Kerala High Court
WP(C)/30163/2010 of AZIYA HASSAN Vs STATE OF KERALA AND OTHERS on 31 December 2012
COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934 WP(C).No. 30163 of 2010 (U) --------------------------- PETITIONER(S): ------------------------ AZIYA HASSAN,W/O.HASSAN, KANIYAMPARAMBIL HOUSE, KOTTANGAL
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934WP(C).No. 30163 of 2010 (U) --------------------------- PETITIONER(S):------------------------ AZIYA HASSAN,W/O.HASSAN, KANIYAMPARAMBIL HOUSE, KOTTANGAL PANCHAYATH, KULATHUR P.O., VAIPOR, PATHANAMTHITTA.
BY SRI.P.SANTHALINGAM,SENIOR ADVOCATE BY ADV. SRI.S.SHARAN
RESPONDENT(S):
----------------------------
1. STATE OF KERALA,REP. BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM-695 001. THIRUVANANTHAPURAM-695 001.
3. KOTTANGAL GRAMA PANCHAYAT OFFICE, KULATHUR P.O., VAIPUR, PATHANAMTHITTA-689 588 REP. BY ITS SECRETARY. KULATHUR P.O., VAIPUR, PATHANAMTHITTA-689 588 REP. BY ITS SECRETARY.
4. SUBAIR KUTTY, PUTHUPARAMBIL HOUSE, VAIPOR P.O., PATHANAMTHITTA-689 588. VAIPOR P.O., PATHANAMTHITTA-689 588.
5. HAMSAKUTTY, PUTHUPARAMBIL HOUSE, VAIPOR P.O., PATHANAMTHITTA-689 588.
R1 & R2 BY GOVERNMENT PLEADER SRI.NOUSAHD THOTTATHIL R3 BY ADV. SRI.T.S.JOHN R4 & R5 BY ADV. SRI.BABU CHERUKARA BY ADV. SRI.P.V.PRAKASAN BY ADV. SRI.ANZAR BASHEER BY ADV. SRI.P.ANTO THOMAS BY ADV. SRI.JESTIN MATHEW
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ON 31-12-2012, THE COURT ON THE SAME DAY DELIVERED
WPC.NO.30163/2010 U
APPENDIX
PETITIONER'S EXHIBITS:
P1:COPY OF THE LETTER NO.A5/571/2010 DTD. 5/02/2010 ISSUED BY 3RD RESPONDENT.RESPONDENT.
P2:COPY OF THE LETTER A1.1114/2010 DTD. 3/04/2010 SENT BY THE 3RD RESPONDENT TO THE PETITIONER.3RD RESPONDENT TO THE PETITIONER.
P3:COPY OF THE REPRESENTATION DTD. 2/07/2010 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.PETITIONER TO THE 3RD RESPONDENT.
P4:COPY OF THE REPRESENTATION DTD. 12/12/2011 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.PETITIONER BEFORE THE 3RD RESPONDENT.
RESPONDENT'S EXHIBITS:
R5(A): COPY OF THE POWER OF ATTORNEY DEED EXECUTED BY 5TH RESPONDENT HAMZAKUTTY IN FAVOUR SHAMSUDEEN C.S. DTD.15/6/10.RESPONDENT HAMZAKUTTY IN FAVOUR SHAMSUDEEN C.S. DTD.15/6/10.
R5(B): COPY OF THE BUILDING PERMIT BY KOTTANGAL GRAMA PANCHAYAT DTD. 17/09/2009.DTD. 17/09/2009.
R5(C): PHOTOGRAPH.
R5(D): COPY OF THE ORDER IN O.S.NO.69/10 IN I.A.NO.445/10 DTD. 6/02/2010OF THIRUVALLA MUNSIFF'S COURT.OF THIRUVALLA MUNSIFF'S COURT.
