IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 23107 of 2007(A)
1. ST.SEBASTIAN HIGH SCHOOL, CHITTATTUKARA,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE SECRETARY,
... Respondent
2. ELAVALLY GRAMA PANCHAYATH, ELAVALLY,
3. SECRETARY, ELAVALLY GRAMA PANCHAYATH,
4. DISTRICT EDUCATIONAL OFFICER,
For Petitioner :SRI.RAJIT
For Respondent :SRI.P.SANTHOSH (PODUVAL)
The Hon'ble MR. Justice K.M.JOSEPH
Dated :09/08/2007
O R D E R
K.M.JOSEPH, J.
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W.P.(C).No.23107 OF 2007
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Dated this the 9th day of August, 2007
JUDGMENT
Petitioner has approached this court seeking to quash
Ext.P4 notice issued by the third respondent. Petitioner seeks a
mandamus to the second and third respondent not to create
obstacles in the construction work of the building carried out by
the petitioner.
The case of the petitioner in brief is as follows:
Petitioner’s school comes under the Thrissur Arch Diocese
Corporate Educational Agency. Petitioner’s school is established
in the year 1904 and it is one of the oldest school in the State of
Kerala. Petitioner decided to construct a three storied building in
the property belonging to the school to cater the need of the
students as well as the requirements of the corporate agency.
Before undertaking the construction, petitioner submitted an
application seeking permission for the construction of a three
storied building. Ext.P1 no objection certificate was issued on
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29/08/2006 certifying that no permission is required for
construction of a non-residential building in the property of the
petitioner. Pursuant to Ext.P1, petitioner submitted an
application and got Ext.P2 permission from the District
Educational Officer on 15/01/2007 to construct the building as
per the specification in the K.E.R. Pursuant to Ext.P1 and P2
petitioner has entrusted the work of the building to a contractor
who commenced the construction work in January 2007 and
completed the entire structure of the ground floor upto the roof
and what remains is the concreting of the roof. Ext.P3 is the
photographs of the building constructed. It is stated that the
second respondent is presently been administered by the CPI (M)
and as a result of the on going dispute between the Government
and the corporate agencies with regard to the admission to
professional courses, the second respondent has been trying to
see that the construction work of the petitioner’s school is
brought to a stand still. Petitioner has been rendering yeoman
service to the students community in particular and local people
at large. Ext.P4 is the stop memo requiring the petitioner to stop
all construction activities on the ground that as per Circular No.
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24136/R.A 1/07 dated 20-06-2007 building rules have come into
force in the Grama Panchayat and the construction is without
obtaining permit from the Panchayat. Ext.P5 is the circular dated
20/06/2007. According to the petitioner the circular is not
applicable in this case. As the construction of the building is to be
completed urgently, considerable raw materials such as cement
and sand are stored in open, it is stated. 250 bags of cement
along with sand and metal are presently being stored in the site
for the construction of the building and heavy loss is caused
because of the construction being stopped, it is stated.
Petitioner submitted Ext.P6 representation.
2. Counter affidavit is filed by the respondent-Panchayat
contending that pursuant to Ext.P4 circular, notices were
circulated and published in the Panchayat intimating the public
about the fact. Ext.R2(a) is the notice dated 18-06-2007.
Pursuant to that, petitioner submitted Ext.R2(a). Inspection
conducted on 02/07/2007 revealed that pits and trenches were
dug so as to provide basement to the pillars to be constructed
and materials were found in the premises. It is stated that it was
instructed to the petitioner that only after obtaining the permit
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any further construction could be effected to which the petitioner
had agreed. Petitioner submitted application in the prescribed
form for permit as Ext.R2(C). On 16/07/2007 it was found that
construction is going on. On 16/07/2007 Ext.P4 was issued. As
petitioner was not in station on 16/07/2007 it could not be
served on the same day and it was sent by registered post.
There is reference to Ext.R2(e) letter sent to the sub Inspector.
Respondents have also produced photographs as Ext.R2(f) and
stated that petitioner has not approached this court with clean
hands.
3. Petitioner has filed reply affidavit. Therein it is
interalia stated that by Ext.R2(a) all those who have started
construction but completed are required to furnish the details of
the building by 30/06/2007. So petitioner submitted Ext.R2(b)
on 29/06/2007 in which he has stated that the construction has
reached the first floor and that is not an application for permit. It
is stated that due to heavy rain all the construction work was
stopped by the 1st week of July and due to heavy rain the District
Collector had already declared 4th, 5th, 6th and 18th as holidays for
all the schools in Thrissur district and there was no question of
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continuing the construction work during July 2007. It is stated
that the statement in the 4th paragraph of the writ petition that
construction was started in January 2007 related to preliminary
work of clearing the area, digging the basement portion etc. It is
stated that laying foundation stone of the school building was
performed by the Arch Bishop of Thrissur District on
16/03/2007. Actual construction in full swing was started from
16/03/2007, it is stated.
