Kandanassery Grama Panchayat vs Thressiamma Simon

Kerala High Court

Kandanassery Grama Panchayat vs Thressiamma Simon on 21 May, 2024

Author: N. Nagaresh

Bench: N.Nagaresh

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
 TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                  RP NO. 1187 OF 2023
AGAINST THE JUDGMENT DATED 15.09.2023 IN WP(C) NO.12480
            OF 2023 OF HIGH COURT OF KERALA
REVIEW PETITIONER/6TH RESPONDENT:

         KANDANASSERY GRAMA PANCHAYAT
         REP. BY THE SECRETARY,
         CHOONDAL MATTOM ROAD, MATTOM P.O.,
         THRISSUR DISTRICT, PIN - 680602.

         BY ADV SANTHOSH P.PODUVAL


RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 5 & 7:

    1    THRESSIAMMA SIMON
         AGED 58 YEARS, W/O.SIMON,
         THARAKAN HOUSE, MATTOM P.O.,
         THALAPPILLY TALUK,
         THRISSUR DISTRICT, PIN - 680602.

    2    STATE OF KERALA
         REP. BY THE SECRETARY TO THE GOVERNMENT,
         LOCAL SELF GOVERNMENT DEPARTMENT,
         GOVT.SECRETARIAT, THIRUVANANTHAPURAM, PIN -
         695001.

    3    THE DISTRICT COLLECTOR
         THRISSUR DISTRICT, COLLECTORATE, AYYANTHOLE,
         THRISSUR, PIN - 680003.

    4    THE TOWN PLANNER
         OFFICE OF THE DISTRICT TOWN PLANNER,
         LSGD PLANNING, DISTRICT PLANNING BHAVAN,
         2ND FLOOR, AYYANTHOLE, THRISSUR PIN - 680022.
 RP No.1187/2023
                           :2:


    5     THE TAHSILDAR
          (LAND RECORDS), MINI CIVIL STATION,
          KAKKAD, YESUDASROAD, KUNNAMKULAM,
          THRISSUR DISTRICT, PIN - 680503.

    6     THE VILLAGE OFFICER
          ALOOR VILLAGE OFFICE, THALAPPILLY TALUK,
          THRISSUR DISTRICT, PIN - 680602.

    7     THE ASSISTANT EXECUTIVE ENGINEER
          PWD(ROAD DIVISION) CHAVAKKAD,
          THRISSUR DISTRICT, PIN - 680506.

          BY ADVS.
          SRI.N.L.BITTO,
          SRI.S.GOPINATHAN, SR. GOVERNMENT PLEADER

     THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 RP No.1187/2023
                                      :3:




                             N. NAGARESH, J.

           `````````````````````````````````````````````````````````````
                        R.P. No.1187 of 2023
                                  in
                       W.P.(C) No.12480 of 2023

           `````````````````````````````````````````````````````````````
                 Dated this the 21st day of May, 2024


                                  ORDER

~~~~~~ W.P.(C) No.12480/2023 was filed by the 1 st respondent-writ petitioner seeking to direct the review petitioner-Panchayat to number the building of the petitioner within a reasonable time.

2. After hearing the parties, this Court found that the petitioner had submitted application for construction of the building in the year 1999 and NOC was granted for construction as per Ext.P1. According to the petitioner, during the construction of the building, the PWD authorities encroached upon the front side of the petitioner's property and widened the road tarring a portion of the petitioner's property RP No.1187/2023 :4: also. Consequently, there is no setback from the PWD road. It was for that reason that the application submitted by the petitioner for Occupancy Certificate was rejected.

3. In W.P.(C) No.1695/2021 filed by the writ petitioner, this Court directed the District Collector to hear the petitioner and decide the issue. After hearing, Ext.P9 order was passed by the District Collector directing that the Secretary to the Panchayat and Assistant Executive Engineer, PWD should conduct a joint survey of the property/road and ascertain the clearance. After such survey, the Public Information Officer informed that the PWD (Road Section) has no objection regarding the building of the petitioner.

4. However, Occupancy Certificate was denied to the petitioner pointing out lack of parking space, setback of 1.5 metres, lack of fire escape stair, etc. After hearing the writ petition (W.P.(C) No.12480/2023), this Court held that the application for construction of the building was made in the year 1999 and NOC was granted. As the PWD had no objection with regard to the setback from the PWD road, this RP No.1187/2023 :5: Court held that the Panchayat authorities have no justification in not issuing Occupancy Certificate to the petitioner. The defects pointed out in Ext.P11 are based on the Kerala Panchayat Building Rules, 2019. This Court also found that the requirements under the KPBR, 2019 cannot be imposed on the petitioner. The writ petition was therefore disposed of directing the review petitioner (6th respondent-Panchayat in the writ petition) to assign number to the petitioner's building and issue Occupancy Certificate.

5. The Panchayat has now filed the review petition. According to the review petitioner, Ext.P1 NOC issued by the Panchayat was for construction of a residential house and the petitioner has constructed a commercial building. The petitioner has submitted application for regularisation which is referred to in the communications made by the Panchayat. The crucial fact that the building constructed is a commercial building which is borne out by the records was omitted to be considered. Hence, the judgment dated 15.09.2023 in W.P.(C) No.12480/2023 is liable to be reviewed.

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6. I have heard the learned counsel for the review petitioner, the learned counsel appearing for the 1 st respondent-writ petitioner and the learned Senior Government Pleaders representing respondents 2 to 7 in the writ petition.

7. The writ petition was filed by the 1 st respondent alleging that occupancy is being denied to her on the ground that there is no setback from the PWD road. Pursuant to the directions of this Court in W.P.(C) No.1695/2021, the Deputy Collector passed Ext.P9 order directing the Secretary to the Panchayat and PWD Assistant Executive Engineer to make inspection of the road and building and to ensure that clearance as per the Building Rules is provided. Ext.P10 information of the Assistant Engineer, PWD (Roads) would show that the PWD has no objection to the construction of building by the petitioner. In spite of the stand taken by the PWD, the Secretary to the Panchayat issued Ext.P11 pointing out certain Building Rules violation.

8. This Court, after examining the matter, found that Ext.P1 NOC for construction was granted to the petitioner as RP No.1187/2023 :7: per the Building Rules as existed in the year 1999 and the violations pointed out by the Panchayat were based on Building Rules prevalent in the year 2019. Consequently, the writ petition was disposed of by this Court directing the Panchayat to assign building number to the petitioner's building and to issue Occupancy Certificate to the petitioner.

9. In the review petition, the Panchayat has come up with a new case that NOC was for construction of a residential house and the building constructed by the petitioner is a commercial building. Such a statement was not made in the pleadings or in the arguments at the time of hearing the writ petition. The writ petition was disposed of on the basis of materials available on record. In the afore facts, I find no reason to review the judgment in the writ petition, as there is no error apparent on the face of the records.

The review petition is therefore dismissed.

Sd/-

N. NAGARESH, JUDGE aks/13.05.2024 RP No.1187/2023 :8: APPENDIX OF RP 1187/2023 REVIEW PETITIONER'S ANNEXURE Annexure A A COPY OF THE APPLICATION SUBMITTED BY THE 1ST RESPONDENT FOR REGULARIZATION.