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Sree Menothukavu Bhagavathi Temple Managing Committee v. the State of Kerala

Kerala HC25 Nov 2019WP(C)/3095/2019

Case brief

AI extract

What is this about?

The Court stayed enforcement of a demolition order by the Panchayat in a writ petition regarding a disputed boundary structure. It directed status quo maintenance for six months, allowing the petitioner to obtain necessary orders from the pending Civil Court before seeking regularization.

What did the court decide?

Stay of action based on Ext.P13 for six months; direction to maintain status quo; liberty to approach Civil Court and subsequently Panchayat after obtaining necessary orders.

Sree Menothukavu Bhagavathi Temple Managing Committee Vs… — Landlord and Tenant | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941

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WP(C).No.3095 OF 2019(J)

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PETITIONER:

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SREE MENOTHUKAVU BHAGAVATHI TEMPLE MANAGING COMMITTEE PERINJANAM, REP. BY ITS PRESENT SECRETARY GOPALAKRISHNAN, AGED 63, S/O.KOCHAMMALU AMMA, CHAKALAKAL HOUSE, PERINJANAM, THRISSUR-680686.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENTS:

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1 THE STATE OF KERALA

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REP. BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTRHAPURAM-695001.

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2 THE PERINJANAM GRAMA PANCHAYATH REP. BY ITS SECRETARY, PERINJANAM P.O, THRISSUR-680686.

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3 GOPALAKRISHNAN

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AGED 58 YEARS S/O.PUTHEN VEETIL SAROJINI AMMA, PERINJANAM P.O, THRISSUR DISTRICTR-680686.

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BY ADV. SRI.P.K.SAJEEV -SC BY ADV. SRI.H.PRAVEEN (KOTTARAKARA)

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OTHER PRESENT:

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GP - K.J.MANURAJ

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.3095 OF 2019(J)

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J U D G M E N T

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The petitioner, which is stated to be the Managing Committee of a Temple by name 'Sree Menothukavu Bhagavathi Temple' at Perinjanam, has approached this Court impugning Exts.P12 and P13, as per which, the building constructed by them as an 'Oottupura' (Community Dining Hall) has been directed to be demolished, because it has been constructed illegally and the petitioner did not take sufficient steps to have it regularized in spite of the directions to do so in Ext.P12.

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The petitioner says that the conditions imposed in Ext.P12 are impossible of performance now, since there is a boundary dispute between them and the 3^rd respondent, on the basis of which, a Suit, numbered as O.S.No.124/2018, is pending before Sub Court, Irinjalakuda. They say that the conditions in Ext.P12 can be complied with by them only after the said Suit is decreed one way or the other. They say that they are making these submissions because, as is evident from Ext.P12, they have been asked to obtain the consent of the 3^rd respondent, since the toilet complex with respect to the

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WP(C).No.3095 OF 2019(J)

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'Oottupura' has been constructed on the boundary but that this boundary, is under dispute in the Civil Suit. They contend that, therefore, if the boundaries are fixed as per the directions in the Civil Suit, then obviously, all the other conditions in Ext.P12 will be easy to be complied with but not otherwise. The petitioner, therefore, prays that Exts.P12 and P13 be set aside and the Panchayat be directed to provisionally number the building, subject to the final decree in the Suit.

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The learned counsel appearing for the 3^rd respondent however, opposes the above plea very vehemently saying that, as of now, the construction made by the petitioners encroach into his client's property and that its plumbing lines are also virtually laid within his property. He however, concedes that there is a dispute between his client and the petitioner with respect to the boundary of the property and that the afore mentioned Suit is still pending. He says that therefore, until the Suit is decreed, the Panchayat cannot allow the constructions to be occupied by the petitioner.

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The learned Standing Counsel for the 2^nd respondent - Grama Panchayat, Sri.P.K.Sajeev, submits that the petitioner

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WP(C).No.3095 OF 2019(J)

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cannot impugn Exts.P12 or P13 because through the former, they were asked to regularize the construction by complying with certain conditions. He says that since they did not do so, the Panchayat had no other option but to issue Ext.P13, which is the final order issued under Section 235W of the Kerala Panchayat Raj Act and consequently that the petitioner must demolish the offending toilet structure immediately. He prays that this writ petition be, therefore, ordered granting his client the liberty to do so, if the petitioner refuses to act as per the directions in Ext.P13.