4. I heard counsel for the petitioner and the learned
Advocate General and the counsel for the Panchayat also.
5. Learned counsel for the petitioner submits that the
building rules were brought into force in respect of Panchayaths
on 06/06/2007, but Ext.P5 circular was published only on
20/06/2007. In Ext.P5 circular there was a requirement that the
fact of the building rules being brought into force should be
published in the notice board. Ext.R2(a) is dated 18/06/2007 i.e.
even prior to the publication of the circular on 20/06/2007, he
points out. Petitioner would reiterate his case and submit that
petitioner obtained no objection certificate in the year 2006 and
the permission from the DEO in January 2007 and the
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construction was started in full swing after the inauguration on
16/03/2007 by the Arch Bishop. Learned counsel for the
petitioner submits that clause 5 of Ext.P5 circular will prohibit
construction without permit only in respect of cases where
construction has not progressed beyond the ground level. He
would invite my attention to the materials produced to contend
that there can be no doubt that the construction has certainly
reached the ground level and infact as stated in Ext.R2(b) dated
29/06/2007 it had reached upto the level of the first floor. This
is reiterated in Ext.R2(c) also, he contends. Ext.R2(c) was given
only for regularisation and as asked for by the respondent he
submitted. It is virtually inconceivable to think that construction
would not have reached the stage above the ground level as on
20/06/2007 when the circular was issued having regard to the
fact that construction is for a three storied building, he contends.
Counsel for the petitioner submits that this is a case of
harassment to the institution by the powers that be and even
though it is a question of fact, the materials on record would
leave no one in doubt that the construction made by the
petitioner had reached above the ground level as on 20/06/2006
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which is the date of Ext.P5 circular.
6. Learned Advocate General would submit that what is
involved in this case is essentially a factual dispute namely as to
whether the construction has reached upto the stage or not as
contemplated in Clause 5 of Clause II in Ext.P5 and this court
may not be invited to decide this issue. He would submit that
Ext.P4 has been issued under Rule 19 of the Kerala Municipal
Building Rules and he would further submit that petitioner has a
right of appeal before the Tribunal for local self Government
under Rule 160 of the Kerala Municipality Building Rules under
Clause 6 thereof. He would submit that the Tribunal would be
better equipped with to deal with the factual dispute raised and
enter finding. He invited my attention to the pleadings to show
that the case of the petitioner is that clause 5 of Clause II in
Ext.P5 circular is not applicable to the petitioner and it is
therefore purely a factual question.
7. Learned counsel for the Panchayat would also reiterate
his contentions. He would further submit that the conduct of the
party does not entitle him to the discretionary jurisdiction under
Article 226 of the Constitution. He would point out that the
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construction is stated in the writ petition to have been started in
January 2007, but in Ext.R2(b) it is stated to have been started
on 16/03/2007. He would also submit that petitioner had in fact
submitted Exts.R2(b) and ( c) which are not referred to in the
writ petition. It is explained by the counsel for the petitioner that
Ext.R2(C) was the application for regularisation.
8. It is to be noted that there is a circular issued as
Ext.P5 by the Government. The petitioner has not challenged the
circular as such. Ext.P4 notice was based on the circular citing
clause 5 thereof. Therefore, I am not called upon to decide the
validity of the circular. The Panchayat also supports the action
under the terms of the circular which is not under challenge.
The question therefore boils down as to whether clause 5 in
Ext.P5 circular is attracted or not. I would think that, that is
essentially a factual dispute. I would think that it may not be
appropriate for me to consider this issue in the totality of facts of
this case and I would think that petitioner is to be relegated to
the pursuit of the alternate remedy provided under Rule 160 of
the Kerala Municipality Building Rules as contended by the
learned Advocate General.
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In such circumstances petitioner is to be relegated to the
pursuit of appeal which ofcourse petitioner has to do within the
period of limitation. Accordingly, the writ petition is disposed of
relegating the petitioner to the pursuit of the remedy provided
under Rule 160 of the Kerala Municipality Building Rules. As I am
relegating the petitioner to pursue the alternate remedy, it is
open to the petitioner to seek interim relief therein and if any
application for interim relief is filed, the Tribunal will consider the
application and take a decision thereon without any delay.
(K.M.JOSEPH, JUDGE)
sv.
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