ISMAIL KUNJU Vs. PANMANA GRAMA PANCHAYAT

JUDGEMENT

(1.) APPELLANTS /petitioners approached this Court under Article 226 of the Constitution of India with a writ petition claiming the reliefs mentioned hereunder:

(2.) FACTS , in brief, are the following: The appellants/petitioners are the absolute owners of 3.875 cents of land comprised in old Survey No.8984 of Vadakkumthala Village in Karunagappally Taluk of Kollam District and a 60 years old building thereon. The appellants are conducting business therein. Recently, when the shop rooms were closed during the month of Ramzan, the 5th respondent, who is the owner of a building on the eastern side of the appellants' building, demolished his old building and started construction of a new one without any proper basement. The appellants came to know about the construction on the eastern wall of their building only when the new building rose upto the level of the appellants' building. Immediately the appellants preferred a complaint before the 2nd respondent and he issued Ext.P5 stop memo to the 5th respondent and directed him to show cause why action should not be taken against the illegal construction made by him. The 5th respondent ignoring Ext.P5 proceeded with the construction which led to Ext.P6 complaint and accordingly the 2nd respondent sought the assistance of the 3rd respondent Sub Inspector under Section 252(b) of the Kerala Panchayat Raj Act, 1994 (the Act, for short) to prohibit the illegal construction. Although the 3rd respondent received Ext.P7 complaint, no action was taken against the 5th respondent which, according to the 2nd respondent, was done in violation of the provisions of Section 220B of the Act and Rule 64 of the Kerala Panchayat Building Rules, 2011 (in short, the Rules). It is evident from Ext.P8, contended the appellants. Respondents 2 and 3 are not taking any action against the 5th respondent to demolish his illegal building under Section 235W of the Act. The appellants' building is severely damaged on account of the illegal construction made by the 5th respondent and the adjoining building owners also apprehend that on any day the illegal construction made by the 5th respondent may collapse on account of not having sufficiently strong basement. Moreover, construction in the entire area has been freezed by the 4th respondent as the acquisition proceedings has been started for widening NH -47. Aggrieved by the illegal construction made by the 5th respondent, causing damages to the appellants' building, and also in violation of the Act and the Rules, the appellants preferred the petition. It was dismissed by the learned Single Judge. Challenging the dismissal of the petition, they have preferred this appeal.

(3.) LEARNED Single Judge considered the matter in detail and dismissed the writ petition, finding that the reliefs sought for in Ext.R5(a) plaint, pending before the Munsiff's Court, and that in the petition are similar and therefore the petition is not maintainable.