Cheriyeri Biyyutty and Vadakke purath Kunhimoosa v. Nannambra Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944** **RSA NO. 230 OF 2022** **AGAINST THE JUDGMENT AND DECREE DATED 18.03.2021 IN AS 95/2014 OF SUB COURT,** ## **TIRUR** **JUDGMENT AND DECREE DATED 26.08.2014 IN OS 47/2012 OF MUNSIFF COURT** ## **PARAPPANANGADI** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS:** **1 CHERIYERI BIYYUTTY AGED 60 YEARS W/O. THEYYANBADITH SAIDALIKUTTY, PARIYAPURAM AMSOM, PANANGATTOOR DESOM, P.O. PANANGATOOR, MALAPPURAM DISTRICT, PIN - 676302 2 VADAKKEPURATH KUNHIMOOSA AGED 61 YEARS S/O. MOIDEEN, MUNNIYOOR AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT PIN – 676 317 BY ADVS. K.P.SUDHEER J.RAMKUMAR** ## **RESPONDENT/APPELLANT/DEFENDANT:** **NANNAMBRA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, NANNAMBRA GRAMA PANCHAYAT, P.O.NANNAMBRA, MALAPPURAM DISTRICT PIN - 676320 BY ADV P.V.ANOOP** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18.07.2022, THE** **COURT ON 27.07.2022 DELIVERED THE FOLLOWING:** R.S.A.No.230/2022 **2** ## **JUDGMENT** The Regular Second Appeal has been directed against the judgment and decree in A.S.No.95/2014 on the file of Subordinate Judge's Court, Tirur which arise out of O.S.No.47/2012 on the file of Munsiff's Court, Parappanangadi. 2. The suit was one for mandatory injunction and permanent prohibitory injunction. Appellants are the plaintiffs. (Parties would be referred as per their status before the trial court). Plaint schedule shed is situated in defendant Panchayat and it belongs to the first plaintiff and her brother Cheriyeri Beeran. On the eastern side of the property, the shed is constructed using hollow bricks. Second plaintiff has been conducting a hollow-bricks unit in the name and style 'Alfina Hollowbricks' after obtaining necessary permission and licence from the authorities including electric connection. The shed was built up in the year 2005 in the co-ownership property. The consent letters for licences and permissions were given by brother for and on behalf of first plaintiff also. In the Panchayat R.S.A.No.230/2022 **3** records, the ownership of the shed was recorded in the name of the brother of the 1[st] plaintiff; it was also for and on behalf of the first plaintiff. Subsequently that property was partitioned and the eastern plot was allotted to first plaintiff by virtue of document No.1942/2007 and the western portion was allotted to the brother which was assigned by him to strangers. The second plaintiff has got valid licence issued from the Panchayat till 31.03.2012. Since the shed was a temporary one, no reference was made in the title deed with respect to the same. When dispute arose between first plaintiff and her brother, he made false claim before the defendant- Panchayat that the shed was in the property allotted to him and that since he demolished the same he should be exempted from paying tax. The factum of submission of such letter has come to the knowledge of the first plaintiff only recently. Second plaintiff obtained licence for hollow-bricks unit from 15.12.2005 onwards and it was being renewed yearly. On 20.09.2011, first plaintiff filed application before the defendant for changing the ownership of the shed to her name, for which, a reply was sent raising untenable contentions by the defendant. It is incorrect to state that the R.S.A.No.230/2022 **4** shed bearing No.VI/46A was demolished. It is also denied that the shed was constructed in violation of the Kerala Panchayat Building Rules. So the defendant is not ready to change the ownership in the name of the first plaintiff. Hence the suit was filed for directing the defendant to change the name of ownership of the building to the name of first plaintiff and for a prohibitory injunction for restraining the defendant from taking any legal action in furtherance of the notice issued by the Panchayat on 15.10.2011 and 06.12.2011 and further seeking for a mandatory injunction to direct the defendant to renew the licence on the expiry of the present licence. 