Sreedharan P.G. v. State of Kerala and Nellikuzhy Grama Panchayat & others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945** ## **WP(C) NO. 23768 OF 2021** ## **PETITIONER:** **SREEDHARAN P.G.,S/O.GOVINDAN NAIR, AGED 70 YEARS PARAMBAKKATTU HOUSE, NELLIKUZHY P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-** **BY ADV PEEYUS A.KOTTAM** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DISTRICT COLLECTOR, KAKKANADU, ERNAKULAM-688 001.** - **3 THE VILLAGE OFFICER, ERAMALLOOR VILLAGE, NELLIKUZHI P.O., KOTHAMANGALAM-686 691.** - **4 THE INSPECTOR OF POLICE, KOTHAMANGALAM POLICE STATION, KOTHAMANGALAM-686 691.** - **5 NELLIKUZHY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, NELLIKUZHY P.O., KOTHAMANGALAM-686 691.** - **6 THE TECHNICAL EXPERT COMMITTEE, REPRESENTED BY ITS CONVENER/THE SECRETARY, NELLIKUZHI GRAMA PANCHAYAT, NELLIKUZHI P.O., KOTHAMANGALAM-686 691.** - **7 ANNOP PURUSHOTHAMAN,S/O.PURUSHOTHAMAN NAIR, AGED 29 YEARS** **ULLANATTU HOUSE, MEKKEDAMBU P.O., MOOVATTUPUZHA, ERNAKULAM-682 316.** W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 2 **8 PURUSHOTHAMAN NAIR, S/O.GOVINDAN NAIR, AGED 66 YEARS ULLANATTU HOUSE, MEKKEDAMBU P.O., MOOVATTUPUZHA, ERNAKULAM-682 316.** **BY ADVS. R5 BY ADV.K.S.ARUN KUMAR R7 & R8 BY ADVS.Ashok Shenoy B P.S.GIREESH(K/341/2013) ARJUN R NAIK(K/001044/2020) R1 TO R4 BY G.P.SRI.SYAMANTHAK B.S.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.06.2023, ALONG WITH WP(C).14467/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945** **WP(C) NO. 14467 OF 2022** ## **PETITIONER:** **SREEDHARAN. P.G.,AGED 70 YEARS S/O.GOVINDAN NAIR, PARAMBAKKATTU HOUSE, NELLIKUZHY P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686 691.** **BY ADV PEEYUS A.KOTTAM** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 NELLIKUZHY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, NELLIKUZHY P.O., KOTHAMANGALAM-686 691.** - **3 MUHAMMED HASHIM, SECRETARY, NELLIKUZHY GRAMA PANCHAYAT, NELLIKUZHY P.O., KOTHAMANGALAM-686 691.** - **4 THE ASSISTAND EXECUTIVE ENGINEER, ELECTRICAL DEPARTMENT, KOTHAMANGALAM NO.1 SECTION, KOTHAMANGALAM-686 691.** - **5 ANOOP PURUSHOTHAMAN, AGED 29 YEARS S/O.PURUSHOTHAMAN NAIR, ULLANATTU HOUSE, MEKKEDAMPU P.O., MOOVATTUPUZHA, ERNAKULAM-682 316.** - **6 PURUSHOTHAMAN NAIR, AGED 66 YEARS S/O.GOVINDAN NAIR, ULLANATTU HOUSE, MEKKEDAMPU P.O., MOOVATTPUZHA, ERNAKULAM-682 316. BY ADVS. R2 & R3 BY ADV.K.S.ARUN KUMAR, SC, NELLIKKUZHY GRAMA PANCHAYATH R5 & R6 BY ADVS.Ashok Shenoy B P.S.GIREESH(K/341/2013) RAYMOND GEORGE DIAS(K/000933/2018)** W.P.(C) Nos.23768 of 2021 & 4 14467 & 36946 of 2022 ## **ARJUN R NAIK(K/001044/2020)** ## **OTHER PRESENT:** ## **GP - SYAMANTHAK B.S** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.06.2023, ALONG WITH WP(C).23768/2021, 36946/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 5 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 WP(C) NO. 36946 OF 2022** ## **PETITIONER:** **ANOOP PURUSHOTHAMAN, AGED 31 YEARS SON OF PURUSHOTHAMAN NAIR, ULLANATTU HOUSE, MEKKEDAMBU P.O., MUVATTUPUZHA, ERNAKULAM - 682 316 THROUGH HIS FATHER AND POWER OF ATTORNEY HOLDER, PURUSHOTHAMAN NAIR, AGED 64 YEARS, SON OF GOVINDAN NAIR, RESIDING AT ULLANATTU HOUSE, MEKKEDAMBU P.O., MUVATTUPUZHA, ERNAKULAM., PIN - 682316** **BY ADVS. B.ASHOK SHENOY P.S.GIREESH SALIH P.A. ARJUN R NAIK THEJALAKSHMI R.S.** ## **RESPONDENTS:** - **1 TECHNICAL EXPERT COMMITTEE FOR NELLIKUZHY GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENOR - SECRETARY, NELLIKUZHI GRAMA PANCHAYAT, NELLIKUZHI P.O., KOTHAMANGALAM., PIN - 686691** - **2 NELLIKUZHY GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, NELLIKUZHI P.O., KOTHAMANGALAM., PIN - 686691** - **3 THE SECRETARY NELLIKUZHI GRAMA PANCHAYAT, NELLIKUZHI P.O., KOTHAMANGALAM., PIN - 686691** - **4 SREEDHARAN P.G.,AGED 71 YEARS, SON OF GOVINDAN NAIR, PARAMBAKKATTU HOUSE, NELLIKUZHI P.O., KOTHAMANGALAM., PIN - 686691** W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 6 - **5 THE ASSISTANT ENGINEER (LSGD) NELLIKUZHI GRAMA PANCHAYAT, NELLIKUZHI PO, KOTHAMANGALAM., PIN - 686691** **BY ADVS. R1 TO R3 & R5 BY ADV.K.S.ARUN KUMAR, SC R4 BY ADV.PEEYUS A. KOTTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.06.2023, ALONG WITH WP(C).14467/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 7 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 .................................................................** Dated this the 6[th] day of June, 2023 ## **JUDGMENT** W.P.(C) No.23768 of 2021 is filed seeking a direction to respondents 5 and 6 to issue a permit for reconstruction of the compound wall in the property of the petitioner and for a further direction to respondents 1 to 6 to initiate revenue recovery proceedings for realisation of compensation amount of Rs.7,51,330/ordered as per Ext.P3 with interest from respondents 7 to 8. W.P.