respondent had effected and demolished completely the existing construction and in its place effected new construction. On the other hand, what is stated in the provisional order is that the construction of the existing building has been changed by constructing the pillars and new construction has been made."
7. Certain other facts and factors also weighed with the Tribunal for passing the impugned Ext.P3 order, as is obvious from it. In that context, paragraphs 6 to 8 of Ext.P3 assumes relevance. The specific case of the 5th respondent herein/the appellant was that he had made only certain construction to strengthen the existing portion of the building for which he was entitled since his property falls under case-1 category in Document No.5 referred as such in Ext.P3, which is a copy of a letter issued by the Executive Engineer, Kerala Public Works Department to the Special Grade Secretary, Ettumanoor Grama Panchayat. Going by Document No.5, in the case of buildings W.P.(C).8494/14 7 acquired for the upgradation of M.C.Road from Chengannur to Muvattupuzha as case-1 partially acquired compensation was given for that part of building falling within the line of acquisition only and the building owners themselves had to strengthen the remaining portion of the building at their own risk and cost by constructing additional pillars or walls as the case may be. According to the 5th respondent, he was entitled to strengthen the remaining of the building after the acquisition for the aforesaid purpose and he had done only that. At the same time, going by document No.5, the LSGD was given the liberty to observe violation of Kerala Panchayat Building Rules while constructing additional building area, floors or total reconstruction of the remaining building. The fact that in the provisional order issued by the 4th respondent there was no case that the 5th respondent had completely demolished the old building and then effected new construction, was also taken into account. The fact that there is no such case in the final order viz., the impugned order dated 26.6.2013 was also considered. Above all, the fact that the impugned order therein dated 26.6.2013 was passed without W.P.(C).8494/14 8 considering any of the contentions advanced by the appellant-5th respondent was also considered while passing Ext.P3 order. It was taking into account all such relevant aspects that Ext.P3 order was passed by the Tribunal. After such detailed consideration the appeal preferred by the 5th respondent was allowed as hereunder:-
"In the result, the impugned order is set aside and the appeal is allowed and the respondent is directed to pass fresh order by taking into consideration the reply submitted by the appellant and also taking into account the category of the building and the nature of construction actually effected by the appellant. Respondent is directed to pass orders within one month starting from this date."
8. After a careful consideration of Ext.P3 order bearing in mind the contentions of the petitioner I am not in a position to hold that the finding of the Tribunal is perverse or against the weight of evidence. Interference with an order of the Tribunal under Article 226 of the Constitution of India is called for if the finding of the Tribunal is totally perverse or against the weight of evidence or if it is against the specific provisions of law. The petitioner produced Ext.P4 series of photographs to establish that the finding of the Tribunal is perverse. W.P.(C).8494/14 9 A perusal of Ext.P4 and P4(a) would also dissuade me to accept the contention of the petitioner that Ext.P4(a) is the new construction effected after completely demolishing the old building. In fact, Exts.P4 and P4(a) suggest otherwise. In paragraph 8 of Ext.P3, the Tribunal observed that the files produced by the 4th respondent did not show any inspection report prepared by the said respondent on inspecting the spot. This writ petition has been filed mainly seeking the following reliefs:-
i. To issue a declaration that the construction already effected by the 5th respondent is a new double storied commercial building after demolishing the existing old building bearing No.VI/3456 on the southern side of MC Road, without obtaining permit and plan from the 3rd respondent Grama Panchayat in accordance with Kerala Municipality Building Rules 1999 and hence the same is liable to be demolished.
ii.To issue a writ of certiorari or any appropriate writ or order, calling for the records leading up to Ext.P3 and quash the same.
iii.To issue a writ of mandamus or any other appropriate order, directing the respondents to take emergent action to demolish the illegal and unauthorized construction of the 5th respondent.W.P.(C).8494/14 10
Evidently, as per Ext.P3 order, the Tribunal required the fourth respondent to look into the actual nature of the construction and also the category of the building and then pass appropriate orders taking into consideration of the reply affidavit filed by the 5th respondent. In view of the circumstances thus obtained, I find no reason to interfere with Ext.P3. In fact, the petitioner is not entitled to any of the reliefs.
I am of the view that a consideration of the issues as directed by the Tribunal in Ext.P3 is required. In the result, this writ petition has to fail and accordingly, it is dismissed.
Sd/-
C.T. RAVIKUMAR
(JUDGE)
spc/
W.P.(C).8494/14 11
C.T. RAVIKUMAR, J.
JUDGMENT
September,2010
W.P.(C).8494/14 12