Disposed

Muhammed Hussain v. the Secretary, Pathanapuram Grama Panchayath

Kerala HC25 Mar 2021WP(C)/5646/2012

Case brief

AI extract

What is this about?

The Court disposed of a writ petition filed by the petitioner against the Secretary and neighbors for alleged unauthorized construction. Directing the Secretary to investigate the construction under the Kerala Panchayat Building Rules, 2011, the Court ordered issuance of a notice if violations are found and directed regularisation proceedings otherwise.

What did the court decide?

Direction to Secretary of Pathanapuram Grama Panchayat to enquire into construction by respondents and issue notice for explanation if found without permit; complete proceedings within two months.

Muhammed Hussain Vs the Secretary… — Pension and Retirement Benefits | Kerala HC (2021)

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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 SHAJI P.CHALY

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THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943

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WP(C).No.5646 OF 2012(E)

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PETITIONER/S:

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MUHAMMED HUSSAIN AGED 57 YEARS S/O THANGAL BAVA RAWTHER, PARLOT KIZHAKKETHIL, CHACHI PUNNA, PUNNALA P.O, PATHANAPURAM

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BY ADV. SRI.P.MARTIN JOSE

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RESPONDENT/S:

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1 THE SECRETARY, PATHANAPURAM GRAMA PANCHAYATH PATHANAPURAM 689 695

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2 AYSHA BEEVI AGED 55 YEARS W/O BADARUDDIN, BLAKETH HOUSE, EZHANKULAM, NEDUMAM P.O, PATHANAMTHITTA 691 556.

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3 BEEVI AMMAL, AGED 53 YEARS, W/O NAZURUDDIN @ NAZAR, PADINJARE KADAYIL VEED, OPPOSITE SEEMA THEATRE, PUNNALA P.O, PATHANAPURAM, PIN 689 706

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R1-2 BY ADV. SRI.P.HARIDAS R3 BY ADV. SRI.ESM.KABEER R1 BY ADV. SMT.LIJI KUTTAPPAN R1 BY ADV. SRI.MANOJ RAMASWAMY R1 BY ADV. SMT.S.SIKKY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 5646/2012

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: 2 :

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Dated this the 25^th day of March, 2021.

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JUDGMENT

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This writ petition is filed by the petitioner seeking a writ of mandamus directing the Secretary of the Pathanapuram Grama Panchayat – the first respondent to dispose of Ext.P9 representation submitted by the petitioner apparently under Section 235W of the Kerala Panchayat Raj Act, 1994 ('Act, 1994' for short) and other consequential reliefs.

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The contention of the petitioner is that respondents 2 and 3 namely Aysha Beevi and Beevi Ammal, have encroached into the property of the petitioner and carried out the construction of a shop room and a toilet without securing necessary permit from the Secretary of the Pathanapuram Grama Panchayat. It is on that count that the petitioner has submitted Ext. P9 representation seeking to invoke the provisions of the Act, 1994.

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Anyhow, fact remains, the matter was pending before this Court for the past 9 years and at this distance of time, it may not be conducive to direct the Secretary of the Grama Panchayat to take a decision on Ext. P9 representation submitted by the petitioner. But, at the same time, since the petitioner has a contention that the

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W.P.(C) No. 5646/2012

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: 3 :

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construction was carried out by respondents 2 and 3 without securing permit from the Grama Panchayat, it is a matter to be looked into by the Secretary in accordance with Section 235W of the Kerala Panchayat Building Rules, 2011.

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Therefore, after having heard the respective counsel across the Bar, I am of the considered opinion that the writ petition can be disposed of with suitable directions. Accordingly, there will be a direction to the Secretary of the Pathanapuram Grama Panchayat to make necessary enquiry into the construction carried out by respondents 2 and 3 and ultimately, if it is found that the construction was carried out after the Building Rules was brought into force under the Kerala Panchayat Raj Act, 1994 or under the Kerala Municipality Act, 1994, and without securing permit, a notice shall be issued to respondents 2 and 3 to explain as to why the construction was carried out without securing permit.

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However, I make it clear that if it is found that the construction was carried out without securing permit and the Secretary is of the opinion that the construction was carried without violating the Building Rules, necessarily, the Secretary has to receive a regularisation application from the respondent in terms of the provisions of the Act, 1994 and the Rules, 2011 and identify as to whether the construction can be regularised in terms of Rule 134 of

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W.P.(C) No. 5646/2012 : 4 :

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the Kerala Panchayat Building Rules, 2011.

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Accordingly, this writ petition is disposed of directing the Secretary of the Grama Panchayat to take necessary action as is directed and observed above within a period of month from the date of receipt of a copy of this judgment and complete the proceedings within two months thereafter.

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I further make it clear that I am conscious of the fact that a new Building Rules namely Kerala Panchayat Building Rules, 2019 has come into force. But, since the matter was pending before the statutory authority from the year 2012, the provisions of Rules, 2011 or other Rules applicable to the Panchayat consequent to the Kerala Municipality Building Rules made applicable to the Panchayat, would be applicable in this case.

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sd/- SHAJI P. CHALY,

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JUDGE.

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W.P.(C) No. 5646/2012

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: 5 :

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1: TRUE COPY OF DOCUMENT NO.2650/2005/1 OF PATHANAPURAM SRO.

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EXT.P2: TRUE COPY OF PLAINT O.S NO. 235/2002 DATED 22.06.2002 BEFORE THE MUNSIFF'S COURT, PURNALUR.

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EXT.P3: TRUE COPY OF JUDGMENT IN O.S.NO. 278/2007 OF MUNSIFF'S COURT, PUNALUR DATED 16.07.2009.

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EXT.P4: TRUE COPY OF JUDGMENT IN W.P.(C) NO. 5673/2008 DATED 13.01.2010 OF THIS HON'BLE COURT.

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EXT.P5: TRUE COPY OF ORDER IN APPEAL NO.420/2010 DATED 18.06.2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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EXT.P6: TRUE COPY OF COMMON ORDER IN APPEAL NOS. 1054/2010 & 1092/2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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EXT.P7: TRUE COPY OF ORDER IN I.A.NO. 56/2012 IN APPEAL NO. 26/2012 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DATED 11.01.2012.

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EXT.P8: TRUE COPY OF REPLY DATED 03.02.2012 ISSUED BY THE FIRST RESPONDENT PANCHAYAT TO THE PETTIONER.

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EXT. P9: TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 13.12.2011.

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EXT.P10: TRUE COPY OF RECEIPT ISSUED BY THE 1ST RESPONDENT.

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RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS to Judge.

W.P.(C) No. 5646/2012 : 6 :

Muhammed Hussain v. the Secretary, Pathanapuram Grama Panchayath

Case brief

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Muhammed Hussain v. the Secretary, Pathanapuram Grama Panchayath

Case brief

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