(C) No.14467 of 2022 is also filed by the petitioner in W.P.(C) No.23768 of 2021 seeking a direction to quash Ext.P8 building permit issued in favour of the 5[th] respondent and for other consequential reliefs. W.P.(C) No.36946 of 2022 is filed by the 5[th] respondent in W.P.(C) No.14467 of 2022 seeking a direction to quash Ext.P11 report of the technical expert committee of the respondent panchayat and for other consequential reliefs. 2. W.P.(C) No.36946 of 2022 is treated as the leading case and the brief facts of the said case are as follows. 4[th] respondent is W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 8 petitioner's paternal uncle being his father's elder brother and they were not in good terms for more than ten years and litigations are pending between them in various courts in relation to their respective landed properties. Petitioner is in ownership and possession of 3.24 Ares of land comprised in survey No.333/3/1/8 of Eramalloor Village in Kothamangalam Taluk in Ernakulam District and the 4[th] respondent's landed properties are situated adjacent to it. Pursuant to a partition entered into, the 4[th] respondent was allotted the landed property on the western end and their sister Susheela was allotted landed property on the eastern end with the petitioner's father being allotted property lying in between the properties thereof allotted to the 4[th] respondent and their sister Susheela. Later the 4[th] respondent purchased the property on the eastern side allotted to sister Susheela and the petitioner's father settled the allotted landed property in favour of the petitioner. The landed property on the eastern side of the petitioner's property now belonging to the 4[th] respondent was lying about 6 to 8 feet lower than its present level and for the purpose of constructing a residential building in the said low lying property the 4[th] respondent filled it up with earth at a height of about 8 feet and thereafter constructed a residential building and also a boundary wall on its western side separating the same from petitioner's property. Before filling the earth in the 4[th] respondent's property the rain water collected from its W.P.(C) Nos.23768 of 2021 & 9 14467 & 36946 of 2022 northern and western sides was flowing through his subject residential property towards eastern side, there being a thodu/canal on the eastern side thereof which too was filled by earth simultaneous with the filling up of the residential property, thereby causing the rain water to flow to the western direction and stagnating in the premises of the present gate of the 4[th] respondent's property. To tide over the stagnation of rain water the 4[th] respondent attempted some construction works which was objected to by the petitioner as the 4[th] respondent took steps to see that the rain water flows to the property of the petitioner. On the strength of Ext.P1 permit petitioner constructed a building in his property. Before starting the construction petitioner has approached the 4[th] respondent and intimated him that he intended to remove soil at about 3 to 3.5 feet from his property and that for preserving the boundaries of his property he is ready and willing to construct concrete walls at the eastern and western sides of the landed property. Accordingly petitioner had constructed a concrete wall on the western side of property separating the landed property which was originally allotted to the 4[th] respondent on partition and thereafter petitioner started construction of the eastern concrete wall, for which a foundation was built, which was objected by the 4[th] respondent and a suit was filed as O.S.No.63 of 2020 before the Munsiff's Court, Kothamangalam. No interim order was obtained in the W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 10 said suit. While so the 4[th] respondent also filed a complaint against the construction of the building in the petitioner's landed property before the 3[rd] respondent Secretary of the Panchayat and a stop memo was issued to the petitioner on 13.02.2020 and the petitioner submitted a reply thereto whereupon the stop memo was recalled and the petitioner proceeded with the construction of the building and completed the same and building number was also allotted. In between, heavy rainfall started and the rainwater collected in the 4[th] respondent's property got stagnated on the western side of the 4[th] respondent's residential building. The petitioner intimated the 4[th] respondent that if the rain water was allowed to stagnate there is every chance for the boundary wall to collapse. Thereupon the petitioner preferred Ext.P4 complaint before the 3[rd] respondent and Ext.P6 complaint before the Revenue Divisional Officer in this regard. Though the 3[rd] respondent pursuant to Ext.P4 complaint issued directions to the 4[th] respondent to provide a channel to the landed property the same was not responded to by the 4[th] respondent. Since thereafter, after about two months, the said boundary wall collapsed. Petitioner is in no way responsible for the said collapse and the 4[th] respondent alone is responsible for it. As the only reason for collapse of the boundary wall was the stagnation of water as aforementioned and the petitioner is in no way liable to compensate for the alleged damages W.P.