WP(C) NO. 29782 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
WP(C) NO. 29782 OF 2021
PETITIONER/S:
JOS KURIAN
AGED 48 YEARS
S/O. KURIAN, PRESIDENT, KODIYAN FAMILY ASSOCIATION,
KOTTAYIL KOVILAKAM, CHENDAMANGALAM, ERNAKULAM DISTRICT.
BY ADVS.
I.DINESH MENON
L.RAJESH NARAYAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE SENIOR TOWN PLANNER
REGIONAL TOWN PLANNING OFFICE, ERNAKULAM - 683030.
3 CHENDAMANGALAM GRAMA PANCHAYAT
REPRESENTED BY SECRETARY, CHENDAMANGALAM P. O.,
CHENDAMANGALAM - 683 512.
4 SECRETARY
CHENDAMANGALAM GRAMA PANCHAYAT, CHENDAMANGALAM P. O.,
CHENDAMANGALAM - 683 512.
BY ADVS.
DEEPA NARAYANAN
K.SUJAI SATHIAN
ASHA MARIAM MATHEWS
MARY LIYA SABU
OTHER PRESENT:
SMT.DEEPA NARAYANAN, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 29782 OF 2021 2
P.V.KUNHIKRISHNAN, J
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W.P.(C) No.29782 of 2021
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Dated this the 29th day of June, 2022
JUDGMENT
The above writ petition is filed with following prayers :
i. Issue a writ in the nature of certiorari or any other appropriate writ, order or direction calling for the records leading up to Ext.P14 and quash the same to the extent it requires compliance with the provisions of KPBR 2019;
ii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to forthwith consider the application for regularization submitted by the petitioner de hors the requirements in Ext.P14 regarding KPBR 2019; iii. Declare that the 4th respondent cannot insist for compliance with KPBR 2019 in the light of Ext.P1; iv. To issue such other writ, direction or order as this Hon Court may deem fit and the petitioner may pray from time to time.[SIC]
2. The main prayer in this writ petition is against WP(C) NO. 29782 OF 2021 3 Ext.P14 order. The petitioner prays that appropriate directions may be issued quashing Ext.P14 to the extent it requires compliance with provisions of Kerala Panchayat Building Rules, 2019 (KPBR, 2019).
3. Heard the learned counsel for the petitioner, learned Government Pleader and the learned Standing Counsel appearing for respondent Nos. 3 and 4.
4. The short point to be decided is whether the provisions of KPBR 2019 is applicable in the present case. This Court considered the very same contention raised by the Panchayat in Ext.P1 judgment. It will be beneficial to extract the relevant portion of the judgment.
9. "As ineluctable from the afore facts presented, the essential dispute is as regards the construction made by the Association in a property owned by them. While it is conceded that they had obtained a building permit in the year 2005, there is a dispute as to when the construction began. While the Association maintains that it began immediately thereafter and that it was completed as early as on 22.01.2006, the Panchayat appears to have taken a stand that the construction was much after 20.07.2007, being the date on which the KPB Rules came into force in WP(C) NO. 29782 OF 2021 4 the Panchayat. This dispute is crucial because if the building had been constructed after 20.07.2007, then perhaps the stand of the Panchayat, that the KPB Rules is applicable, would be relevant.
10. However, there is nothing on record, even in the pleadings available from the side of the Panchayat, to establish conclusively that the building was constructed after 20.07.2007. On the contrary, the documents produced on record by the Association, namely, the invitation card, would prima facie show that the Auditorium was inaugurated as early as on 24.01.2006 in the presence of the then President of the Panchayat, which would indicate to some extent that the construction was over by then.
11. In fact, an affidavit of the erstwhile President of the Panchayat asserting that he had inaugurated the Auditorium on 24.01.2006, has been placed on record by the Association as Ext.P14 in W.P.(C)No.20440 of 2015.
12. I am, therefore, of the view that, as matters now stand and at least prima facie, the assertion of the Association that the construction began in the year 2005 and was completed thereafter, appears to be credible, it being virtually uncontrovorted by any of the rival parties.
