The petitioner was the appellant in Appeal No.132 of 2013 on the files of the Tribunal for Local Self Government Institutions. That appeal was preferred by the petitioner mounting challenge against Ext.P14 order dated 12.12.2012 passed by the first respondent. The grievance of the petitioner is against the construction made the 7th respondent herein/the second respondent therein in his neighbouring property. The contention of the petitioner is that the said construction was effected in violation of the provisions under section 220(b) of the Kerala Panchayat Raj Act (for short the 'Act') and therefore, the construction to the extent made in violation of the said provisions is liable to be demolished. Such a contention was taken up based on the allegation that construction was effected without leaving a distance of 3 metres from the boundary of the land abutting the national highway. Earlier, raising such allegations, he preferred Ext.P1 complaint before the first respondent. Ultimately, the complaint preferred by the petitioner was dismissed as per Ext.P14 finding that the foundation of the building in question was completed in the year 1993 and in such circumstances, no interference is called for at the instance of the petitioner. As noticed hereinbefore, Appeal No.132 of 2013 was preferred before the Tribunal for Local Self Government Institutions against Ext.P14 order and ultimately, dismissed the same and confirmed Ext.P14 as per Ext.P18 order. This writ petition has been filed challenging Ext.P18.
2. I have heard the learned counsel for the petitioner, learned standing counsel appearing for respondents 1 and 2 and also the learned Government Pleader. A perusal of Ext.P18 would reveal that the Tribunal declined to interfere with Ext.P14 order and virtually confirmed it and dismissed the appeal. There cannot be any doubt with respect to the position that an order passed by the Tribunal invites interference only if it is totally perverse or passed in total disregard to any provision of law or totally against the weight of evidence and on such other permissible grounds. A scanning of Ext.P18 order would reveal that the first respondent herein had filed a written statement resisting the contentions raised by the writ petitioner before the Tribunal. It was stated therein that the occupancy certificate was given to 5 shop rooms constructed by the 7th respondent herein during the year 1999-2000 and that the petitioner came with a complaint only after a long lapse of 13 years. It was also stated therein that the ground floor was constructed before the coming into force of the relevant provisions of the Act. The second respondent before the Tribunal viz., the 7th respondent herein, had also filed a written statement resisting the contentions of the petitioner in the appeal stating that it was filed only to wreck vengeance and as a counter blast to his lawful action in initiating action against the illegal construction effected by the writ petitioner. It was specifically stated therein that the construction was over in 1999-2000 and the first floor was constructed in the year 2006-2007. It was the further contention that since the construction of the building in question had started prior to the coming into force of the provisions under section 220(b) of the Act, the interdiction thereunder would not be applicable in regard to the said construction. After considering the rival contentions, the Tribunal formulated two points for consideration viz.,whether the impugned order was legally sustainable and if so what should be the order as to relief? The said points were jointly considered. After adverting to section 220(b) as also section 2(iii) of the Act and taking note of the factual position obtained and after perusing the documents, the Tribunal arrived at the conclusion that the construction of the first floor could not be said to be illegal or unauthorised. The Act was made applicable to the concerned panchayat only on 6.6.2007. Though the Tribunal found that the view of the secretary that section 220(b) came into force only in 1999 after an elaborate consideration of the entire aspects it was found that the contention of the petitioner regarding violation of the provisions under section 220(b) could not be accepted. From the records, the Tribunal found that the construction of the building in question was completed in the year 1999 and on 31.3.2007, the construction of the first floor was completed. Paragraphs 18 to 20 of Ext.P8 assumes relevance and they read thus:-
“18. Admittedly the first floor was constructed in 2006-2007 that is by 31.3.2007. The Kerala Municipality Act came into force only on 6.6.2007 to this Panchayat. The first floor was constructed prior to that. The said construction then did not require a permit. Only thing to be verified then was whether the building would offend Section 220(b) KPR Act. The first proviso to Section 220(b) reads as below:-
“220.Prohibition against constructions in or over public roads etc,--xxx Provided that, the said limit of three metres shall not be applicable for the construction of 1st floor or 2nd floor or both upon a building, existing on the date of coming into force of this Act.”
19. Hence, the construction of 1st floor cannot be treated as illegal or unauthorized.
20. The view of the Secretary, that Section 220 (b) came into force only in 1999 cannot be accepted. But taking such a wrong view has not affected his order as discussed above.”
3. Ext.P3 was also taken into consideration by the Tribunal.
Evidently, the 5 shop rooms in the building were assigned building numbers for the first time on 10.4.2000. It is also stated therein that at that point of time the building rules were made applicable to the panchayat. Though the Tribunal specifically found that the building rules are made applicable to the panchayat only from 6.6.2007, the petitioner has not refuted the same. The petitioner has also not produced any documents to disprove the fact that 5 shop rooms were given numbers on 10.4.2000. In the wake of the facts and circumstances obtained in this case, I do not find any reason to come to a different conclusion than the one arrived at by the Tribunal in paragraph 22 of Ext.P18.
“The appellant is a resident nearby to this building. He has been seeing this building for so many years. All on a sudden, he thought of complaining against this building only in 2011. Hence his action cannot be treated as to protect the laws but is tainted with malafides. His present stand is hit by the principles of acquiescence.”
4. Earlier, the matter came up for consideration of the Ombudsman for Local Self Government Institutions. A report was submitted by the first respondent before the Ombudsman stating that the statutory distance supposed to be maintained at the relevant point of time was maintained. That report was based on the sketch given by the village officer which formed part of the file produced before the Tribunal. Evidently, the Tribunal perused the records as is evident from paragraph 21 of the impugned order. It is after a proper evaluation of the circumstances and taking into account the factual as also legal aspects that Ext.P18 order was passed. Though the learned counsel for the petitioner vehemently argued to canvass the position that Ext.P18 order is unsustainable, on careful consideration of Ext.P18 order, I am of the considered view that the petitioner has failed to establish that Ext.P18 is perverse and the findings therein are against the weight of evidence. In my view, Ext.P18 order is not infected with any illegality or perverseness warranting interference by this Court in exercise of the jurisdiction under Article 226 of the Constitution of India. That apart, I am of the view that justice has been done in this case and any interference by this Court at this point of time would result in miscarriage of justice. In the said circumstances, this writ petition is liable to fail and accordingly, it is dismissed.
Sd/-
C.T. RAVIKUMAR (JUDGE) spc/ C.T. RAVIKUMAR, J.
JUDGMENT September, 2010