3. The defendant-Panchayat filed written statement denying the allegations in the plaint and it is contended that the building No.VI/46A stands in the name of Cheriyeri Beeran as per the assessment register. Though the property belonged to first plaintiff and her brother Beeran, the shed was that of Beeran and it was demolished by him and the employees of the Panchayat enquired about the demolition and on being satisfied of the demolition of the shed it was recorded by the Finance Standing Committee of the Panchayat that the shed is R.S.A.No.230/2022 **5** demolished. That was not challenged and Panchayat exempted Beeran from paying tax. The shed was constructed after getting valid permit on the application of second plaintiff. The present shed with respect to which the suit is filed is an unauthorized one. The location of the new shed is different from the earlier shed. Using the installation licence and running licence of the old shed, plaintiffs are trying to start business in the new shed without sanction from the Panchayat. There is collusion between the first plaintiff and her brother. Their attempt is to get old number to the new shed for commencing the factory. It is also contended that the order of Panchayat has to be challenged before the appropriate authority and the civil suit is not maintainable. 4. PWs 1 to 3 were examined and Exts.A1 to A16 marked from the side of the plaintiffs. DW1 examined and Exts.B1 to B14 from the side of defendant. Exts.C1 and C1(a) were also marked. 5. Learned Munsiff on evaluating the facts and circumstances and evidence adduced, decreed the suit, as prayed for. Against which, defendant - Panchayat filed appeal R.S.A.No.230/2022 **6** and by the impugned judgment the first appellate court found that the plaintiff approached the court with unclean hands and the shed constructed in 2005 and the shed available in the property are different. So the first plaintiff is not entitled to change the ownership of the shed to her name saying that it is constructed in the year 2005. It is also found that permanent injunction sought for cannot be granted since the court cannot sit in the appeal against the orders of secretary in the absence of fraud. It is further found that the order of demolition of the shed passed by the Secretary under Rule 20 of the Kerala Panchayat Building Rules ought to have been challenged before the Tribunal for Local Self Government Institutions and Civil court cannot usurp the jurisdiction vested with a special forum and ultimately found that the shed in the property is an unauthorized construction and accordingly allowed the appeal setting aside the judgment and decree passed by the trial court. Aggrieved by the same appellants/plaintiffs approach this Court in this R.S.A. 6. Respondent also entered appearance. R.S.A.No.230/2022 **7** 7. Heard both sides. 8. According to the learned counsel for the appellants, the trial court has discussed the facts and circumstances in a correct perspective and first appellate court has erred in reversing the judgment and decree passed by the trial court. Ext.B11 consent letter ought not have been accepted by the first appellate court. The finding of the lower appellate court with respect to Ext.B3 is incorrect. The construction is not an unauthorized one and the finding that the civil court has no jurisdiction is not at all sustainable in law. 9. The learned counsel for the Panchayat on the other hand would contend that the judgment and decree passed by the first appellate court is legal and proper and the civil court has no jurisdiction to entertain the matter and hence no interference is required at the instance of this Court. 10. The first question is with regard to the maintainability of the suit before the civil court. It has been found by the first appellate court that the court cannot sit in appeal against the orders of the Secretary in the absence of any allegation of fraud. R.S.A.No.230/2022 **8** The first appellate court also placed reliance on Dhulabhai etc v. State of Madhya Pradesh & Anr. [AIR 1969 SC 78] wherein it has been held that if a Statute gives power to special tribunals the jurisdiction to do what the Civil Court would normally do in a suit, the Civil Courts' jurisdiction must be held to be excluded. Hence the relief seeking permanent prohibitory injunction cannot also be granted. 11. The reliefs granted by the learned Munsiff reads as follows: - “1. The defendant is ordered by a decree of mandatory injunction to change the ownership of shed No.VI/46A in the Panchayath records in the name of the 1[st] plaintiff. 2. The defendant is restrained by a decree of permanent injunction from demolishing the shed No.VI/46A situated in the plaint schedule property. 3. The defendant is ordered by a decree of mandatory injunction to renew the licence of the 2[nd] plaintiff carrying on business in the name 'Alfina Hollow Bricks” in the shed No.VI/46A situated in the plaint schedule property. 