IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1762 of 2010()
1. MADAKATHARA GRAMAPANCHAYAT,
... Petitioner
Vs
1. JAYAPRAKASH.T., S/O.BHARATHI AMMA,
... Respondent
For Petitioner :SRI.M.ANIL KUMAR
For Respondent :SRI.E.K.NANDAKUMAR
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :04/11/2010
O R D E R
J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.
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W.A. No. 1762 of 2010
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Dated this the 4th day of November, 2010
JUDGMENT
J.Chelameswar, C.J.
The respondent in W.P.(C) No.22338 of 2010 is the
appellant herein, aggrieved by the judgment dated 7th September,
2010. The sole respondent herein preferred the above mentioned
writ petition.
2. The respondent herein had earlier approached this
Court by way of W.P.(C) No.15214 of 2010 with a grievance that an
application filed by him seeking a building permit under the
provisions of the Kerala Municipality Building Rules, 1999 was not
being considered by the appellant herein and therefore sought a
direction to the appellant herein to consider his application in
accordance with law.
3. Inspite of service of notice, the appellant herein did
not choose to appear and contest the matter. The matter had to be
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decided by this Court eventually ex parte against the appellant
on the basis of the materials and averments placed before this
Court by the writ petitioner/respondent herein. The respondent
herein, it appears, submitted before this Court that his
application for building permit is not being finalized on the
ground that the predecessor in title of the respondent was
required under law to relinquish the right, title and interest in a
certain property belonging to him and in view of such non-
relinquishment the application of the respondent herein was not
being considered. In the absence of any rebuttal to the said
statement the Court accepted the said statement and directed the
appellant herein to consider the application of the respondent
herein without reference to the relinquishment referred to above.
4. The appellant herein subsequently moved a
review petition in W.P.(C) No.15214 of 2010 being
R.P.No.580 of 2010. The said review petition was disposed of.
Unfortunately, a copy of the order passed in the said review
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petition is not made available to us. But, from the judgment
under appeal it appears that the appellant only sought in the
review petition for deletion of the second paragraph of the
judgment wherein it was recorded that inspite of service of
notice the Panchayat had not entered appearance. It does not
appear from the materials on record that the appellant herein
ever contended in the review petition that the application of the
respondent herein cannot be considered in view of the fact that
there was no approved lay-out in existence covering the area
where the respondent proposes to construct the building. If
only the appellant had taken such a ground and invited decision
on the issue, it is known as to what would have been the result
of the earlier writ petition, i.e. W.P.(C) No.15214 of 2010. The
appellant accepted the finality of the said judgment and now
rejected the application of the respondent by the order impugned
in W.P.(C) No.22338 of 2010 on the ground that there was no
approved lay-out for the area wherein the respondent seeks to
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construct a building.
5. By the judgment under appeal the learned Judge
held as follows:
“So long as Ext.P2 judgment stands, the Panchayat
cannot be heard to contend that unless the lay out of the
internal roads, which provide access to the petitioner’s land
wherein he proposes to construct the building, is approved,
a building permit cannot be issued. In such circumstances I
am constrained to hold that Ext.P4 order passed by the
Secretary of the respondent Grama Panchayat is one which
is really in contempt of this Court.”
6. Though not expressly, the leaned Judge in
substance held that the appellant herein is barred by the doctrine
of constructive res judicata or a principle akin to it from raising
such a contention as it was not their case in the earlier round of
litigation between the appellant and the respondent. We do not
see any reason to interfere with the conclusion reached by the
learned Judge. On the other hand, we are of the opinion that the
appellant is guilty of callousness and negligence in the conduct
of litigation and the present appeal is a sheer abuse of the
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process of the Court. The writ appeal is therefore dismissed at
the admission stage with costs quantified at Rupees ten
thousand.
J.Chelameswar,
Chief Justice
P.R.Ramachandra Menon,
Judge
vns