(C) Nos.23768 of 2021 & 11 14467 & 36946 of 2022 thereof. These aspects were also brought to the notice of the 4[th] respondent through Ext.P8 reply notice submitted to Ext.P7 legal notice issued by the 4[th] respondent. Since the collapse of the boundary wall the 4[th] respondent filed W.P.(C) No.22040 of 2020 before this Court alleging inaction over his complaints as to the construction of the building in petitioner's landed property and the said writ petition was disposed of as per Ext.P9 judgment observing that the 4[th] respondent's complaint is one to be considered by the 1[st] respondent – Technical Expert Committee provided under Rule 10 of the Kerala Panchayat Building Rules, 2019 (in short, “Rules”) and by directing the said committee to consider the complaint. Ext.P10 is the order issued by the Government constituting the expert committee. Thereafter the 3[rd] respondent issued Ext.P11 notice intimating that an amount to the tune of Rs.7,51,330/- has to be paid by the petitioner to the 4[th] respondent as per the estimate drawn by the 5[th] respondent Assistant Engineer on the basis of the site inspection and measurements being the compensation as per Rule 10(10) of the Rules inclusive of Goods and Service Taxes, in which the report of the 1[st] respondent was also enclosed. Petitioner challenges Ext.P11 notice in the above writ petition. 3. The essential contentions raised in the writ petition as against Ext.P11 are as follows: W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 12 (a) Ext.P11 is illegal and arbitrary in as much as it was issued without reckoning, considering and deciding as to whether the petitioner is liable or responsible for the alleged collapse of the compound wall. (b) Ext.P11 has been issued relying on the report of two Professors of the Cochin University of Science and Technology (CUSAT) who were nominated by the Vice Chancellor of the said University and it is only the Government which is statutorily vested with the power of nominating the experts to constitute the 1[st] respondent committee and therefore the constitution of the committee itself is invalid and also the decision of the committee. (c) 3[rd] respondent or the 5[th] respondent is not authorized or competent to fix a compensation upon 4[th] respondent's complaint and the compensation thereof can be fixed only by the 1[st] respondent who alone has been invested with the power to fix it. 4. The contention raised by the petitioner in W.P.(C) No.14467 of 2022 who is the 4[th] respondent in W.P.(C) No.36946 of 2022 is that Ext.P1 building permit was obtained by the 5[th] respondent who is the petitioner in W.P.(C) No.36946 of 2022 suppressing the fact that the 5[th] respondent wants to dig ground, excavate and remove earth from the property above 1.5 metres. Petitioner further contended that if excavation of earth for a depth of more than 1.5 metres is W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 13 involved, permit shall be issued as per Rule 10 of the Rules after following the procedures prescribed therein. Pursuant to the direction issued by this Court in Ext.P2 judgment, a Technical Expert Committee was constituted and on the basis of the report of the Technical Expert Committee the panchayat issued a direction to the 5[th] respondent (petitioner in W.P.(C) No.36946 of 2022) to pay a compensation of Rs.7,51,330/- for constructing the retaining wall and for the loss sustained by him. Initially a stop memo was issued by the panchayat insisting the 5[th] respondent to stop all further constructions and the said memo was challenged by the 5[th] respondent before the Tribunal for Local Self Government Institutions and as per Ext.P5 order the Tribunal declined to interfere with the stop memo. Pursuant to the same Ext.P6 stop memo was issued to the 5[th] respondent which is still in force. By Ext.P7 the respondent panchayat has informed the KSEB authorities to disconnect the electricity connection given to the building of the 5[th] respondent which was constructed in violation of the building rules. Due to the influence of the 5[th] respondent, in violation of the building rules and ignoring the stop memo and the order passed by the Tribunal, by Ext.P8 order the construction of building of the 5[th] respondent was regularised by the 4[th] respondent. Petitioner apprehending that the electricity connection to the building will be given on the basis of Ext.P8 regularisation order has approached this W.P.