4. The plaintiffs shall realise the costs of the suit from the defendant.” R.S.A.No.230/2022 **9** So on a bare reading of the reliefs granted by the learned Munsiff would make it clear that the court has given the directions and restrained the Secretary with respect to matters governed by the special statute i.e. the Kerala Panchayat Raj Act, 1994 read with the then existing Kerala Panchayat Building Rules, 2011. 12. Chapter XXV C of the Kerala Panchayat Raj Act, 1994 deals with Tribunal for Local self Government Institutions. Section 271 S. provides that Government shall constitute a Tribunal for every district or for more than one district, to consider and dispose of the appeal or revision filed against the decisions of Local Self Government Institutions under Section 276 of this Act and Section 509 of the Kerala Municipality Act, 1994. Section 276 of the Kerala Panchayat Raj Act deals with appeals and revision. Sub Section (1) of Section 276 provides that an appeal shall lie to the Panchayat against the notice issued or order passed or action taken by the President or Secretary in exercise of the powers conferred as per the provisions of the Act, rules, bye-laws or regulations made thereunder except Sections 235 I, 235 J, 235 N, 235 W and R.S.A.No.230/2022 **10** 235 X. Proviso to Section 276(1) states that an appeal or matters connected with tax shall be filed before the standing committee for finance of the village Panchayat. Sub-section 4 of 276 provides that an appeal on the notice, order or action of the Secretary under Section 235 I, 235 J, 235 N, 235 W and 235 X shall be filed before the Tribunal Constituted for Local Self Government Institutions under Section 271 S, and it may on an application by an order, stay the operation of the said notice, order or action taken pending disposal of the appeal. So the relief sought for with respect to an order or notice issued by the Secretary against demolition of shed is to be agitated before the Tribunal and so also any person aggrieved by issue of licence or renewal of licence if refused by the Secretary it has to be challenged before the Panchayat Committee as per Section 276(1). So also, as per sub-section 5 of S. 276 an appeal on any notice issued, order passed, or action taken by the Panchayat or a revision on a decision taken by the Panchayat or Standing Committee on any appeal shall lie to the Tribunal constituted under Section 271 S, with a proviso that such appeal or revision shall be confined only with respect to the following subjects R.S.A.No.230/2022 **11** relating to other subjects as may be prescribed for the purpose, namely: - (a) Assessment, demand and Collection of taxes or fees or cess; (b) Grant of permission and licences for trades, factories, markets and other establishments. So with respect to all the reliefs sought for by the plaintiffs a specific remedy has been provided as per the Kerala Panchayat Raj Act and Rules. When a statue gives powers to Special Tribunals, the jurisdiction to do what civil courts normally do in a suit, the civil courts' jurisdiction must be held to be excluded as has been held in Dhulabhai quoted by the learned Subordinate Judge. So, as rightly found by the learned Subordinate Judge the suit is not maintainable in law. 13. The case of the plaintiffs is that while herself along with her brother were holding the property jointly in the year 2005 a shed was constructed by the second plaintiff on the eastern side of the total property and he has been conducting a hollow-bricks unit in that shed since 2005. It is also the case of the first plaintiff that as per Ext.A14 the eastern portion of the shed was released to her by the brother and western portion was released to her brother as per Ext.A15 and she is the owner of R.S.A.No.230/2022 **12** the shed after that partition. Ext.B3 is the plan by which the shed was constructed in the year 2005 by plaintiff No.2 in the coownership property of the first plaintiff and her brother Beeran as per the consent letter given by Beeran and building tax was collected with respect to that shed till 26.02.2011. The licence was issued to the second plaintiff for the year 2011 - '12 and that was valid upto 31.03.2012. Thereafter the first plaintiff filed Ext.B10 application for changing the ownership of the shed into her name with Ext.B11 consent letter of Beeran. Thereupon the defendant sent Ext.A1/B13 notice demanding demotion of shed. 14. The defendant has got a specific contention that the building bearing No.VI/46A stands in the name of Cheriyeri Beeran. Beeran submitted Ext.B7 application dated 30.09.2011 intimating that the shed has been demolished and seeking to exempt him from paying tax and further informing that his 5.13 cents of property has been sold. An employee of the Panchayat was deputed