IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1478 of 2008()
1. T.K. KUMARI KAMALAM,
... Petitioner
Vs
1. A. SAMIKUTTY, S/O.IMBICHIKUTTY,
... Respondent
2. STATE OF KERALA, REP. BY THE
3. CHIEF TOWN PLANNER,
4. THE SECRETARY,
5. THE TRIBUNAL FOR LOCL SELF GOVERNMENT
For Petitioner :SRI.B.G.BHASKAR
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :13/08/2008
O R D E R
H.L.DATTU, C.J. & A.K.BASHEER, J.
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W.A.No.1478 OF 2008
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Dated this the 13th day of August 2008
JUDGMENT
A.K.BASHEER, J.
The genesis of the dispute in this writ appeal has essentially stemmed from
the clamour between the appellant and respondent no.1 over the title and
possession of the property situated in Survey No.50/2B of Pantheerankavu Village
in Kozhikode District. Appellant and respondent no.1 are stated to be
neighbouring property owners.
2. It is on record that the appellant had started construction of a multi
storied building for a Nursing College in the said property after obtaining a
building permit from Olavanna Grama Panchayat. Respondent no.1 raised
objection against the construction before the Panchayat. After considering the
objections and hearing the parties, the Panchayat found that there was some merit
in the contention raised by respondent No.1 that the appellant was infact making
the construction in his property. Therefore, a stop memo was issued by the
Panchayat directing the appellant not to proceed with further construction. After
issuance of the stop memo also the Panchayat had heard the parties yet again, and
thereafter an order was passed directing the appellant to get the property measured
by the Taluk Surveyor. It was further directed that the construction of the
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building be stopped till the survey was completed.
3. The above order was challenged by the appellant before the Tribunal for
Local Self Government Institutions. The Tribunal allowed the appeal and set
aside the order issued by the Panchayat holding that the Panchayat had no
authority to issue a stop memo, since the dispute was essentially touching upon the
title to the property. However, the Tribunal also held that the appellant was not
entitled to make any construction in R.S.No.50/2B since the building permit
obtained by him was only in respect of R.S.50/2A2/2B. It was further held that
respondent No.1 will have to seek his remedy before the civil court, if according to
him, the appellant had committed trespass.
4. The above order passed by the Tribunal was challenged by respondent
No.1 before this court under Article 226 of the Constitution of India contending,
inter alia, that the appellant would not be entitled to continue with the construction
of the building in terms of the permit issued by the Panchayat, especially, since
the permit was obtained by her misleading the Panchayat and also since the dispute
with regard to the title to the property had not been decided as yet.
5. The learned Single Judge took the view that a solution to the vexed issue
can be found only by identifying the property covered under the building permit,
after getting the property measured with the help of Surveyor. Learned Judge also
noticed that the parties had no objection to the above course of action. It was
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therefore directed that the plot covered under the permit issued by the Panchayat to
be identified after measurement of the disputed property. It was further held that
the appellant shall not be entitled to make any construction in R.S.50/2B.
6. The said judgment is impugned in this writ appeal contending inter alia
that the interdiction contained in the judgment from making any construction in
Survey No.50/2B will result in irreparable hardship to the appellant. It is pointed
out by the learned counsel for the appellant that the learned Single Judge was not
justified in restraining the appellant from continuing with the construction since
the Panchayat had issued the permit after scrutiny of the relevant records and also
after making local inspection in compliance of the statutory formalities.
7. Learned counsel for respondent No.1 submits that the writ appeal has in
fact become infructuous in as much as the directions contained in the judgment
had already been implemented. The Taluk Surveyor had measured the property in
the presence of the parties and prepared a sketch. He further points out that
immediately after the pronouncement of the judgment in the writ petition, the
appellant had rushed to the civil court and obtained an order of injunction.
8. We do not propose to deal with the issue any further at this stage since
admittedly a dispute does exist between the appellant and respondent No.1 as
regards the above property. Learned counsel on either side would agree that a
final solution to the vexed issue relating to the title to the property, has to be
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ultimately resolved by a competent civil court.
9. Having heard learned counsel for the parties and having perused the
materials available on record, we have no hesitation to hold that the imbroglio can
be sorted out only by a competent civil court. The only apprehension of the
appellant is that the interdiction in the judgment restraining her from making any
construction in Survey No.50/2B may act as a fetter when the issue relating to title
is considered by the civil court at a later stage. We do not find any reason why the
observation made by the learned Judge in this regard shall trammel the civil court
from deciding the issue of title, if and when such a suit is filed by either of the
parties.
Therefore, we dispose of this writ appeal making it clear that the ultimate
decision on the question of title in respect of the property in which the alleged
construction has been made, shall be taken by a competent civil court. Status quo
as on today shall be maintained by the parties and neither of them shall make any
construction without the permission of the civil court.
(H.L.DATTU)
CHIEF JUSTICE
(A.K.BASHEER)
JUDGE
jes