Kerala High Court
Jameela vs Mannancherry Grama Panchayat on 5 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
WP(C) NO. 13061 OF 2021
PETITIONER:
JAMEELA,
AGED 58 YEARS,
D/O.SHAHUL HAMEED,
CHIRAYIL, MANNANCHERRY.P.O,
ALAPPUZHA-688538.
BY ADVS.
T.G.SUNIL (PRANAVAM)
J.OM PRAKASH
C.X.ANTONY BENEDICT
T.S.BHARATH KRISHNA
KURIAN ANTONY MATHEW
RESPONDENTS:
1 THE MANNANCHERRY GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY,
MANNANCHERRY.P.O,
ALAPPUZHA-688538.
2 THE SECRETARY,
THE MANNANCHERRY GRAMA PANCHAYAT,
MANNANCHERRY.P.O, ALAPPUZHA-688538.
3 THE DEPUTY DIRECTOR OF PANCHAYAT,
OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT,
ALAPPUZHA.P.O-688001.
4 THE ASSISTANT DIRECTOR OF PANCHAYAT,
OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT,
ALAPPUZHA.P.O-688001.
5 THE TAHSILDAR,
AMBALAPPUZHA TALUK OFFICE,
ALAPPUZHA.P.O-688013.
WP(C) No.13061/2021
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6 THE TALUK SURVEYOR,
TALUK OFFICE,
AMBALAPPUZHA, ALAPPUZHA.P.O-688001.
7 THE VILLAGE OFFICER
KOMALAPURAM VILLAGE OFFICE,
KOMALAPURAM.P.O, ALAPPUZHA-688006.
BY ADV V.K.BALACHANDRAN
BY GOVERNMENT PLEADER SRI B.S.SYAMANTHAK
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.13061/2021
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JUDGMENT
~~~~~~~~~
Dated this the 5th day of August, 2021
The petitioner, who obtained 2.67 Ares of property
in Komalapuram Village, is before this Court seeking to
declare that the petitioner is having deemed permit for
construction of building as per Exts.P3 and P4 site plan and
building plan respectively. The petitioner seeks to direct the
2nd respondent to issue permit for construction of the building.
2. The petitioner submitted an application for Building
Permit on 28.02.2019 along with Exts.P3 site plan and P4
building plan respectively. The petitioner proposed to
construct a residential-cum-commercial building in the
property. On 25.03.2019, the 2nd respondent-Secretary to the
Panchayat issued Ext.P5 letter directing the petitioner to
produce the Pattayam and location sketch from the Village
Office. The petitioner produced the Pattayam and location
WP(C) No.13061/2021
sketch as directed. However, the building permit was not
issued.
3. Long thereafter, as per Ext.P12, the petitioner again
approached the Panchayat Council seeking issuance of
Building Permit for residential-cum-commercial building. It is
the contention of the petitioner that the Panchayat Committee
did not act on Ext.P12 also within 15 days of its receipt.
Therefore, in view of Rule 14 of the Kerala Panchayat Building
Rules, the petitioner must be treated as having deemed
Building Permit to construct the building, contends the
petitioner.
4. The Standing Counsel for respondents 1 and 2
entered appearance and filed a counter affidavit in the writ
petition. Respondents 1 and 2 stated that when the petitioner
submitted the application for building permit, the application
was not complete in all respects. The Panchayat Secretary
required the petitioner to produce a location sketch prepared
by the Taluk Surveyor showing the boundaries of the property
of the petitioner. The petitioner did not produce the said
WP(C) No.13061/2021
sketch. In such circumstances, the petitioner cannot claim
that she is holding a deemed licence.
5. The learned Standing Counsel further pointed out
that the petitioner has encroached upon puramboke land and
intends to construct the building in a plot which is enlarged by
encroachment of puramboke. A Division Bench of this Court
in the judgment in W.P.(C) No.5756/2017 has directed the
Panchayat authorities as well as Government to remove all
unauthorised encroachments on both sides of puramboke
land in Matayamthodu. Pursuant to the directions of the
Division Bench contained in W.P.(C) No.5756/2017, the
Secretary to the Panchayat had issued Ext.R1(a) notice to the
petitioner in Form-B invoking Section 12 of the Kerala Land
Conservancy Act. The petitioner did not respond to the said
notice. Since proceedings against the petitioner under the
Land Conservancy Act are pending, the petitioner cannot
insist on grant of Building Permit.
6. Heard the learned counsel for the petitioner and the
learned Standing Counsel for respondents 1 and 2, as also
WP(C) No.13061/2021
the learned Government Pleader representing respondents 3
to 6.