(C) Nos.23768 of 2021 & 14 14467 & 36946 of 2022 Court filing the above writ petition mainly praying to quash Ext.P8 regularisation order. A counter affidavit has been filed by respondents 5 and 6 mainly reiterating the contentions taken in W.P.(C) No.36946 of 2022 and further that though a stop memo has been issued a detailed reply was submitted to the respondent panchayat on 15.02.2020 and on the basis of the said reply the stop memo was recalled and they proceeded with the construction and completed the same by the end of July 2020 and the building number was also assigned. 5. W.P.(C) No.23768 of 2021 is filed by the petitioner in W.P. (C) No.14467 of 2022 wherein he has sought for issuance of a permit for reconstruction of the compound wall and also seeking a direction to the respondent panchayat to recover the amount of compensation ordered as per Ext.P3 order issued by the respondent panchayat, which is challenged by the 7[th] respondent in W.P.(C) No.36946 of 2022. 6. The question to be considered is as to whether Ext.P11 is sustainable or not. All other reliefs sought for in the other writ petitions are all substantially depending upon the decision as to whether Ext.P11 order is legally sustainable. For a proper understanding of the issues involved in this case, it is profitable to consider the relevant rules. Relevant portion of Rule 10 reads as follows: W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 15 _“_ _**10.Approval of site and plans and issue of permit where excavations to a depth of more than 1.5 metres is involved** - (1) In the case of constructions/land developments which involve any earthwork excavation to a depth of more than 1.5 metres, if the depth of cutting is more than the horizontal distance of such cutting from the plot boundary, the following provisions shall apply:_ _xxxx xxxx xxxx xxxx_ _(5) Any written complaint received after the date of issue of the permit or self certified building permit from owners or occupants in the adjoining properties on the actual or possible damages to their life and property shall be acted upon by the Secretary as per the provisions in this rule:_ _Provided that the work will not be stopped except under exceptional circumstances such as violation of approved plans and risk of danger to life and property._ _(6) Once the earthworks and/or constructions upto the ground level are completed as per the approved plans, the applicant may in writing intimate the same to the Secretary and request for concurrence for carrying out rest of the works._ _(7) The Secretary shall, if convinced that the works are carried out satisfactorily as per the permit(s) and provisions of this rule and no written complaint is received as in subrule (5), issue concurrence as in Appendix C for carrying out the remaining works above the ground level as per approved plans within 7 days after intimating the completion of works upto ground level:_ _Provided that, if no objection is raised by the Secretary within the said period to the construction carried out, the applicant may continue with the work above ground level as if concurrence has been given._ _(8) If any complaint is received as in sub rule (5), the Secretary shall:_ _(i) refer the matter within 5 days to the Technical Expert Committee constituted as per subrule (12) and convene a meeting of the Committee;_ W.P.(C) Nos.23768 of 2021 & 16 14467 & 36946 of 2022 _(ii) intimate the nature of complaints to the applicant and call for details and explanation if so desired by the Committee;_ _(iii) arrange for site inspections, hearing of the applicants and/or petitioners, verification of records and arrange for tests if so required by the Committee; and_ _(iv) take up further action as per the recommendations of the Committee._ _(9) The applicant and/or the petitioner shall attend the hearing and shall also produce any details called for within the time specified, if so required by the Committee or the Secretary on its behalf._ _(10) The Committee shall evaluate the damages and fix the compensation and/or suggest further protective measures, if any, to be taken by the applicant to solve the issues raised by the petitioner. The amount of compensation shall include the actual cost of restoration as decided by the Committee and an additional 30% as solatium: Provided that the process of the Committee shall be completed within a total duration of 3 weeks._ _(11) Concurrence shall be issued by the Secretary, after ensuring that the