IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 27504 of 2006(Y)
1. MOHIDEEN, S/O.K.MUHAMMAD,
... Petitioner
Vs
1. THE TRIBUNAL FOR KERALA LOCAL SELF
... Respondent
2. SECRETARY,
3. K. ABDUL NAZAR,
For Petitioner :SRI.S.RAJASEKHARAN NAIR
For Respondent :SRI.BABU S. NAIR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :15/01/2007
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C)No.27504 of 2006
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Dated: 15th January, 2006
JUDGMENT
Ext.P10 order passed by the 1st respondent, the Tribunal for
Local Self Government Institutions, Trivandrum is under challenge by
the petitioner who was the appellant in Appeal No.205/06 upon which
Ext.P10 order was passed. The third respondent in this Writ Petition is
the petitioner’s own brother and he was the 2nd respondent in the
appeal before the Tribunal. The 2nd respondent is the Secretary of the
Feroke Grama Panchayat. According to the petitioner, as per Ext.P1
partition deed executed in the year 1985 he obtained a total extent of
18 cents of land consisting of two plots, one having an extent of 15
cents and the other three cents. His brother, the third respondent
obtained 27 cents of land described in schedule C of the partition
deed. The petitioner states that there exists an old latrine in his plot
having extent of 3 cents. The latrine was constructed during the time
of his father for use by workers. Presently the latrine is used by the
petitioner’s office staff. But during November, 2004 certain
maintenance works were done to the latrine by the petitioner. It is
claimed that the damaged roof sheet was replaced by a new tin sheet
and that the damages on the walls were also repaired. The petitioner
submits that on the basis of a complaint submitted by the third
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respondent who is on inimical terms with him the 2nd respondent
issued a provisional order under Section 406(2) of the Kerala
Municipality Act directing demolition of the latrine and the shed. To
that order the petitioner submitted reply. But ignoring the reply the
2nd respondent passed final order directing demolition of the latrine.
Against the provisional order and the confirmation order the
petitioner preferred appeal Nos.54/04 and 55/04 before the 1st
respondent-Tribunal. The Tribunal set aside both the orders and
directed the 2nd respondent to evaluate the construction afresh and
proceed against the petitioner under Section 235 W of the Kerala
Panchayat Raj Act if it is found that the construction was in violation
of any provision of law having application within his jurisdiction.
Ext.P2 is copy of that order. Pursuant to Ext.P2, the petitioner
received a notice from the 2nd respondent under Section 235 W of the
Kerala Panchayat Raj Act. To that notice the petitioner submitted
Ext.P3 reply. Thereafter the petitioner received a notice from the 2nd
respondent stating that an Overseer is conducting local inspection on
3.3.2005. The petitioner alleges that without conducting a proper
inspection the Overseer returned from the site. Pursuant to that
Ext.P4 notice dated 22.4.2005 commanding the petitioner to remove
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the latrine within seven days was issued to him. To Ext.P4 the
petitioner submitted Ext.P5 reply. Thereafter the petitioner was called
for a personal hearing. During the hearing the 2nd respondent orally
instructed the petitioner to submit an application for regularisation.
Pursuant to that oral direction the petitioner submitted an application
with a plan for regularisation. But the 2nd respondent surprised the
petitioner by rejecting the petitioner’s application. Thereafter the 2nd
respondent issued Ext.P6 order on 27.6.2005 commanding the
petitioner to demolish the latrine within three days. Aggrieved by
Ext.P6, the petitioner submitted a petition before the Government.
The Secretary to the Government forwarded a copy of the petition to
the Deputy Director of Panchayats seeking a report. In that letter the
Secretary also proposed to give sufficient time to the petitioner for
taking up the matter before the Tribunal. However on 5.2.2006, the
Secretary of the Panchayat issued Ext.P7 notice commanding the
petitioner to remove the latrine within seven days. Against Ext.P7
also the petitioner submitted a petition before the Government. On
that petition the Secretary to the Government instructed the
Panchayat to stop further action pursuant to the said notice. Ext.P8 is
the letter of the Government in this regard. Thereafter the third
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respondent filed W.P.C.No.3412/06 before this court with a prayer to
quash Ext.P8 letter and issue a writ of mandamus directing the
Panchayat to proceed with the order of demolition. This court passed
Ext.P9 judgment quashing Ext.P8. This court however adjourned the
enforcement of Ext.P7 for three weeks and two weeks time was
granted to the petitioner for approaching the 1st respondent-Tribunal.
