Dismissed

Tahyyil Madhavi Amma, v. K.Ravi

Kerala HC3 Feb 2020WA/37/2020

Case brief

AI extract

What is this about?

A writ appeal challenging a Single Judge order restraining a Panchayat from issuing a building permit for a school. The High Court dismissed the appeal, made the interim stay absolute, and directed parties to litigate their property title dispute in the pending civil suit.

What did the court decide?

Stay on the Single Judge's judgment made absolute; parties directed to resolve title issues in the pending civil suit.

Tahyyil Madhavi Amma, Vs K.Ravi — Property and Title | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941

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WA.No.37 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 28442/2019(E) OF HIGH COURT OF KERALA

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APPELLANT/3RD RESPONDENT:

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TAHYYIL MADHAVI AMMA, AGED 78 YEARS

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THAYYIL HOUSE, URALLUR POST, ARIKULAM AMSOM, VAKAMOLI DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 620.

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BY ADVS.

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SRI.K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA ESWARAN

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RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:

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1 K.RAVI,

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AGED 56 YEARS S/O.KUNJIKRISHNAN, VARYARKANDI HOUSE, OORALOOR POST, ARIKULAM AMSOM, VAKAMOLI DESOM, KOYILANDY TALUK, KOZHIKODE - 673 620.

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2 ARIKULAM GRAMA PANCHAYATH, ARIKULAM GRAMA PANCHAYATH OFFICE, ARIKULAM POST, KOZHIKODE DISTRICT - 673 620.

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3 REVEUE DIVISIONAL OFFICER, VATAKARA P.O., KOZHIKODE DISTRICT - 673 101.

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R2 BY ADVS. SRI.SANTHARAM.P

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SMT.REKHA ARAVIND SRI.PAUL P. ABRAHAM R3 BY SENIOR GOVERNMENT PLEADER SRI.TEK CHAND

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA.No.37 OF 2020

JUDGMENT

SHAJI P.CHALY,J

Third respondent in W.P.(C) No.28442/2019 is the appellant challenging the judgment of a learned Single Judge dated 29.11.2019. As per the judgment impugned, learned Single Judge has found that, the petitioner in the writ petition has already approached a competent civil court for declaration of his right over the property in question and therefore, was of the view that, the appellant cannot be allowed to make any construction on the strength of Ext.R3(c) order dated 16.10.2019 issued by the Revenue Divisional Officer under section 27A of the Kerala Conservation of Paddy land and Wetland Act, 2008, permitting the appellant to utilise the property for other purposes other than paddy cultivation, since eventually if the suit is decreed against the appellant, then such construction would be required to be pulled down and that would be a complete wasteful expenditure.

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After finding so, the Panchayat was directed not to issue building permit based on the order passed by the Revenue Divisional Officer until such time the writ petitioner is able to obtain necessary orders from the civil court for such purpose. However, it was held that, should the civil suit filed by the writ petitioner finally ends in his favour and against the

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WA.No.37 OF 2020

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appellant, then Ext.R3(c) order passed by the Revenue Divisional Officer will stand vacated, with liberty to the writ petitioner to approach the Revenue Divisional Officer appropriately.

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When this writ appeal came up for admission, the operation of the judgment of the learned Single Judge was stayed, which stay continues to be in force. The paramount contention advanced by the learned counsel for appellant that since the order passed by the Revenue Divisional Officer is an appealable order under section 27B of Act, 2008, learned Single Judge should not have entertained the writ petition in view of the clear remedy available to the writ petitioner. It is also pointed out that, since the civil suit filed by the writ petitioner was pending before the court below, it was not proper on the part of the learned Single Judge to stay the operation of the order passed by the Revenue Divisional Officer and to further direct the Secretary of the Grama Panchayat not to issue building permit. That apart it is submitted that, the writ petitioner has not established the title over the property in question enabling the learned Single Judge to grant intervening orders pending the civil suit.

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On the other hand learned counsel appearing for the writ petitioner submitted that the writ petitioner has produced necessary documents before the learned Single Judge to establish the title and it was on the basis of satisfactory proof that the intervening orders were passed pending adjudication of the civil suit filed by the writ petitioner.

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WA.No.37 OF 2020

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We have considered the rival submissions made across the Bar. It

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is relevant to note that the writ petitioner has earlier approached this court by filing W.P.(C) No.24341/2019 and has secured Ext.P3 judgment dated 23.9.2019, wherein the learned Single Judge directed the Secretary of the Grama Panchayat to take up the complaint and hear the parties leading to a consequent order under the provisions of the Kerala Pachayat Raj Act and/or the Kerala Panchayat Building Rules, as expeditiously as possible. It was further held that, construction if any, being carried out by the appellant will be at her risk and cost and that it will be subject to the decision to be taken by the Secretary in terms of the judgment.

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From the pleadings put forth by the parties, it is evident that, it was thereafter the appellant has secured Ext.R3(c) order from the Revenue Divisional Officer under section 27A of Act, 2008. On a reading of Ext.R3(c) order from the Revenue Divisional Officer, it is clear and evident that the writ petitioner has raised objections and it was after hearing the writ petitioner, Ext.R3(c) order was passed permitting the appellant to utilise the property for other purposes other than paddy cultivation, of course subject to various riders.

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On an appreciation of the entire fact situation and bearing in mind that the construction is to be carried out for the purpose of the class rooms of a school and also bearing in mind that the appellant has already secured

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WA.No.37 OF 2020

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an order from the Revenue Divisional Officer, it is only appropriate that, the order of stay granted in the appeal against the judgment of the learned Single Judge is maintained and the parties are relegated to sort out their issues in the civil suit viz., O.S.No.86/2019 pending on the files of the Munsiff's Court, Koyilandy.

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Accordingly, the writ appeal is disposed of making the interim order passed by this court staying the operation of judgment of the learned Single Judge absolute, leaving open the liberty of the appellant as well as the writ petitioner i.e., the 1^st respondent herein to take up all contentions in the pending civil suit. Needless to say, the stay of operation of the judgment granted by this court would depend upon the judgment and decree passed by the Munsiff's Court, Koyilandy in the pending suit and thereafter the parties will be guided by the directives contained in the judgment and decree of the court below.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE

smv

Tahyyil Madhavi Amma, v. K.Ravi

Case brief

What is this about?

What did the court decide?

Tahyyil Madhavi Amma, v. K.Ravi

Case brief

What is this about?

What did the court decide?

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