protective measures are carried out to the satisfaction of the Committee and the compensation is paid by the applicant as per the decision of the Committee. The actual expenses of the Committee as intimated by the Secretary shall be paid by the applicant._ _(12) For the purpose of this rule, Government may, constitute Panchayat level Technical Expert Committee(s) comprising of Secretary (convener), an officer not below the rank of an Assistant Engineer of the Engineering wing of Local Self Government Department having jurisdiction over the area and two experts; one each in Structural Engineering and Geotechnical Engineering (to be nominated by Government) to assess the damage, suggest protective measures and fix the compensation. The process of the Committee shall be completed in 3 weeks.”_ _(underline supplied)_ W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 17 It is specifically mandated as per the Rules that in the case of construction/land development involving any earth work excavation to a depth of more than 1.5 metres, it shall only be in accordance with the provisions of Rule 10 of the Rules and Rule 10(5) mandates that if any written complaint is received after the date of issuance of a permit from the owners or occupants of the adjoining property on the actual or possible damages to their life and property, the same shall be acted upon by the Secretary as per the provisions of the rules. Rule 10(8) describes about the procedures to be followed when a complaint is received as per Rule 10(5) and it mandates that the Secretary shall refer the matter within five days to the Technical Expert Committee and call for an explanation if the committee decides so, arrange for site inspection, hearing of the applicant and petitioners and arrange for tests if so required by the committee and take further action as per the recommendation of the committee. Going by Rule 10(10) it is for the Technical Expert Committee to evaluate the damage and fix the compensation and also suggest protective measures, if any and the amount of compensation shall include the actual cost of restoration as decided by the committee and an additional 30% as solatium. Rule 10(12) speaks about the constitution of the Panchayat level Technical Expert Committee which comprise of Secretary, as convenor, an officer not below the rank of an Assistant Engineer of the Engineering wing of W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 18 Local Self Government Department having jurisdiction over the area and two experts; one each in Structural Engineering and Geotechnical Engineering to be nominated by Government to assess the damage, suggest protective measures and to fix the compensation. 7. On the basis of the abovesaid rules let me consider the validity of Ext.P11 order and the report of the Expert Committee which is appended to Ext.P11, which is challenged in W.P.(C) No.36496 of 2022. 8. The first contention is that there is no decision by the committee as to whether the petitioner is responsible for the alleged collapse of the compound wall and that without entering into such a finding the direction to pay compensation is illegal and unjust. I am not inclined to accept the said contention of the petitioner in W.P.(C) No.36946 of 2022 in as much as the report specifically states that the unsafe way of excavation of earth for the construction of footings of the building of the petitioner in W.P.(C) No.36946 of 2022 aggravated by the water stagnation caused the present collapse of the compound wall. Therefore the contention that there is no finding that the petitioner is responsible for the collapse of the compound wall is without any basis. 9. The second contention taken by the petitioner is that the constitution of the 1[st] respondent committee is in violation of the rules W.P.(C) Nos.23768 of 2021 & 19 14467 & 36946 of 2022 and therefore a recommendation made by a committee which is not validly constituted, cannot be acted upon. The specific case of the petitioner is that two experts ie. two professors from the Divisions of Civil Engineering and Safety and Fire Engineering are nominated by the Vice Chancellor and the same goes against the rules in as much as it is the Government alone which is statutorily vested with the power to nominate the experts to constitute the 1[st] respondent committee. In support of the contention petitioner relies on the judgment in _**Premkumar T.R. v. Mahatma Gandhi University and others (2018(2) KHC 21)**_ to contend for the position that when there is any procedure lapse in the matter of selection, the selection itself is invalid. Paragraphs 104 and 105 of the said judgment read as follows: _“104. As to the impact of procedural lapses on any selection, we may observe that from the days of vintage Taylor v. Taylor, the Courts have held that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. In other words, where power is given to do a certain thing in a certain way, the thing must be done as mandated._ _105. So we have no other option than holding that the composition of the Search Committee is flawed.”