R5(E): COPY OF THE ORDER IN I.A.NO.370/10 IN O.S.NO.62/2010 OF THIRUVALLA MUNSIFF'S COURT, DTD. 3/2/2010.THIRUVALLA MUNSIFF'S COURT, DTD. 3/2/2010.
R5(F): COPY OF THE APPLICATION FILED BY THE WIFE OF THE 5TH RESPONDENT BEFORE THE TALUK SURVEYOR, MALLAPPALLY DTD. 16/03/2010.RESPONDENT BEFORE THE TALUK SURVEYOR, MALLAPPALLY DTD. 16/03/2010.
R5(G): COPY OF THE JUDGMENT IN WPC.NO.16155 OF 2011 DTD. 16/06/2011 OF THE HON'BLE HIGH COURT OF KERALA.OF THE HON'BLE HIGH COURT OF KERALA.
R5(H): COPY OF THE LAWYER NOTICE DTD. 18/10/2011 BY THE 5TH RESPONDENT.(I.A.NO.16/2012)RESPONDENT.(I.A.NO.16/2012)
R5(H): COPY OF THE AFFIDAVIT AND SKETCH DTD. 27/06/2012 SUBMITTED BY THE TALUK SURVEYOR IN CONTEMPT CASE © NO.816 OF 2012 OF THE HON'BLE HIGH COURT OF KERALA.BY THE TALUK SURVEYOR IN CONTEMPT CASE © NO.816 OF 2012 OF THE HON'BLE HIGH COURT OF KERALA.
R5(I):COPY OF THE EXPLANATION CUM REQUEST DTD. 20/07/2012 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT (KOTTANGAL GRAMA PANCHAYAT SECRETARY).BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT (KOTTANGAL GRAMA PANCHAYAT SECRETARY).
/TRUE COPY/
Kss
P.S.TO JUDGE
A.M.SHAFFIQUE, J.
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Dated this the 31[st] December, 2012
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J U D G M E N T
The petitioner had filed this writ petition seeking adirection to respondents 1 to 3 to stop further constructionof shopping complex by respondents 4 and 5 and also toimplement Ext.P1 stop memo.
2. His complaint is that he is the neighbouring landowner and the boundary of the property belonging to him andthat of respondents 4 and 5 does not have any demarcationand unless the property is demarcated and separatelyshown, there is every chance for respondents 4 and 5committing trespass into his property and without his consent,the construction is being carried out.
3. It is also his case that despite the Panchayat issuingstop memo as Ext.P1 the construction is being continued.
4. Respondents 4 and 5 have filed counter affidavit andalso additional counter affidavit. According to them on thebasis of the demand made by the Secretary in terms of Ext.P1,already the property had been measured and a survey plan is obtained and the same had been produced before the Secretaryof the Panchayat. According to respondents 4 and 5, they havenot committed any act of trespass and the petitioner has nolocus standi to challenge the construction of the building whichis being constructed in terms of a valid building permitissued by the Panchayat.
5. It is not in dispute that respondents 4 and 5 startedconstruction on the basis of a valid permit issued by theMunicipality. The only question is whether boundaries of theproperty as shown in the plan indicates any trespass intothe property of the adjacent owner, since the boundary is lyingwithout any demarcation.
6. Since there is a dispute regarding the aforesaid factsand circumstances, it is for the authorities to consider whethera fixation of the boundary is required before permittingrespondents 4 and 5 to construct the building. Since it iscontended by learned counsel appearing for respondents 4and 5 that all necessary particulars had been produced beforethe Secretary of the Panchayat for withdrawing the stop memo,I am of the view that this writ petition can be disposed of with the following direction:
The 3[rd] respondent shall consider the complaint of thepetitioner and also the objection submitted by respondents 4and 5 within a period of one month from the date of receipt ofa copy of this judgment and after hearing the parties the ordershall be communicated to the petitioner as well asrespondents 4 and 5.
A.M.SHAFFIQUE, JUDGE.
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