IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25198 of 2006(Y)
1. T.P.SETHUMADHAVAN,
... Petitioner
2. SYAMALA, W/O.SETHUMADHAVAN, DO.DO.
Vs
1. THE VANIYAMKULAM GRAMA PANCHAYAT
... Respondent
2. THE SECRETARY, VANIYAMKULAM GRAMA
3. THE DISTRICT COLLECTOR, PALAKKAD.
4. THE SUB COLLECTOR, OFFICE OF THE
5. THE TAHSILDAR, OTTAPPALAM.
6. THE VILLAGE OFFICER,
7. THE HEALTH INSPECTOR,
8. KERALA STATE POLLUTION CONTROL BOARD,
9. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
10. SRI.ABRAHAM @ KRISHNANKUTTY,
For Petitioner :SRI.SAJEEV KUMAR K.GOPAL
For Respondent :SRI.SANTHEEP ANKARATH
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :25/06/2008
O R D E R
ANTONY DOMINIC, J
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W.P.(C).NO.25198/2006
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Dated this the 25th day of June, 2008
JUDGMENT
Challenge in this writ petition is against Ext.P12.
Petitioners also seek a declaration that, the construction of
the buildings bearing No.7/438 to 7/441 by the 10th
respondent is in violation of the provisions contained in the
Kerala Panchayat Raj Act and is liable to be demolished.
Consequently, orders directing demolition of the building is
also sought for.
2. Briefly noted, the facts of the case are that, the 10th
respondent is conducting a hotel in one of the rooms in the
building referred to above. According to the petitioners , the
building in question is situated in Purambokku land which
was formed by reclamation of a pond by name
Pothottikulam. It is stated that, by issuing Ext.P1 dated
WP(c).No.25198/2006 2
19.6.1997 the RDO had prohibited any construction in the
land. Petitioner submits that followed by this Ext.P2 was
issued by the Sub Collector in 2006 and again Ext.P3 show
cause notice was issued in August, 2006.
3. According to the petitioner, in violation of all this,
construction was completed and the 10th respondent started
a hotel and that too without obtaining licence from the
Panchayat. Petitioners thereupon submitted Ext.P6
complaint to the Panchayat. They had also complained
that the western boundary of the building is the eastern
compound wall of the petitioner. It is stated that, on Ext.P6
complaint made in 2004, the Secretary of the first
respondent passed Ext.P7 order directing demolition of the
building. Against Ext.P7, Ext.P9 appeal was filed by the 10th
respondent before the Tribunal for Local Self Government
Institutions.
4. During the pendency of the appeal, because of the
threat of implementaion of Ext.P7, the 10th respondent filed
a writ petition before this court as WP(c).No.34392/2004.
WP(c).No.25198/2006 3
By Ext.P8 judgment, that writ petition was disposed of by
this court directing expeditious disposal of the appeal and
further directing that in the meanwhile Ext.P7 shall not be
implemented. Before the Tribunal, Exts.P10 and P11
objections were filed by the Panchayat and the petitioners.
In their objection petitioners contended that the building
had no permit, that it was initially a thatched shed, that
later the roof was changed into a tiled one and that in
2003, the building in the present condition was constructed.
The Tribunal heard the appeal and by Ext.P12 order allowed
the appeal and set aside Ext.P7 order of the Panchayat. It
was clarified that the order will not prevent the petitioners
herein from adjudicating their rights in the civil court.
5. Counsel for the petitioners attacks Ext.P12 mainly on
the basis that the Tribunal erroneously concluded that the
building was constructed in 1997 which was, much before
Section 235(F) of the Act was implemented. According to
the petitioners, the construction of the building in its
present condition was completed only in 2003 and if that be
WP(c).No.25198/2006 4
so, there is noncompliance with Section 235(F).
6. A reading of Ext.P12 order shows that the tribunal
mainly relied on Exts.R3 and R4 assessment registers for
the year 1997-98 to 2001-2002. From these documents, the
Tribunal came to a factual conclusion that the 10th
respondent’s building was shown as a terraced building and
that the building was in existence at the time of the
preparation of the document in March, 1997. It is on that
factual finding that Tribunal found that, Section 235(F) of
the Kerala Panchayat Raj Act, which came into force only
from 1.10.1999 requiring permission of the Panchayat, was
inapplicable to the building in question. In this proceedings,
no material has been made available, to conclude that this
factual finding of the Tribunal is erroneous for any reason.
7. Learned counsel for the petitioners has a contention
that the Panchayat record itself is a fabricated one. But
then, if they had such a case, that should have been
raised before the Tribunal itself, in which case the Tribunal
would have gone into the correctness of that contention.
