K.M.Awarankutty vs State Of Kerala

Viju Abraham, J

The petitioner aggrieved by Ext.P10 order issued by the 2nd respondent, whereby the petitioner was directed to remove the illegally constructed temporary shed.

Petitioner is a Mutavali of a Wakf property. The case of the petitioner is that by Ext.P1 sale deed, the property, in which the unauthorised shed is alleged to be constructed, was sold by one Kammu to the Mutavali of the Parputhadam Juma Masjid. There was a pathway passing between the Masjid and the scheduled property and when the pathway was considered from widening, the committee decided to surrender the property from the southern part of the scheduled property in Ext.P1 and the road widening was possible only because of the surrender of land from the Masjid property. While so, there was a need to construct a shed to accommodate the vehicles of the devotees who come for offering their prayers in the Masjid. Thereupon, the committee unanimously decided to construct a temporary shed in the open space between the boundary wall and already existing building in the scheduled property in Ext.P1 deed. Thereafter, constructions were undertaken. The specific case of the petitioner, relying on Ext.P4 photographs is that the steel sheet roofing has been done on the steel pillars appended to the boundary wall and the same is within the bounds of the said property, and there is no encroachment on the public road. While so, the petitioner was issued with Ext.P5 notice under Section 235W(1) of Kerala Panchayath Raj Act, alleging that the petitioner has made an illegal construction. The petitioner along with the other committee members personally met the 2nd respondent and explained their stand and thereafter, no further action was taken pursuant to Ext.P5 notice, which was issued as early as in 2019. While so, the 3rd respondent approached the Ombudsman for Local Self Government, Thiruvananathapuram alleging unauthorised and illegal construction in Ext.P1 scheduled property in violation of the Kerala Panchayath Raj Act and Rules encroaching upon public road. Thereafter, Ext.P9 order has been issued by the Ombudsman for Local Self Government Institution, wherein a direction was issued to the Secretary to hear the complainant as well as the committee of Mahal and if it was found that there is an unauthorised construction, the Secretary shall take steps to remove the unauthorised construction. Thereafter, Ext.P10 notice was issued under Section 235W(1) pursuant to the direction issued by the Ombudsman for Local Self Government Institution.

In the writ petition, the petitioner has raised various contentions based on the provisions of the Kerala Panchath Raj Act as well as the provisions of the Kerala Panchayath Building Rules, and contended that the construction undertaken by the petitioner is not in violation of the Act and Rules and that Ext.P10 notice has been issued without taking into consideration the true facts and circumstances. Therefore, the petitioner seeks for quashing Exts. P9 and P10. A perusal of Ext.P9 order issued by the Ombudsman for Local Self Government Institution reveal that the Ombudsman has not entered into any finding as to the rival contentions of the parties, but only directed the Secretary to look into the matter, issue notice and also afford a hearing to the parties concerned, and take a decision in accordance with law. Therefore, I am of the opinion that Ext.P9 order does not suffer from any infirmity warranting interference in as much as the only direction issued by the Ombudsman was to hear and take a decision in the matter. It is seen that the earlier notice Ext.P5 was issued as early as in 2019 and going by the pleadings, no further action was taken pursuant to Ext.P5 notice and Ext.P10 notice was issued only pursuant to the order issued by the Ombudsman. Therefore, I am inclined to dispose of the writ petition with the following directions:

The petitioner shall prefer his objection along with the supporting documents to Ext.P10 notice which is only a provisional order and the 2nd respondent Panchayath shall finalise the proceedings with notice to the petitioner as well as the 3rd respondent and also after affording an opportunity of being heard, at any rate, within a period of two months from the date of receipt of a copy of this judgment. It is made clear that, the specific contention of the petitioner that since he has given free surrender of land for the purpose of road widening, he was exempted from providing setback, shall also be duly considered by the Panchayat. It is made clear that the interim order granted in this case will continue to be inforce till a decision as directed above is taken by the 2nd respondent.

With the above said direction, this Writ Petition is disposed of.