ANSAR C v. THE SECRETARY, SREEKANDAPURAM GRAMA PANCHAYAT

BY ADVS. SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.T.B.HOOD SMT.M.ISHA SRI.T.C.SIBI OTHER PRESENT: SRI BS SYAMANTAK, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15904 OF 2015 3 P.V.KUNHIKRISHNAN, J --------------------------------------- W.P.(C.) No. 15904 of 2015 -------------------------------------- Dated this the 10th day of January, 2024 JUDGMENT The above writ petition is filed with following prayers : (a) “Call for the records connected with the case; (b) Issue a writ of certiorari or other appropriate writ or order quashing Ext.P10 order passed by Respondent No.1, Secretary of Grama Panchayat and direct to pass a fresh order in the light of Ext. P15 report of the Taluk Surveyor, (c) Issue a writ of mandamus or other appropriate writ or order directing Respondents 1 to conduct joint inspection of the site along with Respondents No.3 to 5 with respect to the request of the Petitioner made in Ext.P7; (d) Grant such other reliefs as this Hon'ble court may deem, fit and proper in the circumstances of the case.”[SIC]

2. The petitioner obtained consent for establishing a WP(C) NO. 15904 OF 2015 4 stone crusher unit in survey No.25/1A of Nediyanga village. It is submitted that respondent No.2 Grama Panchayat also passed a resolution expressing its no objection in establishing the unit on 08.10.2009. The respondent No.6 submitted an application for construction of a house in his property on

22.09.2009 after knowing about the consent and permission obtained by the petitioner is the further submission. According to the petitioner, the building was constructed with cement bricks and asbestos roof hurriedly and got numbered on

19.12.2009. On the basis of the alleged residential building, the respondent No.6 filed a suit before the Munsiff Court, Taliparamba to restrain establishment of the unit by the petitioner is the submission. It is submitted that Munsiff Court by Ext.P3 order held that the construction is malafide with the intention of creating a cause of action against the petitioner. The Kerala Pollution Control Board only for the reason of the existence of a residential building within a distance of 130 metres on the date of its inspection, that is on 22.12.2009, refused to grant consent. The petitioner challenged the order WP(C) NO. 15904 OF 2015 5 of the Pollution Control Board before the AIR Appellate authority which dismissed the appeal. Subsequently, the petitioner filed W.P.(C.) No.13227/2012 before this Court. It was allowed and when the 6th respondent filed a writ appeal, the order passed by the single Judge was reversed. It is submitted that an SLP is also filed by the petitioner.

3. In the meanwhile, the petitioner obtained the details of the building permit issued by respondent No.1 Grama Panchayat under the Right to Information act. Ext.P6 is the building site plan approved by the Grama Panchayat for the construction of the disputed building. It is submitted that on verification of the site plan, the petitioner realised that the respondent No.6 played a fraud on the Pollution Control Board, Court and all the other authorities and the construction is effected at a totally different site from the one approved by respondent No.1 Grama Panchayat by Ext.P6 permit along with plan. It is stated that the construction is done with the malafide intention of preventing the industry being established by the petitioner. Hence, the petitioner submitted application before WP(C) NO. 15904 OF 2015 6 the 1st respondent to verify the correctness of the statement of the petitioner that the site is shifted to defeat the right of the petitioner and if found correct cancel the building number granted to respondent No.6.

4. Subsequently, respondent No.1 on inspection of the site stated that the assistance of the Village Officer and the Taluk Surveyors is necessary to verify with the records and submit a report. It is submitted that the Village Officer reported that the construction effected is in a different site. According to the petitioner, without waiting for the report of the Taluk Surveyor, the Assistant Secretary passed Ext.P10 order and held that the construction seems to be in the same site. According to the petitioner, he obtained the report of the Surveyor along with the sketch plan Ext.P15 in which it is clearly stated that the construction is at a totally different site and is made with the sole intention of creating cause of action against the petitioner. Hence, this writ petition is filed.

5. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel WP(C) NO. 15904 OF 2015 7 appearing for the 6th respondent. I also heard the learned counsel appearing for the 1st respondent-Panchayat & addl. 9th respondent.

6. The short point raised by the petitioner is that Ext.P10 is an order without considering Ext.P15 and therefore, Ext.P10 may be set aside and the additional 9th respondent can be directed to reconsider the matter in the light of Ext.P15. A counter is also filed by the then Panchayat which is arrayed as the 1st respondent.

7. The counsel appearing for the additional 9th respondent submitted that Ext.P15 was not available when Ext.P10 order is passed. If that is the case, there can be a direction to reconsider the matter in the light of Ext.P15. Therefore, this writ petition is disposed of with the following directions: 1) Ext.P10 is set aside. 2) The addl.9th respondent is directed to reconsider the matter, in the light of Ext.P15 after giving an opportunity of hearing to the petitioner and the 6th respondent as WP(C) NO. 15904 OF 2015 8 expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. 3) The petitioner will produce a certified copy of this judgment along with a copy of this writ petition before the addl. 9th respondent for compliance. SKS SD/- P.V.KUNHIKRISHNAN JUDGE WP(C) NO. 15904 OF 2015 9 APPENDIX OF WP(C) 15904/2015 PETITIONER EXHIBITS EXT.P-1: TRUE COPY OF THE RESOLUTION PASSED BY RESPONDENT NO.2, DT.8.10.2009 EXT.P-2: TRUE COPY OF THE INFORMATION OBTAINED BY THE PETITIONER FROM RESPONDENT NO.1, DT.6.3.2010 EXT.P-3: TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, TALIPARAMBA DT.15.3.2010 IN I.A. 450/2010 IN O.S. EXT.P-4: TRUE COPY OF THE JUDGEMENT PASSED BY THIS HON'BLE COURT IN WPC NO.13227 OF 2012, DT.13.6.2013. EXT.P-5: TRUE COPY OF THE SUBSEQUENT CONSENT TO ESTABLISH ISSUED BY THE POLLUTION CONTROL BOARD, DT.27.7.2013 EXT.P-6: TRUE COPY OF THE BUILDING PERMIT ALONG WITH THE TITLE DEED AND THE APPROVED SITE PLAN OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT, FROM RESPONDENT NO.1, DT.29.10.2009 EXT.P-7: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.1 AND RESPONDENTS 2 TO 5, DT.29.3.2014 EXT.P-8: TRUE COPY OF THE JUDGEMENT IN WPC NO.11259/2014, DT.22.4.2014 EXT.P-9: TRUE COPY OF THE REPORT DT.25.5.2014 SUBMITTED BY RESPONDENT NO.3, THE VILLAGE OFFICER ALONG WITH A LOCATION WP(C) NO. 15904 OF 2015 10 SKETCH. EXT.P-10: TRUE COPY OF THE ORDER PASSED BY RESPONDENT NO.1, DT.2.6.2014 EXT.P-11: TRUE COPY OF THE APPLICATION UNDER THE RIGHT TO INFORMATION ACT, DT.9.6.2014 EXT.P-12: TRUE COPY OF THE REPLY GIVEN UNDER THE RIGHT TO INFORMATION ACT, DT.2.7.2014 DELIVERED ON 9.7.2014 EXT.P-13: TRUE COPY OF THE REPORT DT.17.5.2014 EXT.P-14: TRUE COPY OF THE LETTER ADDRESSED BY RESPONDENT NO.1 TO RESPONDENT NO.4, TALUK SURVEYOR AND RESPONDENT NO.3, THE VILLAGE OFFICER, NEDIYANGA, DT.21.5.2014 EXT.P-15: TRUE COPY OF THE REPORT SUBMITTED BY RESPONDENT NO.4, THE TALUK SURVEYOR ALONG WITH THE SKETCH, DT.11.8.2014