13. When that is so concluded, the corollary issue is whether the Panchayat could have invoked their jurisdiction under the KPB Rules to reject the Association's applications for numbering the building and for occupancy certificate alleging that the construction in question violates the said Rules. It has now been settled through a WP(C) NO. 29782 OF 2021 5 catena of judgments including that of the Hon'ble Supreme Court, that if a construction had been completed even before the coming into force of the Building Rules, then an ex post facto application of the Building Rules cannot be made to the said construction.
14. In the case at hand, since I have already found that the construction in question appears to have been completed much before the KPB Rules came into force, the Panchayat certainly was in error having invoked its provisions to hold that the building is irregular and that it requires to be demolished."
5. In the above judgment, it is very clearly stated that the Panchayat is not entitled to invoke the provisions of KPBR, 2019 against the construction in question for the reasons mentioned in the judgment. Thereafter, Ext.P14 order is passed in which the direction is to comply certain provisions of KPBR, 2019. According to me, this is in total violation of Ext.P1 judgment of this Court. The counsel appearing for the Panchayat submitted that in Ext.P13, the date of completion is mentioned as 1.11.2019. Whatever that may be, this Court after considering all the aspects delivered Ext.P1 judgment, in which it is clearly stated that the Panchayat will not be entitled WP(C) NO. 29782 OF 2021 6 to invoke provisions of KPBR, 2019 and in such circumstances, the Panchayat has no business to issue an order like Ext.P14.
Therefore, this writ petition is allowed in the following manner :
1) Ext.P14 is quashed to the extent it requires compliance with the provisions of KPBR, 2019.
2) There will be a direction to the 3 rd respondent to forthwith consider the application for regularization submitted by the petitioner dehors the requirement in Ext.P14 regarding KPBR, 2019.
3) The above exercise should be completed by the 3 rd respondent as expeditiously as possible at any rate, within three weeks from the date of receipt of a copy of this judgment.
Sd/-
P.V.KUNHIKRISHNAN JUDGE SKS WP(C) NO. 29782 OF 2021 7 APPENDIX OF WP(C) 29782/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 01.11.2019 IN WPC NO.20440/2015.
Exhibit P2 TRUE COPY OF THE COMMUNICATION NO.A2-
12583/2019 OF THE 4TH RESPONDENT DATED 15.11.2019.
Exhibit P3 TRUE COPY OF THE PETITIONER' REPLY DATED 06.12.2019.
Exhibit P4 TRUE COPY OF THE NOTICE OF THE 4TH RESPONDENT NO.A2-12583/2019 DATED 15.11.2019.
Exhibit P5 TRUE COPY OF THE REQUEST OF THE PETITIONER DATED 10.01.2020.
Exhibit P6 TRUE COPY OF THE NOTICE NO.A2-12583/2019 DATED 14.01.2020 OF THE 4TH RESPONDENT.
Exhibit P7 TRUE COPY OF THE NOTICE NO.A2-12583/2019 DATED 15.01.2020 OF THE 4TH RESPONDENT.
Exhibit P8 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 29.01.2020 OF RS IN CON.CASE (C) NO.128/2020.
Exhibit P9 TRUE COPY OF THE NOTICE DATED 16.01.2020 NO.A2-12583/2019 OF 4TH RESPONDENT.
Exhibit P10 TRUE COPY OF THE FILE NOTE DATED 13.12.2019.
Exhibit P11 TRUE COPY OF THE INTERIM ORDER DATED 13.02.2020 IN WPC NO.4112/2020.
Exhibit P12 TRUE COPY OF THE COMPLETION PLAN OF BUILDING.
WP(C) NO. 29782 OF 2021 8Exhibit P13 TRUE COPY OF THE COMPLETION CERTIFICATE DATED 20.03.2020.
Exhibit P14 TRUE COPY OF THE NOTICE NO.A2/2564/2020 DATED 26.03.2020 OF THE 4TH RESPONDENT.