Kerala High Court
V.V. Thomas vs The Director Of Panchayath on 11 April, 2024
WP(C) NO. 2692 OF 2017
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
WP(C) NO. 2692 OF 2017
PETITIONER/S:
V.V. THOMAS
VAIMELIL HOUSE, SOUTH CHITTOR, CHERANELLOR, ERNAKULAM.
BY ADVS.
SRI.S.ANANTHAKRISHNAN
SMT.ANU S NAIR
RESPONDENT/S:
1 THE DIRECTOR OF PANCHAYATH
PUBLIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPURAM
- 695 033.
2 THE CHERANALLOR GRAMA PANCHAYATH
REPRESENTED BY IT SECRETARY, SOUTH CHITTOR P.O.,
ERNAKULAM - 682 027.
3 THE ASST. ENGINEER
KERALA STATE ELECTRICITY BOARD, CHERANELLOR, SOUTH
CHITTOR P.O., ERNAKULAM - 682 027.
BY ADVS.
SRI.T.K.AJITHKUMAR VALATH (R2)
SRI.B.PRAMOD, SC, KSEB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 2692 OF 2017
2
JUDGMENT
Dated this the 11TH day of April 2024 Petitioner, after his retirement started vegetable and fish farming in the property obtained by him in the family partition lying in Cheranelloor Village. Partition deed has been produced as Ext.P1. Petitioner constructed a semi-permanent motor shed and security shed in the property. Admittedly the same was constructed before building permit was issued by the Panchayat. Electricity connection was also obtained On 21.01.2017. Thereafter, petitioner was served with Ext.P5 communication dated 19.01.2017 stating that the door number assigned to the motor shed and security room has been cancelled on the directions of the 1st respondent. Challenging Ext.P5 communication dated 19.01.2017, petitioner filed this writ petition.
2. Petitioner submits that Ext.P5 is arbitrary and illegal and issued in violation of of principles of natural justice. Petitioner further points out that the 2 nd respondent issued Ext.P5 as dictated by the 1 st respondent, who has no authority to issue any direction to the 2nd respondent to cancel the building number already allotted. Further case of the petitioner WP(C) NO. 2692 OF 2017 3 is that the direction was issued by the 1 st respondent is on the basis of some complaints and the decision was taken without providing an opportunity to him to counter the allegations against him.
3. A counter affidavit has been filed by the 2 nd respondent.
4. The 2 nd respondent Panchayat points out that petitioner completed the construction without obtaining building permit. It is also submitted that the property is a paddy land and therefore, the construction is illegal. It is also stated that before making any construction, the petitioner should have obtain development permit from the 2nd respondent. The crux of the submissions of the Panchayat is that allotting building number to the construction made by the petitioner would be in violation of the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter referred to as 'Act, 2008') and also the Panchayat Building Rules, 2011.
5. The 1 st respondent has also filed counter affidavit justifying the action taken by the said respondent. It has been stated in the counter affidavit of the 1st respondent that the member of Ward No.7 of the Panahcyat had lodged a complaint before the 1st respondent against the unauthorised construction WP(C) NO. 2692 OF 2017 4 undertaken by the petitioner and the action of the Assistant Secretary to the Panchayat in numbering the said unauthoirsed structure. The said complaint has been produced as Ext.R1(a).
6. I have heard the learned Counsel for the petitioner, learned Government Pleader, learned Counsel for the Electricity Board as well as learned Counsel appearing for the Panchayat and perused the pleadings and documents.
7. It is admitted that the building was constructed before obtaining the building permit. Later the Panchayat, by Ext.P3, allotted building number to the construction. Subsequently on the basis of a complaint received him, the 1 st respondent directed the Secretary to the Panchayat to cancel the building number allotted. On a perusal of Ext.R2(a), issued by the 1st respondent, it is seen that the said respondent issued Ext.R2(a) addressed to the Deputy Director of Panchayat, Ernakulam with copy to the Secretary, Cheranelloor Grama Panchayat directing to cancel the building number allotted immediately and to report the action taken before 5 pm on 19.01.2017.
8. I find considerable force in the argument advanced by the learned Counsel for the petitioner that the action has been taken in violation of the principles of natural justice. It is WP(C) NO. 2692 OF 2017 5 true that the construction was undertaken without obtaining building permit. I also note that the Panchayat as well as the Government are pointing out that the construction is in violation of the provisions of Act 2008 and also the Panchayat Building Rules.
9. Whatever be the merits of the contentions raised by each side, any action, especially the drastic action as revealed from Ext.R2(a) should have been resorted to only after providing an opportunity to the affected party to rebut the allegations against him. The said requirement is a basic requirement of the principles of natural justice.
10. I therefore find that the action taken by respondents 1 and 2 is in violations of principles of natural justice. Therefore, I set aside Ext.P5 and direct the Secretary of the 2 nd respondent Panchayat to take a fresh decision in the matter after hearing the petitioner as well as the affected parties. The Secretary shall take a decision after hearing the parties, uninfluenced by previous communication issued by the 1 st respondent without hearing the petitioner. On receipt of a copy of this judgment, the Secretary shall issue notice to the petitioner and also to the complainant in Ext.R1(a). A fresh decision shall be taken, in accordance with law, within a period of two months from the WP(C) NO. 2692 OF 2017 6 date of receipt of a copy of this judgment. The writ petition is disposed of accordingly.
SD/ S.MANU, JUDGE jm/ WP(C) NO. 2692 OF 2017 7 APPENDIX OF WP(C) 2692/2017 PETITIONER EXHIBITS EXHIBIT P1. TRUE COPY OF THE REGISTERED PARTITION DEED. EXHIBIT P2. TRUE COPY OF THE COMMUNICATION ISSUED BY THE AGRICULTURAL OFFICER.
EXHIBIT P3. TRUE COPY OF THE COMMUNICATION DATED 17.05.2016 ISSUED BY THE 2ND RESPONDENT ASSIGNING DOOR NUMBER.
EXHIBIT P4. TRUE COPY OF THE RECEIPTS ISSUED BY THE ELECTRIC OFFICE.
EXHIBIT P5. TRUE COPY OF THE COMMUNICATION DATED 19.01.2017 ISSUED BY THE 2ND RESPONDENT CANCELLING THE DOOR NUMBER.