_ Going by Rule 10(12), it is for the Government to constitute the Panchayat level Technical Expert Committee comprising of the Secretary (convener), an officer not below the rank of Assistant Engineer of the Engineering wing of the Local Self Government W.P.(C) Nos.23768 of 2021 & 20 14467 & 36946 of 2022 Department having jurisdiction over the area and two experts; one each in Structural Engineering and Geotechnical Engineering (to be nominated by the Government) to assess the damage and fix the compensation. Ext.P10 is the order passed by the Government dated 24.02.2021 whereby Panchayat level Technical Expert Committee was constituted in the respondent panchayat, the relevant portion of which reads as follows: _“4. In these circumstances, Government are pleased to constitute a Panchayat Level Technical Expert Committee for Nellikuzhy Grama Panchayat with the following members in accordance with Rule 10(12) of the Kerala Panchayat Building Rules, 2019._ _1) Secretary, Nellikuzhy Grama Panchayat (convener). 2) Assistant Engineer, LSFD Nellikuzhy Grama_ _Panchayat._ _3) Structural & Geo-technical Engineer from Engineering Department, Cochin University of Science and Technology(CUSAT), Kalamassery, Kochi.” (underline supplied_ So a perusal of Ext.P10 would reveal that the technical experts in the committee were nominated by the Government itself, as Ext.P10 specifically states that the Structural and Geotechnical Engineer from the Engineering Department, CUSAT, Kalamassery, Kochi shall be the member of the Panchayat level Technical Expert Committee for the respondent panchayat. Pursuant to a direction issued by this Court, Government order dated 24.02.2021 which is referred above as well W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 21 as the proceedings of the CUSAT nominating the two experts were produced by the learned counsel appearing for the respondent panchayat, along with a memo. In Ext.P10 Government order while constituting the Panchayat level Technical Expert Committee it is specifically stated that the Structural and Geotechnical Engineer from Engineering Department of CUSAT, Kalamassery, Kochi shall be members of the said Committee. The proceedings now issued by the University is only a consequential order wherein two persons have been nominated by the Vice Chancellor, who are experts in Structural and Geotechnical Engineering to be members of the Technical Expert Committee. Therefore, since the Government as per Ext.P10 has stated that the Structural and Geotechnical Engineers from Engineering Department of CUSAT shall be members of the Technical Experts Committee, the subsequent nomination of these two members by the Vice Chancellor is only a consequence to Ext.P10 order, which is perfectly legal and valid. Therefore the contention of the petitioner that the Technical Experts Committee members are not appointed by the Government is only to be rejected. 10. The third contention raised by the petitioner in the said writ petition is that in Ext.P11 though the 3[rd] respondent has directed the petitioner to pay compensation as assessed by the 5[th] respondent, Rule 10(10) of the Rules specifically mandates that the compensation W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 22 thereof has to be fixed by the 1[st] respondent committee itself. It is true that a perusal of Ext.P7 would reveal that the committee has conducted an inspection and gone into the matter in detail and the assessment of damage was done on the basis of visual inspection, measurement and their assessment and ultimately found that the unsafe way of excavation of soil for the construction of footings of the building of Mr.Anoop (the petitioner in W.P.(C) No.36946 of 2022) aggravated by the water stagnation has caused the present collapse of boundary wall and recommended that the western side boundary wall of Mr.Sreedharan Nair who is the 4[th] respondent in W.P.(C) No.36946 of 2022 needs to be reconstructed and that the cost of repair works in each case needs to be assessed by the engineering wing of the Nellikkuzhi Grama Panchayat. Pursuant to the said recommendation, the damage was assessed by the engineering wing of Nellikkuzhi Grama Panchayat as could be seen from Ext.P11 itself and a total amount of Rs.7,51,330.69 was fixed as the compensation. Rule 10(10) of the Rules specifically mandates that the committee itself should evaluate the damage and fix the compensation and a further reading of Rule 10(12) also would show that a Technical Expert Committee constituted by the Government is to assess the damage and fix the compensation. So going by the said rules it is the 1[st] respondent committee which is to fix the compensation after assessing the W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 23 damages. As could be seen from Ext.P11, damage has been assessed and liability has been fixed on the petitioner in W.P.