Thereafter the petitioner preferred Appeal Petition No.205/06 before
the 1st respondent-Tribunal challenging both Exts.P6 and P7. The
Tribunal has by Ext.P10 order dismissed the appeal preferred by the
petitioner. The petitioner submits that after Ext.P10 order was passed
by the Tribunal the third respondent tried to trespass into the
petitioner’s property and the petitioner became constrained to file a
suit (O.S.No.441/2006) for injunction against the third respondent
before the Munsiff’s Court, Kozhikode. In this Writ Petition the
petitioner impugns Ext.P10 order on various grounds and prays that
Exts.P6, P7 and P10 be quashed.
2. The third respondent has filed a detailed counter affidavit. It
is contended therein that Ext.P10 is a well reasoned order warrant no
interference by this court under Article 226 of the Constitution. The
counter affidavit denies the averments and allegations in the Writ
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Petition. Inter alia it is contended that the petitioner’s claim that he
obtained 18 cents of land under Ext.P1 partition deed is incorrect.
Even going by the recitals in Ext.P1 document it will be seen that the
triangular portion upon which the petitioner claims that the latrine
was in existence as to negligible an extent to permit any such
construction. The contention that the latrine was constructed during
the petitioner’s father’s time is stoutly denied. Ext.R3(a) photograph
is relied on in this context to show that it is a new construction. It is
pointed out that the latrine is a new and illegal construction put up by
the petitioner after trespassing into the only way leading to the third
respondent’s house. This way is provided to the third respondent
under Ext.P1 document itself. The latrine was constructed without
obtaining prior permission from the Panchayat. The Panchayat was
convinced that the latrine construction is illegal and thereafter only
demolition order was issued. The Panchayat has not shown any haste
in the matter. Sufficient time was afforded by the Panchayat to the
petitioner to pursue his remedies. The counter affidavit submits that
when the petitioner understood that in the light of Ext.P10 the latrine
will be demolished, he filed a suit O.S.No.441/06 before the Munsiff’s
Court II A, Kozhikode. The intention in filing the suit is to prolong the
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proceedings. The suit is nothing but an abuse of legal process.
Ext.R3(b) is copy of the plaint. In Ext.R3(b) the Panchayat is not
made a party at all. Ext.R3(c) is copy of the written statement filed in
Ext.R3(b) suit. Correct facts have been disclosed and proper
contentions have been raised in Ext.R3(c).
3. To the above counter affidavit, a detailed reply affidavit has
been submitted by the petitioner reiterating his earlier stand. As an
additional document, copy of the Commissioner’s report in
O.S.No.441/06 is produced as Ext.P11. According to the reply
affidavit, the Panchayat is not a necessary party to O.S.No.441/06
since the cause of action which led to that suit was the attempt of the
third respondent to demolish the latrine.
4. Elaborate submissions were addressed before me by
Mr.S.Rajasekharan Nair, learned counsel for the petitioner. He would
refer to the rival pleadings and the various documents placed on
record particularly Exts.P1, R3(a), R3(b), P10 and P11. On behalf of
Mr.C.P.Mohammed Nias, counsel for the third respondent
Adv.Mr.Narayanan would address me. Mr.Narayanan would refer to
Ext.P10 in extenso and submits that there is absolutely no warrant for
interfering with Ext.P10.
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5. Having considered the rival submissions made at the bar and
having scanned Ext.P10 carefully, I am of the view that the learned
counsel for third respondent is correct in his submission that Ext.P10
order of the Tribunal is not liable to be set aside by this court
invoking jurisdiction under Article 226 of the Constitution. I notice
from Ext.P10, that the Tribunal has Marshalled the facts correctly and
on appreciating the evidence which was placed on record by the
parties come to the right conclusion regarding the crux question,
whether the latrine in question was an ancient one or was one
brought into existence recently without obtaining permission from the
Panchayat. This court in extra-ordinary jurisdiction for judicial review
will not be justified in interfering with Ext.P10 which is a well
reasoned order. The challenge against Ext.P10 will fail and the Writ
Petition will stand dismissed, but in the circumstances without any
order as to costs.
srd PIUS C.KURIAKOSE, JUDGE