Kerala High Court
P.S. Sasikumar vs State Of Kerala on 25 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
WP(C) NO. 16135 OF 2021
PETITIONER:
P.S. SASIKUMAR
AGED 49 YEARS
MANAGER, KARUNA U.P.SCHOOL, THENNILAPURAM P.O., KAVASSERY
PANCHAYATH, ALATHUR TALUK, PALAKKAD DISTRICT.
BY ADVS.
GEORGE ABRAHAM
JOBY D JOSEPH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF
GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM - 695 001.
2 CHIEF TOWN PLANNER
TOWN PLANNING DEPARTMENT, SURAJ BHAVAN, NANDANCODE,
KAVADIYAR P.O., THIRUVANANTHAPURAM - 695 003.
3 KAVASSERY GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, KAVASSERY P.O., ALATHUR
TALUK, PALAKKAD DISTRICT - 678 543.
4 SECRETARY, KAVASSERY GRAMA PANCHAYATH
KAVASSERY P.O., ALATHUR TALUK, PALAKKAD DISTRICT - 678
543.
OTHER PRESENT:
SRI. P.S. APPU-G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16135 OF 2021
2
JUDGMENT
This writ petition is filed seeking the following reliefs:-
"(i) to issue a writ of certiorari or any other appropriate writ,
order or direction to quash Exhibit P-11 order passed by the 1 st
respondent.
(ii) to issue a writ of certiorari or any other appropriate writ,
order or direction to quash the finding rendered in Exhibit P-8
that the petitioner is not entitled for the benefit of Rule 3(C) of
the Kerala Panchayath Building Rules, 2011.
(iii) to issue a writ of certiorari or any other appropriate writ,
order or direction directing the respondents to regularise the
additional construction of the building carried out by the
Manager of Karuna UP School in Resurvey No.578/2012 of
Kavassery-II village."
2. Heard the learned counsel for the petitioner and the
learned Government Pleader. In view of the directions being
issued, notice to respondents 3 and 4 is dispensed with.
3. The petitioner, who is the Manager of an aided
school, has approached this Court challenging the rejection of
an application preferred by him for exemption from the
provisions of the Kerala Panchayath Building Rules, 2011 by
Ext.P11. The learned counsel for the petitioner submits that the
WP(C) NO. 16135 OF 2021
petitioner was neither put on notice nor heard and
consequently his contentions have not been considered while
Ext.P11 was issued. It is further contended that Ext.P11 is only
in the nature of a communication from the Secretary to
Government to the petitioner and cannot, by any stretch of
imagination, be the exercise of the executive power of the
Government in terms of Article 166 of the Constitution of India.
It is submitted that Ext.P2 would make it clear that the
petitioner has surrendered a portion of his property, free of
cost, for the widening of a road and that he would, therefore,
be entitled to exemption in terms of Rule 3(C) of the Kerala
Panchayath Bulding Rules, 2011. It is submitted that Ext.P8
report as well as Ext.P11 communication rejecting the request
of the petitioner have not considered this aspect of the matter
at all and the provisions of the Rule 3(C) have not been
properly adverted to.
4. Having heard both sides, I find that Ext.P11 is only in
the nature of a communication by the Secretary to Government
WP(C) NO. 16135 OF 2021
to the petitioner and the contentions of the petitioner
admittedly have not been considered while issuing Ext.P11. In
view of the fact that the petitioner had submitted an
application for exemption in terms of the Rules, I am of the
opinion that the rejection of the same by a communication in
the nature of Ext.P11 is completely unjustified. In the above
view of the matter, I am of the decided opinion that the issue
requires a reconsideration at the hands of the Government.
5. In the result, Ext.P11 is set aside. There will be a
direction to the 1st respondent to take up, consider and pass a
speaking order on the request made by the petitioner for
exemption in terms of Rule 3(C) of the Kerala Panchayath
Building Rules, 2011, in accordance with law. The petitioner as
well as the Local Authority shall be put on notice and heard
through any appropriate means including video conferencing
and their contentions adverted to before orders are passed as
directed above. Appropriate action shall be taken within a
period of two months from the date of receipt of a copy of this
WP(C) NO. 16135 OF 2021
judgment. The petitioner shall be free to produce a copy of this
writ petition along with a coy of the judgment before the 1 st
respondent for compliance.
This writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN
JUDGE
Bng/25.08.2021
WP(C) NO. 16135 OF 2021
APPENDIX OF WP(C) 16135/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE TITLE DEED, IN FAVOUR OF
SRI.P.S.SASIKUMAR DATED 5TH MARCH, 2020.
Exhibit P2 TRUE COPY OF ROUGH SKETCH, SHOWING THE NEW
CONSTRUCTION.
Exhibit P2A TRUE COPY OF CERTIFICATE ISSUED BY THE
PRESIDENT, KAVASSERY PANCHAYATH.
Exhibit P3 TRUE COPY OF COMMUNICATION ISSUED BY THE
SECRETARY DATED 2/3/2017.
Exhibit P4 TRUE COPY OF THE DETAILED REPORT IN FORM-
1B, FORWARDED BY THE SECRETARY, THE 4TH
RESPONDENT, DATED 2/3/2017.
Exhibit P5 TRUE COPY OF COMMUNICATION DATED 22/3/2017
ISSUED BY THE SECRETARY.
Exhibit P6 TRUE COPY OF THE STAFF FIXATION ORDER
PASSED BY THE AEO DATED 13/7/2017.
Exhibit P7 TRUE COPY OF THE CERTIFICATE ISSUED BY THE
SECRETARY, KAVASSERY GRAMA PANCHAYATH.
Exhibit P8 TRUE COPY OF THE COMMUNICATION DATED
17/11/2017 ISSUED BY THE CHIEF TOWN
PLANNER.
Exhibit P9 TRUE COPY OF THE COMMUNICATION ISSUED BY
THE 1ST RESPONDENT DATED 2/11/2018.
Exhibit P10 TRUE COPY OF THE COMMUNICATION DATED
17/12/2018 ISSUED BY THE SECRETARY.
WP(C) NO. 16135 OF 2021
Exhibit P11 TRUE COPY OF THE ORDER ISSUED BY THE 1ST
RESPONDENT DATED 12/4/2021.