(C) No.36946 of 2022, on behalf of the committee's recommendation that the cost of repair work in each case needs to be assessed by the engineering wing of Nellikkuzhi Grama Panchayat and it is on the basis of the same that the LSGD section of the Nellikkuzhi Grama Panchayat has fixed the compensation, which in my opinion, goes against the provisions of Rules 10(10) and 10(12) of the Rules. Though the Committee can seek the assistance of the LSGD section of the respective Grama Panchayat in assessing the costs, etc, the compensation has to be ultimately fixed by the 1[st] respondent Committee. After hearing both sides, I am of the opinion that the findings in Ext.P11 inspection report by the 1[st] respondent committee, which is an expert body, are not liable to be interfered with. But as regards the fixation of compensation by the LSG Department of the respondent panchayat, though as recommended by the Expert Committee, I am of the opinion that it is not in accordance with the provisions of Rules 10(10) and 10(12) of the Rules which specifically mandates that the fixation of compensation shall be by the Committee. Therefore, the direction in Ext.P11 report (in W.P.(C) No.36946 of 2022) for fixation of compensation by the LSG wing of the respondent W.P.(C) Nos.23768 of 2021 & 24 14467 & 36946 of 2022 panchayat is set aside while maintaining the other findings in Ext.P11 report (in W.P.(C) No.36946 of 2022) of the 1[st] respondent. The 1[st] respondent committee shall assess the compensation and fix the same within a period of one month from the date of receipt of a copy of this judgment, which shall be done after affording an opportunity of being heard to the petitioner in W.P.(C) No.36946 of 2022 and the petitioner in W.P.(C) No.14467 of 2022. Till a decision is taken as directed above, the interim order granted in W.P.(C) No.14467 of 2022 will remain in force. As regard the prayer made in W.P.(C) No.23768 of 2021 seeking a direction to respondents 5 and 6 to issue permit for re-construction of the compound wall, the same shall be considered and decided by respondents 5 and 6 after fresh orders are issued by the committee, assessing the compensation as directed in W.P.(C) No.36946 of 2022. The writ petitions are disposed of as above. Sd/- **VIJU ABRAHAM** **JUDGE** cks W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 25 ## **APPENDIX OF WP(C) 23768/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 24.02.2021 OF THE 1ST RESPONDENT. Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 02.03.2021 OF THE HON'BLE HIGH COURT OF KERALA IN WPC NO.22040/20. Exhibit P3 TRUE COPY OF THE ORDER NO.A3 5046/2021 DATED 06.08.2021 OF THE 5TH RESPONDENT. Exhibit P4 TRUE COPY OF ESTIMATE OF THE ASSISTANT ENGINEER ISSUED ALONG WITH EXHIBIT P3 ORDER. Exhibit P5 TRUE COPY OF THE REMUNERATION DETAILS OF THE TECHNICAL EXPERT COMMITTEE ISSUED ALONG WITH EXHIBIT P3 ORDER. Exhibit P6 TRUE COPY OF THE REPORT OF THE TECHNICAL EXPERT COMMITTEE ISSUED ALONG WITH EXHIBIT P3 ORDER. Exhibit P7 TRUE COPY OF THE APPLICATION DATED 14.09.2021 OF THE PETITIONER TO THE 5TH RESPONDENT. Exhibit P8 TRUE COPY OF THE RECEIPT ISSUED BY THE 5TH RESPONDENT. RESPONDENT EXHIBITS Exhibit R7(a) True copy of the plaint dated 7.3.2020 in OS No.63 of 2020 filed by petitioner before the Honourable Munsiff Court, Kothamangalam Exhibit R7(b) True copy of the written statement presented on 24.9.2020 in OS No.63 of 2020 filed by Respondents Nos.7 and 8 before the Honourable Munsiff Court, Kothamanagalam Exhibit R7(c) True copy of the complaint dated 25.6.2020 submitted by Respondents Nos.7 and 8 before the 5th respondent W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 26 Exhibit R7(d) True copy of the receipt No.3626 dated 25.6.2020 issued by 5th respondent to respondent No.7 Exhibit R7(e) True copy of the complaint dated 5.8.2020 submitted by 8th respondent to Revenue Divisional officer, Muvattupuzha Exhibit R7(f) True copy of the legal notice dated 27.10.2020 sent by Advocate Alexander Joseph, Counsel for petitioner to respondents Nos.7 and 8 Exhibit R7(g) True copy of the reply notice dated 9.11.2020 sent by Advocate Joshy Joseph, Counsel for Respondents Nos.7 and 8 to Petitioner W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 27 ## **APPENDIX OF WP(C) 14467/2022** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE