Rojan Xavier vs State of Kerala

A.M. Shaffique, J.—Both the appeals are filed by the writ petitioner against a common judgment in W.P. (C) No. 15229 of 2014 and W.P. (C) No. 18560 of 2014 dated 14.08.2014.

The issues in these writ petitions relate to the construction of a building by the 5th respondent in W.A. No. 1286 of 2014. The contention raised by the petitioner in W.P. (C) No. 15229 of 2014 was that the 5th respondent was constructing the building in violation of the plan and permit issued by the Panchayat and in gross violation of the Kerala Panchayat Building Rules. W.P. (C) No. 18560 of 2014 was filed by the 5th respondent in W.P. (C) No. 15229 of 2014 challenging Ext. P7, a stop memo issued by the Panchayat with regard to the construction of the building aforesaid.

The parties are referred to as described in W.A. No. 1286 of 2014. The facts involved in the above cases disclose that the 5th respondent has got sanction of a plan from the Panchayat for construction of a residential building. While construction was going on, there was a dispute with regard to the pathway in front of the said site. The petitioners in these cases are brothers and the dispute in regard to the pathway is pending before the Civil Court. It is submitted by both the parties that several issues are pending between the brothers with regard to the property and other matters.

The 5th respondent has a case that certain document which was relied on by the appellant describing the pathway as having 12 feet width is false and such issue was pending consideration before appropriate authorities. In the meantime, a report came to be filed as Ext. R3(c) by the Assistant Engineer of the Panchayat, wherein he has stated that as per the building plan, the 5th respondent had shown the width as 3.35 meters in front yard. As per Clause 27(3) of G.O. (MS) No. 41/11/LSGD dated 14.02.2011, the average front yard distance should be 3 meters. Taking into consideration the site plan and the existing road, the average distance is only 1.70 meters in the front yard. According to the appellant, it is in gross violation of the Building Rules and therefore 5th respondent is not entitled to proceed with the construction.

Learned senior counsel for the appellant relies upon Section 235W, especially sub-section(1)(iii) and its proviso, to indicate that the regularisation of the construction can be made only if construction of the building does not violate the provisions of the building rules. However, it is the argument of the learned counsel for the appellant that learned Single Judge, while disposing of the writ petitions, has virtually allowed regularisation by directing the Secretary of the Panchayat to pass appropriate orders permitting the petitioner to continue with the construction on certain conditions. The appeals have been filed only with reference to the aforesaid observation of the learned Single Judge. The operative portion of the judgment reads as under:

"In the light of the said undertaking given by the learned senior counsel for the petitioner in W.P. (C) No. 18560/2014, this Court is of the view that it is not necessary to ask the said petitioner to seek for remedies before the appellate authority; and therefore, these writ petitions are disposed of as under:

a) The petitioner in W.P. (C) No. 18560/2014 shall make an application for regularization of the construction before the respondent panchayat within a period of two weeks from the date of receipt of a copy of this judgment. This shall be without prejudice to the petitioner''s right to take up all his contentions regarding the width of the pathway before the Munsiff''s Court, Kattappana.

b) In the event of filing such an application for regularization, the respondent panchayat shall consider the same and pass appropriate orders, permitting the petitioner in W.P. (C) No. 18560/2014 to continue with the construction on condition that the petitioner shall either demolish the construction or realign the pathway making available sufficient properties belonging to the said petitioner on either side of the pathway if it is ultimately found by the civil court that respondents 3 and 4 n W.P. (C) No. 18560/2014 have the right to sue a 12 feet wide pathway as alleged by them."

On the other hand, learned counsel for the 5th respondent submits that he was constructing a building after demolishing the earlier construction and if at all there is any violation, he is always willing to provide sufficient space to comply with the Building Rules or he is willing to demolish the construction to that extent of requiring sufficient front yard.

It is having regard to the aforesaid submission made by the learned counsel for the 5th respondent that the learned Single Judge had directed as above. Learned counsel for the Panchayat would submit that it is based on Ext. R3(c) report that the stop memo had been issued by the Panchayat.

Having regard to the aforesaid submission and having perused the judgment of the learned Single Judge, it is clear that several disputes are pending between 5th respondent and the appellant with regard to various issues. While disposing the aforesaid matters, the learned Single Judge had consciously directed the Panchayat to consider and pass appropriate orders permitting the 5th respondent to continue with the construction on certain conditions. It is not a case where the Panchayat had been directed to regularise the construction. Direction issued was grant permission to proceed with the construction on certain conditions. One of the conditions is that the 5th respondent shall either demolish the construction or realign the pathway making available sufficient properties belonging to the 5th respondent on either side of the pathway if it is ultimately found by the civil court that respondents 3 and 4 in W.P. (C) No. 18560 of 2014 have a right to use a 12 feet wide pathway. Apparently, this is an issue which is pending consideration before the civil court. The learned Single Judge has passed the order taking into consideration the pending disputes between the parties. When a discretion has been exercised by the learned Single Judge, it may not be proper from this Court to interfere with the same. Therefore, we do not think it necessary to exercise the appellate jurisdiction to interfere with the decision of the learned Single Judge.

In the aforesaid circumstances, as no grounds are made out to interfere, the appeals are dismissed.