Kerala High Court
Jojo Joseph vs The Vathikudy Grama Panchayath on 8 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(C).No.38369 OF 2015(U)
PETITIONER:
JOJO JOSEPH
AGED 45 YEARS
S/O.JOSEPH, MUTHUPLACKAL HOUSE, RAJAMUDY P.O,
PATHINARAMKANDAM, IDUKKI DISTRICT.
BY ADVS.
SRI.JOBY JACOB PULICKEKUDY
SRI.ANIL GEORGE
SMT.NIVYA VALSAN
SRI.K.S.SUMEESH
RESPONDENTS:
1 THE VATHIKUDY GRAMA PANCHAYATH
MURICKASSERY, IDUKKI DISTRICT,
REPRESENTED BY ITS SECRETARY
PIN - 685 604.
2 THE SECRETARY
VATHIKUDY GRAMA PANCHAYAT, MURICKASSERY, IDUKKI
DISTRICT.
PIN - 685 604.
3 JOSHY JOSEPH
S/O.JOSEPH, RATHAPPALLIL HOUSE, RAJAMUDY P.O,
PATHIRARAMKANDAM, RAJAMUDY P.O, PATHINARAMKANDAM,
VATHIKUDY, IDUKKI DISTRICT.
PIN - 685 604.
4 THE SUB INSPECTOR OF POLICE
MURICKASSERY POLICE STATION, IDUKKI DISTRICT.
PIN - 685 604.
R1 AND R2 - SRI.K.C.JOSEPH,STANDING COUNSEL
R3 - SRI.LATHEESH SEBASTIAN
R4 - SRI.SURIN GEORGE IPE,SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2021, ALONG WITH WP(C).32407/2016(A), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).No.38369 OF 2015 & 2
WP(C).Nos.32407 OF 2016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(C).No.32407 OF 2016
PETITIONER:
JOSHY JOSEPH
AGED 36 YEARS, S/O.JOSEPH, RATHAPPALLIL HOUSE,
RAJAMUDI P.O,PATHINARAMKANDAM, VATHIKUDI,
IDUKKI DISTRICT.
BY ADV. SRI.LATHEESH SEBASTIAN
RESPONDENTS:
1 VATHIKUDI GRAMA PANCHAYATH
MURIKKASSERY PO, MURIKKASSERY,
IDUKKI DISTRICT-682 602,
REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY VATHIKUDI GRAMA PANCHAYATH
MURIKKASSERY PO, MURIKKASSERY,
IDUKKI DISTRICT-682 602.
R1 AND R2 - SRI.K.C.JOSEPH,STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2021, ALONG WITH WP(C).38369/2015(U), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.38369 OF 2015 & 3
WP(C).Nos.32407 OF 2016
JUDGMENT
[ WP(C).38369/2015, WP(C).32407/2016 ]
Dated this the 8th day of April 2021
Captioned writ petitions are materially connected in respect of an
alleged illegal construction carried out by the petitioner in W.P.(C)
No.32407/2016 viz., Joshy Joseph, who is the 3 rd respondent in the other
connected writ petition. The subject issue raised by the petitioner in
W.P.(C) No.38369/2015 is that a toilet was being constructed by the petitioner
in W.P.(C) No.32407/2016 without securing any building permit from the
Secretary of the Vathikudy Grama Panchayat, Idukki District.
2. The contention so raised by the petitioner in W.P.(C) No.32407/2016
is found to be correct since learned counsel appearing for petitioner in other
connected writ petition has submitted that already Ext.P3 regularization
application is submitted before the Secretary of the Grama Panchayat.
Anyhow in W.P.(C) No.38369/2015, petitioner has produced Exhibit P4 order
passed by the Secretary of the Grama Panchayat dated 7.12.2015, whereby
the petitioner in W.P.(C) No.32407/2016 is directed to remove the
unauthorised and illegal construction carried out by the petitioner. It is also
clear from the record of proceedings that as per an interim order dated
WP(C).Nos.32407 OF 2016
17.12.2015, the toilet in question was directed not to be used for a period of
one month, which was being extended periodically and finally extended until
further orders on 30.6.2016.