BUILDING PERMIT ISSUED IN THE NAME OF 5TH RESPONDENT DATED 10.06.2019. Exhibit P2 THE TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.22040/2020 DATED 02.03.2021. Exhibit P3 THE TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY DATED 06.08.2021 ISSUED TO 5TH RESPONDENT DIRECTING THEM TO REMIT AN AMOUNT OF RS.7,51,330/Exhibit P4 TRUE COPY OF THE REPORT SUBMITTED BY THE TECHNICAL EXPERT COMMITTEE AS PER THE DIRECTION IN EXT.P2 JUDGMENT Exhibit P5 THE TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 09.12.2020 IN APPEAL NO.400/2020. Exhibit P6 THE TRUE COPY OF THE NOTICE ISSUED BY THE RESPONDENT PANCHAYAT DATED 11.12.2020. Exhibit P7 THE TRUE COPY OF THE LETTER ISSUED BY THE SECRETARY, NELLIKUZHY GRAMA PANCHAYAT TO THE KSEB DATED 11.11.2020. Exhibit P8 THE TRUE COPY OF THE REGULARIZATION ORDER ISSUED BY THE 3RD RESPONDENT DUE TO EXTRANEOUS CONSIDERATION AND IN BLATANT VIOLATION OF PROVISIONS OF KERALA PANCHAYAT BUILDING RULES AS WELL AS THE ORDER OF THE TRIBUNAL AND STOP MEMO ISSUED BY THE PANCHAYAT. Exhibit P9 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT DATED 15.03.2022 BEFORE THE SECRETARY, NELLIUZHY GRAMA PANCHAYAT. Exhibit P10 THE ANSWER GIVEN BY THE SECRETARY OF THE NELLIKUZHY GRAMA PANCHAYAT TO THE W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 28 PETITIONER. Exhibit P11 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE ASSISTANT EXECUTIVE ENGINEER AND THEREBY REQUESTING NOT TO GIVE PERMANENT ELECTRICITY CONNECTION UNLESS AND UNTIL THE 5TH RESPONDENT COMPLY RULE 10 (11) OF KERALA PANCHAAYT RAJ ACT, 2019. RESPONDENT EXHIBITS Exhibit R5(a) True copy of the plaint dated 7.3.2020 in OF No.63 of 2020 filed by petitioner before the Honourable Munsiff Court, Kothamangalam Exhibit R5(b) True copy of the written statement presented on 24.9.2020 filed by respondents Nos.5 and 6 before the Honourable Munsiff Court, Kothamangalam Exhibit R5(c) True copy of the complaint dated 25.6.2020 submitted by 6th respondent before 2nd respondent Exhibit R5(d) True copy of the receipt No.3626 dated 25.6.2020 issued by 2nd respondent to 6th respondent Exhibit R5(e) True copy of the complaint dated 5.8.2020 submitted by 8th respondent before Revenue Divisional Officer, Muvattupuzha Exhibit R5(f) True copy of the legal notice dated 27.10.2020 sent by Advocate Alexander Joseph, Counsel for Petitioner to respondents Nos.5 and 6 Exhibit R5(g) True copy of the reply notice dated 9.11.2020 sent by Advocate Joshy Joseph, Counsel for Respondents Nos.5 and 6 to Advocate Alexander Joseph, Counsel for petitioner True Copy of the True Copy of the Estimate and Report W.P.(C) Nos.23768 of 2021 & 29 14467 & 36946 of 2022 Estimate and of the Assistant Engineer, LSGD Report section, Nellikuzhy mentioned in Ext P3 and Ext P4 of WP(C) 14467 of 2022. True Copy of True Copy of Government Order [G.O. Government Order (Rt) No. 572/2021/LSGD] dated 24.02.2021 constituting a Technical Expert Committee for Nellikuzhy Grama Panchayat. True Copy of True Copy of Order No. Ad.F2/Misc/2019 Order No. dated 12.03.2021. Ad.F2/Misc/2019 W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022 30 ## **APPENDIX OF WP(C) 36946/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF ORDER NO.C2BA(181753)/2019 DATED 10.06.2019 ISSUED BY 3RD RESPONDENT - Exhibit P2 TRUE COPY OF THE PLAINT DATED 07.03.2020 IN OS NO.63 OF 2020 FILED BY 4TH RESPONDENT BEFORE THE HON'BLE MUNSIFF'S COURT, KOTHAMANGALAM - Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT IN OS NO.63 OF 2020 FILED BY PETITIONER AND HIS FATHER BEFORE THE HON'BLE MUNSIFF'S COURT, KOTHAMANGALAM - Exhibit P4 TRUE COPY OF COMPLAINT DATED 25.06.2020 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT - Exhibit P5 TRUE COPY OF ACKNOWLEDGMENT RECEIPT NO.3626 DATED 25.06.2020 ISSUED BY 3RD RESPONDENT TO PETITIONER - Exhibit P6 TRUE COPY OF COMPLAINT DATED 05.08.2020 SUBMITTED BY PETITIONER TO THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA - Exhibit P7 TRUE COPY OF LEGAL NOTICE DATED 27.10.2020 SENT TO PETITIONER BY 4TH RESPONDENT'S COUNSEL - Exhibit P8 TRUE COPY OF REPLY NOTICE DATED 09.11.2020 ISSUED BY PETITIONER'S COUNSEL TO 4TH RESPONDENT - Exhibit P9 TRUE COPY OF JUDGMENT DATED 02.03.2021 PASSED BY THIS HON'BLE COURT IN W.P. (C) NO.22040 OF 2020 - Exhibit P10 TRUE COPY OF GOVERNMENT ORDER NO.G.O. (RT) NO.572/2021/LSGD DATED 24.02.2021 ISSUED BY GOVERNMENT OF KERALA - Exhibit P11 TRUE COPY OF NOTICE NO.A3-5046/21 DATED 06.08.2021 ISSUED BY THE 3RD RESPONDENT TO PETITIONER ALONG WITH W.P.(C) Nos.23768 of 2021 & 31 14467 & 36946 of 2022 COPIES OF ENCLOSURES THEREWITH Exhibit P12 TRUE COPY OF SHOW CAUSE NOTICE NO.A3668/2022 DATED 25.05.2022 ISSUED BY 3RD RESPONDENT TO PETITIONER 32 W.P.(C) Nos.23768 of 2021 & 14467 & 36946 of 2022