IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 8262 OF 2016
PETITIONER:
GOPI CHAKKUNNATH
AGED 52 YEARS
S/O.NARAYANIYAMMA,
GOPIKA'S,
VENGANELLOOR,
CHELAKKARA,
THRISSUR DISTRICT,
PIN - 680 586.
RESPONDENTS:
1 CHELAKKARA GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY,
CHELAKKARA,
THRISSUR,
PIN - 680 586.
2 SECRETARY
CHELAKKARA GRAMA PANCHAYATH,
CHELAKKARA,
THRISSUR,
PIN - 680 586
3 TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS -
KERALA
TRIDA BUILDING,
MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM - 695 037.
R1 & R2 BY SRI.S. SHANAVAS KHAN
R3 BY SRI. K.P. HARISH, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C.) No. 8262/2016
2
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:-
"i) Call for records leading to Exhibit P2 and Exhibit P6 and issue a writ in the nature of certiorari quashing Ext.P2 and Ext.P6, to the extent that the demolition of the building covered thereunder is directed;
ii) Issue a writ in the nature of mandamus commanding the 1st respondent to number the petitioner's building covered by Ext.P2 and P6 within such time as may be fixed by this Hon'ble Court.
iii) issue such other orders, writs or directions as are deemed fit by this Hon'ble Court.
iv) award cost of this proceedings to the petitioner."
2. Apparently, alleging that the petitioner has carried out illegal construction of the building especially the violation of Section 220(b) of the Kerala Panchayat Raj Act, 1994, for short the 'Act, 1994' action was initiated evident from Ext.P2 notice dated 20.11.2013. Being aggrieved by the same, the petitioner has preferred an appeal before the Panchayat Council and thereafter, approached W.P.(C.) No. 8262/2016 3 the Tribunal for Local Self Government Institutions by filing appeal evident from Ext.P4. The Tribunal after considering the appeal has dismissed the same, however, permitted the petitioner to submit an application for regularisation after removal of the objectionable construction of the building. It is thus aggrieved by the order passed by the Secretary as well as the Tribunal, this writ petition is filed.
3. I have heard the learned counsel for the petitioners, Smt. P.R. Reena, the learned counsel for the Grama Panchayat, Smt. Indu and perused the pleadings and materials on record.
4. Even though various contentions are raised in the writ petition with respect to the illegality of Ext.P2 notice, I am of the considered opinion that the notice is surrounded by various factual circumstances. However, the learned W.P.(C.) No. 8262/2016 4 counsel for the petitioner submitted that the petitioner is mostly aggrieved by the direction given by the Tribunal for Local Self Government Institutions to submit the application for regularisation with a rider to remove the objectionable portion of the building. The learned counsel for the Panchayat submitted that if the petitioner is submitting any application for regularization, it will be considered by the Secretary of the Grama Panchayat in accordance with law.
5. Having evaluated the rival submissions, this writ petition is disposed of vacating the direction issued by the Tribunal for Local Self Government Institutions, directing the petitioner to remove the objectionable portion of the building and granting liberty to the petitioner to file suitable application for regularisation of the building constructed either before the Secretary, if the W.P.(C.) No. 8262/2016 5 construction is in accordance with the Kerala Panchayat Building Rules, 2011, for short the 'Rules, 2011' or before the appropriate statutory authority in contemplation of Section 235AB of the Act, 1994.
6. When this writ petition was admitted to the files of this Court, status quo was directed to be maintained and it was extended twice and finally, extended for one month on 29.06.2016. Anyhow a person who has constructed a building even without a permit is entitled to seek for regularisation in accordance with the provision of the Rules, 2011 and if it is in accordance with the Rules, the Secretary is vested with powers to regularise the same. However, if any construction is carried out in violation of the Rules, 2011 and the provision of the Act, 1994, the Secretary is not vested with powers. But by virtue of the periodical W.P.(C.) No. 8262/2016 6 orders issued by the State Government as per Section 235AB of the Act, 1994, any person who has carried out the construction in violation of the Rules, 2011 is entitled to file an application.
7. In that view of the matter, it is for the petitioner to decide as to whether to approach the Secretary for regularisation or the statutory authority in accordance with Section 235AB of the Act, 1994.
The writ petition is disposed of as above.
Sd/-
SHAJI P. CHALY JUDGE DCS/01.07.2022 W.P.(C.) No. 8262/2016 7 APPENDIX PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE BUILDING IN QUESTION ALONG WITH THE ADJOINING ROADS Exhibit P2 TRUE COPY OF THE NOTICE ISSUED BY THE RESPONDENT DATED 20.11.2013 Exhibit P3 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE PANCHAYATH COMMITTEE DATED 20.12.2013 Exhibit P4 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE LSGT UNDER RULE 151 OF THE KPBR, 2011 DATED 3.12.2013 WITHOUT ANNEXURES Exhibit P5 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT DATED 9.3.2014 Exhibit P6 TRUE COPY OF THE COMMON ORDER PASSED BY THE LSGT DATED 27.1.2016 Exhibit P7 A PHOTOGRAPH SHOWING THE BUILDING SITUATED OPPOSITE TO THE BUILDING OF THE PETITIONER, ABUTTING THE PANCHAYATH ROAD.