Kerala High Court
Rafeek vs Muppainad Grama Panchayath on 4 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 13TH DAY OF JUNE 2024 / 23RD JYAISHTA, 1946
WP(C) NO. 11962 OF 2023
PETITIONER:
RAFEEK,
AGED 50 YEARS
MANAGING DIRECTOR, DEVALLY HOSPITALITIES, 15 465 A
NOONIKKARA BUILDING, KANIAMBATTA P.O., KANIAMBATTA
VILLAGE, VYTHIRI TALUK, WAYANAD, KERALA PIN-673122,
RESIDING AT THAZHE RAYATOTHKANDI HOUSE, KARTHIKAPALLY
AMSOM, KARTHIKAPALLY POST, VADAKARA TALUK, WAYANAD, PIN
- 673542
BY ADVS.
KRISHNA PRASAD. S
SINDHU S KAMATH
SWAPNA S.K.
ROHINI NAIR
SURAJ KUMAR D.
RESPONDENTS:
1 MUPPAINAD GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, VADUVANCHAL,
WAYANAD, KERALA, PIN - 673581
2 THE SECRETARY,
MUPPAINAD GRAMA PANCHAYATH, VADUVANCHAL,
WAYANAD, KERALA, PIN - 673581
3 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
THE GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
BY ADV MATHEW KURIAKOSE
OTHER PRESENT:
SRI.SYAMANTHAK B.S., GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 11962 OF 2023
2
MOHAMMED NIAS C.P., J.
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W.P.(C) No. 11962 of 2023
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Dated this the 13th day of June, 2024
JUDGMENT
The petitioner and two others are stated to have obtained a building permit dated 13.02.2019 as seen from Ext.P3 from the 1 st respondent-Panchayat. The petitioner before the expiry of the validity of the permit made an application for renewal, as seen from Ext.P7 receipt issued by the Panchayat. The petitioner also made a request in Ext.P8 to transfer the permit to the assignee company. The fact that the renewal application was made on 03.06.2022 is not disputed by the respondent. The writ petition is filed for a direction to the Panchayat for a renewal of the permit, and also for a declaration that the petitioner has a valid permit as the renewal application was filed before the expiry of Ext.P3. The petitioner submits that the provisions of Section 236 (3) of the Kerala Panchayat Raj Act apply as no order on the renewal application, was passed within 30 days by the Secretary entitling them to a deemed permit.
2. The writ petition is resisted by the Panchayat for filing a WP(C) NO. 11962 OF 2023 3 counter affidavit stating that the petitioner is not entitled to renewal on account of Ext.R1(a) proceedings, an order passed by the District Disaster Management Authority, as the property in respect of which the petitioner obtained Ext.P3 building permit is situated in the landslide prone area, wherein construction activities are not permitted as per the order dated 21.08.2019 issued by the Chairman of the District Disaster Management Authority (DDMA), District Magistrate and District Collector, Wayanad.
3. It is also stated that there is a request to transfer the permit was filed for a company and since the factum of such a transfer of ownership of the property was not intimated to the Panchayat, the permit already granted becomes invalid by operation of Rule 19 of the Kerala Panchayat Building Rules. It is also argued that the Panchayat issued Ext.R1(b) dated 04.05.2023 informing the petitioner that the building permit can be renewed only after the petitioner produces the sanction from DDMA.
4. Heard Sri. Krishan Prasad S, the learned Counsel appearing for the petitioner, Sri.Mathew Kuriakose, the learned Standing Counsel appearing for the respondent-Panchayat and the learned Government Pleader.
5. Learned counsel for the petitioner relies on the judgments of this Court in Adani Vizhinjam Port Pvt. Ltd. (M/s) WP(C) NO. 11962 OF 2023 4 v. Aryanadu Grama Panchayat, Thiruvananthapuram (2022 KHC 8124) Tony Thomas K. v. Vythiri Grama Panchayath [2024 (1) KHC 34], ATC Telecom Tower Corporation (P) Ltd. (M/s) v. District Telecom Committee and another [2018(3) KHC 662], Davis E.J.. v. Secretary, Kumarakom Gramapanchayath (2022 KHC 385) and the judgment in W.P.(C). No.21373 of 2023 to substantiate his contentions.
6. As per Section 31(2) of the Disaster Management Act, 2005, the district plan has to be approved by the State authority. In the instant case, this Court passed an order on 05.03.2024 directing the learned Government Pleader to get instructions as to whether the DDMA decision has the approval of the State Authority.
7. The learned Government Pleader on instructions, submitted that there was no approval of the State Authority and this was recorded by this Court in the order dated 11.04.2024. In view of the above, the order now relied on by the Panchayat for refusing renewal cannot be sustained. That apart, the said order can only be prospective in operation and was issued after the issuance of Ext.P3 permit in favour of the petitioner. As regards the 2nd objection that the transfer of ownership in favour of the company was not intimated to Panchayat and therefore, the permit becomes invalid, the said contention is also to be rejected as the only ground on WP(C) NO. 11962 OF 2023 5 which the permit becomes invalid is by the operation of Rule 19(5) namely when there is a sale of portion of the plot for which the plan or approval is granted. The non-intimation of the sale to the panchayat by itself does not render the permit invalid. The prayer of the petitioner that he is entitled to a deemed permit cannot be considered in view of the judgment of this Court in G.George and Others v. PooyappaMy Grama Panchayat (2020 (6) KHC 652) and Ali v. Village (2024 KER 252).
8. In view of the reasons stated above, there will be a direction to respondents 1 and 2 to consider the applications submitted by the petitioner for renewal of the permit, in accordance with the provisions of the Kerala Panchayat Building Rules, 2019 dehors Exts.R1(a) and (b). It shall be done within a period of six weeks from the date of receipt of a copy of the judgment.
The writ petition is allowed as above.
Sd/-
MOHAMMED NIAS C.P., JUDGE LU WP(C) NO. 11962 OF 2023 6 APPENDIX OF WP(C) 11962/2023 PETITIONER EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.481/2010 DATED 29-01-2010.
EXHIBIT P2 A TRUE COPY OF THE INTIMATION ISSUED BY THE 1ST RESPONDENT DATED 25-02-2019. EXHIBIT P3 A TRUE COPY OF THE BUILDING PERMIT ISSUED DATED 31-10-2019.
EXHIBIT P4 A TRUE COPY OF THE DEED OF SALE DATED 21-06-2019.
EXHIBIT P5 A TRUE COPY OF THE POSSESSION
CERTIFICATE ISSUED BY THE VILLAGE
OFFICER DATED 24-01-2022, MUPPAINAD.
EXHIBIT P6 A TRUE COPY OF THE LAND TAX DATED 30-
05-2022.
EXHIBIT P7 A TRUE COPY OF THE ACKNOWLEDGMENT
RECEIPT DATED 03-06-2022.
EXHIBIT P8 A TRUE COPY OF THE REQUEST LETTER
UNDATED WHICH WAS FILED ALONG WITH
RENEWAL APPLICATION.
RESPONDENT ANNEXURES :
ANNEXURE R1(A) TRUE COPY OF THE ORDER DATED 21.08.2019
ISSUED BY THE CHAIRMAN OF THE DISTRICT
DISASTER MANAGEMENT AUTHORITY (DDMA),
DISTRICT MAGISTRATE AND DISTRICT
COLLECTOR, WAYANAD
// True Copy // PA To Judge