Partly allowed

Satheesan v. the Deputy Director

Kerala HC10 Mar 2017WP(C)/10818/2007

Case brief

AI extract

What is this about?

In this writ petition, the High Court of Kerala set aside Government and Panchayat orders dismissing a petitioners appeal and directing demolition of unauthorized construction due to alleged proximity to a road. The Court found the orders were passed without hearing the parties on a factual dispute and based on an erroneous reading of a lower judgment.

What did the court decide?

Impugned orders Ext.P8 and Ext.P9 set aside. Government directed to decide appeal on merits by hearing parties within four months. Demolition proceedings stayed.

Satheesan Vs the Deputy Director — Partition | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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FRIDAY, THE 10TH DAY OF MARCH 2017/19TH PHALGUNA, 1938

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WP(C).No. 10818 of 2007 (K)

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PETITIONER:

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P.S.SATHEESAN, MANGALODHAYAM, MAMBARA P.O, RANNI-PERUNADU, PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.K.RAMAKUMAR (SR.)

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RESPONDENT(S):

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1. THE DEPUTY DIRECTOR OF PANCHAYATS, PATHANAMTHITTA.

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2. THE RANNI-PERUNADU GRAMA PANCHAYATH, (SPECIAL GRADE) REPRESENTED BY ITS SECRETARY, RANNI-PERUNADU, PATHANAMTHITTA DISTRICT.

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3. SRI.VISWANATHAN, PUTHENPARAMBIL HOUSE, MAMBARA P.O., PERUNADU,, PATHANAMTHITTA DISTRICT.

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4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF, GOVERNMENT (E) DEPARTMENT, GOVERNMENT OF KERALA,, THIRUVANANTHAPURAM.

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R1,R4 BY SENIOR GOVERNMENT PLEADER SRI BIJOY CHANDRAN R3 BY ADV. SRI.M.NARENDRA KUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WPC 10818 OF 2007:

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APPENDIX

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PETITIONERS EXHIBITS:

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P1: COPY OF STOP-MEMO DATED 20.10.2006. P2: COPY OF CERTIFICATE DATED 10.10.2006 BY THE ASST. ENGINEER, PWD.

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P3: COPY OF JUDGMENT DATED 16.11.2006 IN WPC 30268 OF 2006. P4: COPY OF ORDER DATED 20.12.2006. P5: COPY OF JUDGMENT DATED 23.1.2007 IN WA NO 75 OF 2007. P6: COPY OF PETITION DATED 21.3.2007 BY THE PETITIONER. P7: COPY OF ORDER DATED 16.1.2007 BY R1. P8: COPY OF ORDER DATED 24.2.2007 BY R4. P9: COPY OF ORDER DATED 20.3.2007 BY R2. P10 COPY OF REPORT DATED 5.2.2007 BY THE ASST. ENGINEER, PWD. P11 COPY OF RECEIPT DATED 6.7.2007.

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RESPONDENTS EXHIBITS :

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R3(1) COPY OF SALE DEED NO 167/04 PF SRO, RENNY IN FAVOUR OF MINU AND SARITHA MINU.

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R3(2) COPY OF THE NOTICE DATED 20.10.2006 SERVED ON THE PETITIONER BY FIRST RESPONDENT.

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R3(3) COPY OF THE COMMISSION REPORT FILED IN OS NO 213/06 DATED 31.10.2006 IN THE COURT OF SUB JUDGE, PATHANAMTHITTA.

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R3(4) COPY OF THE NOTICE DATED 20.12.2006 ISSUED BY SECRETARY RANNI PERUNAD GRAMA PANCHAYATH TO THE PETITIONER.

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R3(5) COPY OF THE LEWYER'S NOTICE DATED 4.1.2007 ISSUED BY THE PETITIONER TO FIRST AND SECOND RESPONDENTS.

/TRUE COPY/

P.A.TO JUDGE

K.V.

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = W.P.(C).No.10818 of 2007

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= = = = = = = = = = = = = = = Dated this the 10^th day of March, 2017

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JUDGMENT

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1.This writ petition is filed challenging Exts.P7 P8 and P9 orders issued by the Deputy Director of Panchayat, Pathanamthitta, the Government as well as the Ranni-Perunadu Grama Panchayat in respect of construction effected by the petitioner.

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Heard the learned counsel for the petitioner, the standing counsel for the Panchayat, the learned counsel for the 3^rd respondent and the learned Government Pleader.