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When I consider the afore submissions, it is ineluctable that the petitioner has approached this Court primarily impugning Ext.P13, as per which, they have been directed to demolish the toilet complex constructed in their property. Though the petitioner asserts that this construction has been made in their property, the 3^rd respondent asserts otherwise; and it is thus without doubt, that the civil disputes between them are still existing. Obviously, therefore, until a competent Civil Court decides upon this issue in the pending Suit, it would not be possible for this Court to declare

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WP(C).No.3095 OF 2019(J)

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affirmatively regarding the rights of the parties on the property in question. Certainly, therefore, the petitioner will have to approach the Civil Court and obtain necessary orders, based on which alone the boundary of the properties can be either ascertained or the petitioner be allowed to use the construction either provisionally or finally. I do not, therefore, think that it will be proper for this Court to intervene at this stage, since by doing so, it will have, directly or indirectly, the effect of interfering with the pending civil processes.

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Perhaps sensing my mind as afore, Sri.Sreekumar Chelur, learned counsel for the petitioner, submitted that this Court may direct the Panchayat to maintain status quo for some time, so that his client will be in a position to approach the Civil Court and obtain necessary orders. This, I am certain, is a request that can be acceded to by this Court, however, on condition that the petitioner does not use the toilet complex,thus ensuring that the 3^rd respondent is not in any manner prejudiced.

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Resultantly, I order this writ petition and direct the Panchayat not to take action based on Ext.P13 for a period of

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WP(C).No.3095 OF 2019(J)

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six months from the date of receipt of a copy of this judgment; within which time, the petitioner will be at liberty to approach the competent Civil Court in the pending Suit and obtain necessary orders; subsequent to which, they will be at liberty to approach the Panchayat, in which event, the Secretary of the Panchayat will hear them as well as the 3^rd respondent and take a final decision on both regularization of the building and grant of building number and occupancy certificate to it subject to law and after following due procedure.

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I, however, clarify that until such time as the building is numbered and the occupancy certificate issued, the petitioner will not use the toilet complex and that status quo, as on today, with respect to it would be maintained by all sides.

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SD/-

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DEVAN RAMACHANDRAN

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JUDGE

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WP(C).No.3095 OF 2019(J)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE DOCUMENT EXECUTED BEARING NO.2922 OF 2013 OF THE MATHILAKAM SRO DATED 16/08/2013.
EXHIBIT P2	A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF THE PETITIONER SAMITHI ISSUED DATED 08/05/2018.
EXHIBIT P3	A TRUE COPY OF THE NOTICE SERVED ON THE PETITIONER DATED 22.2.2018.
EXHIBIT P4	A TRUE COPY OF THE COMPLAINT OF THE THIRD RESPONDENT DATED 19/02/2018.
EXHIBIT P5	A TRUE COPY OF THE REPLY OF THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 12/3/2018.
EXHIBIT P6	A TRUE COPY OF THE PLAINT IN OS.NO.124/2018 DATED 16/07/2018 ON THE FILE OF THE SUB COURT, IRINJALAKUDA.
EXHIBIT P7	A TRUE COPY OF THE WRITTEN STATEMENT FILED IN EXT.P6 BY THE DEFENDANTS DATED 28/09/2018.
EXHIBIT P8	A TRUE COPY OF THE COMMUNICATION OF THE SECOND RESPONDENT DATED 14/08/2018.
EXHIBIT P9	A TRUE COPY OF THE COMMUNICATION BY THE PETITIONER DATED 26/09/2018.
EXHIBIT P10	A TRUE COPY OF THE COMMUNICATION BY THE SECOND RESPONDENT DATED 01/10/2018.
EXHIBIT P11	A TRUE COPY OF THE REPLY OF THE PETITIONER DATED 22/10/2018.
EXHIBIT P12	A TRUE COPY OF THE COMMUNICATION BY THE SECOND RESPONDENT DATED 17/12/2018.
EXHIBIT P13	A TRUE COPY OF THE COMMUNICATION OF THE

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WP(C).No.3095 OF 2019(J)

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SECOND RESPONDENT DATED 29.1.2019.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R3(a) TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT DATED 6-3-2019. EXHIBIT R3(b) TRUE COPY OF THE SITE PLAN APPROVED BY THE 2ND RESPONDENT. EXHIBIT R3(c) TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO ME DATED 26-4-2019.

Sree Menothukavu Bhagavathi Temple Managing Committee v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Sree Menothukavu Bhagavathi Temple Managing Committee v. the State of Kerala

Case brief

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What the court decided

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