WP(c).No.25198/2006 5
This has not been done. Therefore, I am not inclined to
permit the petitioners to raise this contention for the first
time in this proceeding. It is also submitted that the
Vigilance and Anti Corruption Bureau had conducted an
investigation and submitted a report suggesting that there is
substance in the allegation of the petitioners that the
records of the Panchayat were fabricated. If that be so,
there is nothing preventing the Panchayat to make
necessary correction in its record and this also has not been
done. Therefore, on the material available, the Tribunal was
perfectly justified in coming to the conclusion that the
building in question was constructed prior to the
introduction of Section 235(F). If that be so, Ext.P12
deserves to be upheld and I do so.
8. Counsel for the petitioners contends that the smoke
emanating from the hotel of the 10th respondent, is creating
nuisance and is directly coming to their bed room. He also
makes reference to Ext.P16 letter from the Pollution Control
Board wherein the Pollution Control Board after enquiry
WP(c).No.25198/2006 6
informed them that there is substance in the complaint
and that the same has been forwarded to the Panchayat for
necessary action. It is stated that, despite all this the
Panchayat is remaining inactive on the complaint. Yet
another plea that is raised by the Counsel for the petitioners
is that the 10th respondent has not obtained licence for the
hotel that he has establised in the building in question. The
Panchayat would also support the plea of the petitioners
that the hotel has no licence. It is pointed out that the
Panchayat by its order dated 26.9.2006, inform the 10th
respondent that they have resolved to grant licence subject
to production of consent from the Pollution Control Board
and an NOC from the Health inspector.
9. To the above submission of the Panchayat, learned
counsel for the 10th respondent replies that such intimation
was given only in April, 2008. He also refers to Ext.R10(b),
a licence granted by the Panchayat for the year 2005-06
and according to him though he had made applications for
renewal of the licence, in view of the pendency of the writ
WP(c).No.25198/2006 7
petition the Panchayat has not passed orders granting
renewal. It is also submitted that, on receipt of the
communication requiring consent of the Pollution Control
Board and NOC from the Health Inspector, the 10th
respondent has filed an appeal before the Standing
Committee of the Panchayat and the appeal is pending.
From Ext.R10(b), it is evident that the 10th respondent had
licence for the year 2005-06 and the renewal is the subject
matter of the appeal. Therefore, at this stage this court will
not be justified in pronouncing on the continuance of the
hotel business. However, if the Pollution Control Board has
forwarded the report as stated by them in Ext.P16, it is a
matter for the Panchayat to take necessary action on the
basis of such communication.
10. The other contention that is remaining to be dealt
with is the claim of the petitioners that the construction
undertaken by the 10th respondent is in the Purambokku
land by reclaiming a pond. Counsel for the 10th respondent
submits that the janmam right in relation to the land in
WP(c).No.25198/2006 8
question was of one Sri. Narayanan Ezhuthachan and in
terms of the Land Reforms Act, Ext.R10(e) purchase
certificate was also issued in 1972. It is stated that the total
extent of the plot was 34 cents and the 10th respondent and
2 others purchased the property by Ext.R10(g) document in
1981. It is stated that, thereafter, among the co-owners the
property was partitioned in 1986 by Ext.R10(h). Hence,
according to him, the contention that the land is
purambokku is incorrect.
11. The learned Government Pleader, on the other
hand, would submit that the property was an unassessed
land in respect of which a purchase certificate was issued to
3 persons in 1972. It is stated that, out of the 34 cents the
10th respondent is in possession of 12 cents of land. It is
stated that, in 1994 the 10th respondent applied for payment
of basic tax and in 1996 the Sub Court issued order
prohibiting change of the nature of the land. It is also
pointed out that in 2006 Ext.R10(m) order was passed by
the Sub Collector directing acceptance of basic tax on a
WP(c).No.25198/2006 9
provisional basis. According to him, the land was filled up
subsequent to 2000 and that complaints in that behalf were
also received from the petitioners and others. It is pointed
out that, a hearing was conducted by the Sub collector and
that when the validity of the purchase certificate was
doubted they have referred the matter to the appellate
authority under the Kerala Land Reforms Act, Trissur, where
the matter is pending.
12. From the above, it is evident that while the
petitioners produced the purchase certificate of 1972 and
Ext.R10(g) and (h) documents of title, the Government have
raised a doubt on the validity of the very purchase
certificate itself. If ultimately the purchase certificate and
the transactions are upheld, the argument that the structure
in question is a purambokku may not survive. Therefore the
correctness or otherwise of the contention now raised by the
petitioners will dependent upon the outcome of the appeal
that is now pending before the appellate authority under
the Land Reforms Act.
WP(c).No.25198/2006 10
13. In view of the above factual position, it may not be
proper for this court to express any thing on merits on this
contention. Therefore, I direct that, if ultimately the land is
found to be Purambokku, it will be open to the appropriate
authority to take appropriate action as is permissible.
The Writ Petition is disposed of as above.
ANTONY DOMINIC
vi JUDGE
WP(c).No.25198/2006 11