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3.It was contended by the 3^rd respondent herein that the construction effected by the petitioner was within the prohibited distance of 3 metres from the Panchayat road and it is violative of Section 220(b) of the Kerala Panchayat Raj Act, 1994. He therefore approached this Court complaining of unauthorised construction effected by the petitioner. By Ext.P3, the Deputy Director of Panchayat was directed to

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W.P.(C).No.10818/2007

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consider the complaint preferred by the 3^rd respondent herein with notice to the petitioner and to pass orders thereon. It was further directed the construction may be at the risk of the petitioner and in the event of the Deputy Director finding against the petitioner, he will be liable to demolish those constructions. It is submitted that the appeal preferred against the said judgment was also dismissed by Ext P5.

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4.In spite of issuance of Ext. P3, the Deputy Director had heard the parties and passed Ext.P4 order. By Ext.P4, it is held that the construction made by the petitioner was unauthorised and that steps shall be taken by the Secretary of the Grama Panchayat against the said unauthorised construction. The petitioner preferred Ext.P6 appeal as against the said decision of the Deputy Director of Panchayat before the Government. It appears that Ext.P7 report had been sent by the Deputy Director of Panchayat to the Government stating that the petitioner had carried out unauthorised construction, since the distance from the PWD road was only 2.70 metres. It appears that the Government by Ext P8 letter informed the Panchayat

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W.P.(C).No.10818/2007

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that the appeal preferred by the petitioner need not be heard,since it is made without revealing the judgment of this Court dated 16.11.2006 in W.P.(C).No.20628/2006. It was therefore directed that immediate steps should be taken to demolish the building. Ext.P9 is the consequential notice issued by the Panchayat directing the petitioner to immediately demolish the building constructed by him.

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On consideration of the pleadings and the materials on record, it is apparent that the judgment referred to in Ext.P8 is Ext.P3. The said judgment was only directing the consideration of the complaint preferred by the 3^rd respondent. A further direction was to the effect that in case it is found that the construction made by the petitioner is unauthorised, the same will be liable to be demolished. In the conclusion made by the Government in Ext.P8, it is stated that the petitioner had suppressed the existence of Ext.P3 judgment and the assumption is that there was some direction to demolish the construction made by the petitioner. This conclusion does not appear to be borne out by

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W.P.(C).No.10818/2007

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the judgment which was produced as Ext.P3. The direction in Ext.P3 was to consider the complaint. The said complaint has been apparently considered after hearing the parties. Ext.P6 was an appeal preferred by the petitioner against the said order of Deputy Director of Panchayat. The dismissal of the appeal on the assumption that there was a positive direction to demolish the construction made by the petitioner does not appear to be warranted in the facts and circumstances of the instant case. This is more so in view of the fact that the petitioner had produced Ext.P2 certificate issued by the Assistant Engineer, PWD which states that the construction being put up by him is at a distance of 3.10 metres from the extreme boundary of the PWD road. It appears that in Ext.P4, the Deputy Director has relied on the Commissioner's report dated 31.10.2006 to find that construction is at the distance of 2.70 metres.

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6.In the above circumstances, it is clear that there is a factual dispute as to the distance between the PWD road and the construction being put up by the petitioner. This was a matter

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W.P.(C).No.10818/2007

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which requires a hearing, adjudication and the conclusion at the hands of the statutory authorities. This exercise has now been derailed by Ext.P8 order on the assumption there is no requirement for any further adjudicatory process in the light of an alleged finding in Ext.P3 that the building is liable to be demolished. As stated herein, there is no such finding contained in Ext.P3. Ext.P6 being an appeal preferred before the Government from an order of the Deputy Director of Panchayats, therefore, ought to have been considered on its merits.

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7.In the facts and circumstances, of the instant case, I am of the opinion that the question raised could have been decided properly only after hearing parties to the appeal. The rejection of the petitioner's appeal against Ext.P4 order by Ext.P8 letter is therefore totally unwarranted and the impugned communication is one issued without application of mind. Ext.P8 and consequential Ext.P9 order are therefore set aside. It is directed that the Government shall take up Ext.P6 appeal preferred by the petitioner against Ext.P4 order and

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W.P.(C).No.10818/2007

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pass reasoned orders on the same after issuing notice and after hearing the petitioner as well as the 3^rd and 4^th respondents herein. Till orders are passed and communicated to the petitioner by the Government, the direction for demolition of the building shall not be enforced. Orders, as directed above, shall be passed by the Government within a period of four months from the date of receipt of a copy of this judgment.

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This writ petition is ordered accordingly.

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sd/- Anu Sivaraman, Judge

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Satheesan v. the Deputy Director

Case brief

What is this about?

What did the court decide?

Satheesan v. the Deputy Director

Case brief

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What did the court decide?

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