The petitioner has filed this writ petition seeking the following reliefs:- i) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to stop the illegal construction carryout by the 2nd respondent;
ii) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to conduct an enquiry on Exhibit P5 complaint and pass orders;
iii) to call for the records leading to Exhibits-P8, P9, P10, P11 and P12 and set aside Ext-P9 No Objection Certificate issued by the 1st respondent;
iv) to grant such other reliefs as this Honourable Court may deem fit in the circumstances of this case.
2. According to the petitioner, the second respondent is carrying on his construction encroaching upon a road which is the only means of access to his house.
According to the counsel for the Panchayat, the construction has been effected in violation of the Kerala Panchayat Building Rules. Therefore, a stop memo has been issued. The stop memo has also been enforced and the counsel for the Panchayat submits that, no construction is being carried on at present. The counsel for the petitioner does not dispute the above fact.
3. According to the counsel for the second respondent, he has already submitted his objections to the stop memo. His objection is that, he is the owner of the property over which the petitioner is claiming a right of way. As per the title deed of the petitioner, only a right to use the property as his means of access has been granted. The second respondent is still the owner thereof. Therefore he asserts that, he is entitled to effect the construction as proposed by him.
4. The counsel for the petitioner points out that, in violation of the stop memo, the second respondent has carried on his construction and the same has progressed considerably. Therefore, if the construction is found to be unauthorised, action would have to be initiated by the Panchayat to demolish the illegal construction also.
5. Having heard the counsel appearing for the respective parties, I am of the view that, it is for the Panchayat to decide after conducting an inspection of the construction as to whether, the construction is in accordance with the Panchayat Building Rules, or not. If the construction is not in accordance with the Building Rules, necessary action to demolish the construction would have to be initiated. The second respondent has already submitted his objections to the stop memo issued by the Panchayat. The Panchayat shall consider the objections of the second respondent also before passing final orders in the matter under Section 235W of the Kerala Panchayat Act, 1994.
This writ petition is therefore disposed of directing the first respondent to consider the objections of the second respondent, to afford an opportunity of being heard to the petitioner as well as the second respondent, to conduct an inspection of the construction that has been effected by the second respondent and to finalise the proceedings initiated as per the stop memo already issued under section 235W of the Act. The proceedings shall completed and orders shall be issued, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment.
Sd/-
K.SURENDRA MOHAN, JUDGE kkj