to ascertain the genuineness of the information and on being satisfied of the report submitted by the employee about the demolition of the shed, as per the decision of the Panchayat Standing Committee, it was recorded that the shed was R.S.A.No.230/2022 **13** demolished. But no appeal was preferred against that order by which Panchayat exempted from paying tax. That shed was constructed after obtaining valid permit in the year 2005 on the application of second plaintiff. It is specifically contended by the defendant that the shed with respect to which now the plaintiffs seek for issue of licence is a new shed unauthorizedly put up without getting permit from the Panchayat and they are attempting to get the old number i.e. No.VI/46A to the new shed. 15. The first appellate court examined Ext.B3 building plan submitted for obtaining permit to the shed in the year 2005 and Ext.A16 report of the Commissioner in O.S.No.225/2011 showing that a shed having measurement of 15 x 70 feet was available in the property as on 16.11.2011. But as per Ext.C1 and C1 (a) another commission report and plan dated 22.02.2012 the commissioner has found the shed in the property having measurement of 15 x 61 feet. As per Ext.B3 plan submitted in the year 2005 the measurement shown was 1050 cm (35 ft) x 800 cm (26.66 ft). It was noted by the first appellate court that the plaintiffs have no case about the reconstruction or renovation of the shed after obtaining permission from the Panchayat. It was R.S.A.No.230/2022 **14** also found that the location and area of the present shed is different from Ext.B3 plan. So the finding of the first appellate court that the shed now available in the plaint schedule property is not the one constructed in the year 2005 is based on valid reasons. It is also to be noted that Exts.A14 and A15 the title deeds with respect to first and second plaintiffs do not mention about any shed and as per Ext.B1 assessment register the building number No.VI/46A is in the name of Beeran and that was deleted from Ext.B1 as per Ext.B8 resolution of the Finance Standing Committee and it is found to have been established by Ext.B9 the Register of Building demolished that building No.VI/46A was entered therein as a demolished one and hence first appellate court concluded that as on the date of suit and even prior to that building No.VI/46A was not available in the official records of the defendant-Panchayat. Ext.B9 the Register of Building Demolished produced from the side of the respondent would convincingly establish that the building No.VI/46A has already been demolished as per the request of owner Beeran. There is no challenge of the orders of the Secretary of the Panchayat with respect to the deletion of building No.VI/46A R.S.A.No.230/2022 **15** stood in the name of Beeran from the assessment register and recording of such number in the Building Demotion Register and the exemption granted to Beeran from paying tax before the Panchayat under Section 276 of the Panchayat Raj Act. So as has been rightly found by the first appellate court since the building bearing No.VI/46A is not in existence as on the date of filing the suit, mandatory injunction sought for by the plaintiffs seeking for change of ownership of the shed cannot be allowed. Ext.A1 notice issued by the Secretary to the first plaintiff on 15.10.2011 is to remove the unauthorized construction. The remedy available to the plaintiff is to challenge the same before the appropriate forum. As found earlier, without resorting to that plaintiffs approached the civil court. 16. So it has come out in evidence that the shed now constructed by the first plaintiff is an unauthorized construction and hence the proceedings initiated by the defendant against the plaintiffs is perfectly in accordance with law and plaintiffs without resorting to the legal remedies provided under the special statute approached the civil court by claiming that the unit is functioning in the old shed stood in the name of her R.S.A.No.230/2022 **16** brother Beeran. So as rightly found by the first appellate court plaintiffs have not approached the court with clean hands and hence plaintiffs are not entitled for any of the reliefs sought for as against the defendant. There is no substantial question of law emerges for consideration in this second appeal and hence the appeal stands dismissed. In the facts and circumstances there is no order as to costs. However, this will not be a bar to the first plaintiff to approach the defendant Panchayat for appropriate relief in accordance with law. Sd/- **M.R.ANITHA** **JUDGE** SHGx