3. In my considered opinion, no person shall carry out any construction
or commence work without securing a permit from the Secretary of the Grama
Panchayat, which is contemplated under section 235H of the Kerala Panhayat
Raj Act, 1994. Anyhow, if any work is carried out by any person without
securing a permit or violating the permit conditions, the Secretary of the
Grama Panchayat is conferred with a duty under section 235N of Act, 1994 to
seek alteration of the work. Section 235N of Act, 1994 reads thus:
235N. Power of Secretary to required alteration in work.-- (1)
Where it comes to the notice of the Secretary that a work -
(a) is not in accordance with the plans or specifications approved, or
(b) is in contravention of any of the provisions of this Act or any rule,
bye-law, order of declaration made thereunder, he may by notice,
require the person for whom such work is done,
(i) to make such alteration as may be specified in the said notice
to bring the work in conformity with the plans or specification
approved or the provisions so contravened; or
(ii) to show cause why such alteration should not be made, within
such period as may be specified in the notice:
Provided that any construction made in deviation from such approved plan
or specifications may not be required to be altered unless it contravenes
any specifications or provisions mentioned in this Act or building rules
made thereunder.
WP(C).Nos.32407 OF 2016
(2) Where such person does not show cause as aforesaid, he shall be bound
to make the alterations specified in such notice.
(3) Where such person shows sufficient cause as aforesaid, the Secretary
shall, by order confirm, modify or cancel the notice issued under sub-
section (1).
4. On a reading of the said provision, it is categoric and clear that, that
by itself is a scheme, which will have to be adopted by the Secretary of the
Grama Panchayat, if and when an illegal or unauthorised construction is
detected by the Secretary either by himself or on the basis of a complaint
submitted by any person. This is a case where the order specified above was
passed by the Secretary directing the petitioner in the connected writ petition
to demolish the construction carried out. In my considered opinion, without
issuing a notice securing, an objection and passing an order finally, the
Secretary was not vested with powers under law to pass a unilateral order
directing the builder to demolish the construction. Anyhow, now petitioner has
submitted an application seeking regularization. By virtue of the powers
conferred on the Secretary of the Panchayat as per Act, 1994, the Kerala
Panchayat Building Rules, 2011 and also the new Panchayat Building Rules,
2019, Secretary can regularise a construction, if it is in accordance with the
provisions of the Act, 1994 and the Rules thereto.
5. In that view of the matter, it is only appropriate that the Secretary of
the Grama Panchayat is directed to take a final decision in the regularisation
WP(C).Nos.32407 OF 2016
application submitted by Sri.Joshi Joseph, the petitioner in W.P.(C)
No.32407/2016, within a time period. Accordingly, the writ petitions are
disposed of, directing the Secretary of the Vathikudy Grama Panchayat, Idukki
District, to finalaise Ext.P3 regularisation application submitted by Joshy
Joseph, at the earliest and at any rate within one month from the date of
receipt of a copy of this judgment, after providing a notice of hearing to Joshy
Joseph and the aggrieved person Sri.Jojo Joseph. I make it clear that till such
time the interim order granted by this court would continue to be in force.
Parties will be guided by the orders so passed.
Sd/-
SHAJI P.CHALY
smv JUDGE
WP(C).Nos.32407 OF 2016
APPENDIX OF WP(C) 38369/2015
PETITIONER'S EXHIBITS:
EXHIBIT P1 EXHIBIT P1. COPY OF THE COMPLAINT SUBMITTED
BY THE PETITIONER DATED 2.12.15.
EXHIBIT P2 EXHIBIT P2. COPY OF THE RECEIPT ISSUED BY
THE MURICKASSERY POLICE STATION DATED
6.12.15.
EXHIBIT P3 EXHIBIT P3. COPY OF THE PHOTOGRAPHS SHOWING
THE BUILDING CONSTRUCTED BY THE 3RD
RESPONDENT.
EXHIBIT P4 EXHIBIT P4. COPY OF THE NOTICE DATED
7.12.15 ISSUED BY THE 2ND RESPONDENT TO THE
3RD RESPONDENT.
WP(C).Nos.32407 OF 2016
APPENDIX OF WP(C) 32407/2016
PETITIONER'S EXHIBITS:
P1 TRUE COPY OF THE NOTICE OF THE 2ND
RESPONDENT DATED 07.12.2015
P2 TRUE COPY OF THE REPLY TO EXT.P1 NOTICE
P3 TRUE COPY OF THE REPRESENTATION OF THE
PETITIONER DATED NIL.
P4 TRUE COPY OF THE REPRESENTATION OF THE
PETITIONER BEFORE THE MANAGING COMMITTEE OF
THE 1ST RESPONDENT.
