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M.K.MOIDEEN, MUSALIAR KARUMKATTIL versus STATE OF KERALA, REPRESENTED BY T6HE

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M.K.MOIDEEN, MUSALIAR KARUMKATTIL v. STATE OF KERALA, REPRESENTED BY T6HE - WP(C) No. 32013 of 2003 [2006] RD-KL 3201 (12 December 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 32013 of 2003()

1. M.K.MOIDEEN, MUSALIAR KARUMKATTIL
... Petitioner

Vs

1. STATE OF KERALA, REPRESENTED BY T6HE
... Respondent

2. THE SECRETARY, OORAKAM GRAMA PANCHAYATH

3. M.K.AHAMMED HAJEE, M.K.A. MANZIL,

For Petitioner :SRI.K.R.KURUP

For Respondent : No Appearance

The Hon'ble MR. Justice KURIAN JOSEPH

Dated :12/12/2006

O R D E R

KURIAN JOSEPH, J.

W.P(C)No.32013 of 2003

Dated this the 12th day of December, 2006



JUDGMENT

The writ petition is filed with the following prayers:-

i) issue a writ of mandamus or other appropriate writ, direction or order directing the 2nd respondent to demolish the entire unauthorised construction carried out by the 3rd respondent in RS 400/1 of Ooragam Village in Ward 6 of Ooragam Grama Panchayat, forthwith; ii) to declare that Ext.P5 order passed by the 1st respondent has ceased to operate in view of the mandate of Rule 5(6) of the Kerala Building (Regularisation of Unauthorised Cosntruction and Land Development) Rules, 1999 and that thereby Ext.P3 order of the Govt. stands revived; iii) to direct the 2nd respondent to implement Ext.P3 order of the Govt. by demolishing the unauthorised construction carried out by the 3rd respondent, in RS 400/1 of Oorakom Village in Ward 6 of Oorakam Grama Panchayat, in violation of the provisions of the Panchayat Raj Act. In view of the amendment as per order dated 21-1-2004 in I.A.No.681/2004 there is also a challenge on Ext.P7 government order. It is seen from Ext.P5 government order passed pursuant to Ext.P4 judgment in O.P.No.3954/2000 that the Government had directed the W.P(C) NO.32013/2003 3rd respondent to demolish the cantilever sunshade overhanging into the front set back. According to the petitioner even the said order does not have any relevance in view of Rule 5(6) of the Kerala Building (Regularisation) of Unauthorised Construction and Land Development) Rules, 1999 and Ext.P3 order dated 10-1-2000 of the Government is to be revived. As per the said Ext.P3 order the Panchayat was directed to take steps to ensure that the building constructed by the 3rd respondent is in proper compliance with the mandate under Section 220(b) of the Kerala Panchayat Raj Act. During the pendency of the writ petition it is seen that Ext.P7 order was passed by the Government relieving the 3rd respondent of the burden to demolish even the sunshade. It is submitted that the said order was passed without notice to the petitioner, though it is clearly discernible from the facts that it is at the instance of the petitioner only steps were taken by the Government to demolish the unauthorised construction. It is also seen that at the time of passing Ext.P5 petitioner was offered an opportunity for hearing.

2. There is no counter affidavit. After having heard learned counsel for the petitioner and also the learned Government Pleader I W.P(C) NO.32013/2003 am of the view that the matter is to be reconsidered by the Government with notice to the petitioner. That the Government has not properly applied its mind is also clear from Ext.P4 order itself wherein the 3rd respondent has been directed to execute an agreement with the Municipality. The local authority involved in the case is the second respondent Grama Panchayat and not the Municipality. Therefore, I quash Ext.P7. The matter is remitted to the first respondent with a direction to consider the matter with notice to the petitioner and respondents 2 and 3 and pass appropriate orders in accordance with law within a period of four months from the date of production of a copy of this judgment. Since there is already a direction to consider the matter afresh it will be open to the parties to take all available contentions before the first respondent. The fate of the numbering of the building of the 3rd respondent will depend on the order thus passed by the Government. The writ petition is disposed of as above.

(KURIAN JOSEPH, JUDGE)

ahg. W.P(C) NO.32013/2003


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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