7. It is discernible from the pleadings in this writ
petition and the arguments raised on either side that the
petitioner had applied for a Building Permit as early on
28.02.2019. It is the contention of the Standing Counsel for
respondents 1 and 2 that the petitioner was orally required to
produce a location sketch prepared by the Taluk Surveyor
showing the boundaries of his property. The petitioner would
vehemently deny the same. The petitioner would state that
she came to know of this requirement for the first time when
the Deputy Director of the Panchayat issued Ext.P10
communication dated 29.07.2020. The petitioner would swear
that thereupon, the petitioner has produced the requisite
location sketch prepared by the Taluk Surveyor though she
has not kept a copy thereof. The learned Standing Counsel
will dispute the claim of the petitioner that she has submitted
such a sketch.
WP(C) No.13061/2021
8. Anyway, if the petitioner had not produced the
sketch as required by the Secretary, the application of the
petitioner could have been rejected by the Secretary to Grama
Panchayat. There was no rejection. It was in such
circumstances that the petitioner approached the Panchayat
Council as per Ext.P12.
9. Rule 14 of the Kerala Panchayat Building Rules,
2019 mandates that the Village Panchayat shall, if the
Secretary, neither approves nor disapproves a building site,
neither gives nor refuses permission to execute any work
within thirty days from the date of receipt of the application, on
the written request of the applicant, be bound to determine
whether such approval or permission should be given or not.
It was under Rule 14(1) that the approached the Council with
Ext.P12. As per Rule 14(2), where the Village Panchayat
does not, within thirty days from the date of receipt of such
written request, determine whether such approval or
permission should be given or not, such approval or
permission shall be deemed to have been given, and the
WP(C) No.13061/2021
applicant may proceed to execute work, but not so as to
contravene any provision of the Act or the rules or bye-laws
made thereunder. In view of the clear provision contained in
Rule 14 of the Kerala Panchayat Building Rules, 2019, the
petitioner indeed has the benefit of deemed licence.
10. The contention of respondents 1 and 2 is that the
properties on both sides of the Matayamthodu were measured
and all encroachments were marked and the petitioner is one
of such encroachers. The petitioner has been issued
Ext.R1(a) notice invoking Section 12 of the Kerala Land
Conservancy Act and the petitioner has not responded to
Ext.R1(a). The counsel for the petitioner, on the other hand,
would contend that such a notice is required to be personally
served on the petitioner, which has not been done. This Court
do not propose to enter into the dispute raised by the learned
counsel for the petitioner in that regard. It is made clear that
this judgment will not preclude respondents 1 and 2 from
proceeding against the petitioner pursuant to Ext.R1(a), in
accordance with law.
WP(C) No.13061/2021
In such circumstances, the writ petition is disposed
of declaring that the petitioner is having deemed permit for the
construction of the building as per Exts.P3 and P4 site plan
and Building Plan respectively. The respondents will be at
liberty to proceed against the petitioner under the Kerala Land
Conservancy Act in accordance with law.
Sd/-
N. NAGARESH, JUDGE
aks/06.08.2021
WP(C) No.13061/2021
APPENDIX OF WP(C) 13061/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SALE DEED NO.1888/18 DATED
13.08.2018.
EXHIBIT P2 TRUE COPY OF TAX RECEIPT DATED
04.09.2020 ISSUED FROM THE OFFICE OF
THE 7TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE SERVICE PLAN ALONG
WITH THE SITE PLAN.
EXHIBIT P4 TRUE COPY OF THE PLAN SHOWING THE
PROPOSED SHOP ROOMS AND RESIDENTIAL
BUILDING OF THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE LETTER NO.B.T.3538/19
DATED 25.03.2019 OF THE 2ND RESPONDENT
EXHIBIT P6 TRUE COPY OF FORM 6 NOTICE DATED
18.09.2019 ISSUED BY THE 6TH
RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE LOCATION SKETCH AND
SURVEY SKETCH.
EXHIBIT P8 TRUE COPY PATTAYAM DATED 26.12.1990
ISSUED FROM THE AMBALAPPUZHA TALUK
OFFICE.
EXHIBIT P9 TRUE COPY OF REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE 3RD
RESPONDENT.
EXHIBIT P10 TRUE COPY OF LETTER NO.C6-2220/20 DATED
29.07.2020 OF THE 4TH RESPONDENT.
EXHIBIT P11 TRUE COPY OF STOP MEMO NO.01/2021 DATED
04.04.2019 ISSUED BY THE 7TH
RESPONDENT.
EXHIBIT P12 TRUE COPY OF APPLICATION DATED
22.02.2021 SUBMITTED BEFORE THE 1ST
RESPONDENT.
EXHIBIT P13 TRUE COPY OF ACKNOWLEDGEMENT RECEIPT
DATED 22.02.2021 ISSUED FROM THE
PANCHAYATH
EXHIBIT P14 TRUE COPY OF THE APPLICATION DATED
23.02.2021 SUBMITTED BEFORE THE 1ST
RESPONDENT.
WP(C) No.13061/2021
RESPONDENTS' EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE REGISTERED NOTICE
DATED 18.03.2021 SENT TO THE PETITIONER
EXHIBIT R1(B) TRUE COPY OF THE ADDRESS PORTION OF THE
RETURNED COVER
SR
