Kerala High Court
John.M.Sebastian vs Marangattupilly Grama ... on 15 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942
WP(C).No.14630 OF 2019(C)
PETITIONER:
JOHN.M.SEBASTIAN, AGED 51 YEARS
S/O.SEBASTIAN, MANIKAMKUZHI HOUSE,
KURIANAD P.O., MONIPPALLY, KOTTAYAM- 686636.
BY ADVS.
SRI.MATHEW JOHN (K)
SRI.MATHEW DEVASSI
SRI.ABY J AUGUSTINE
RESPONDENTS:
1 MARANGATTUPILLY GRAMA PANCHAYATH,
REPRESENTED BY THE SECRETARY,
MARANGATTUPILLY POST, KOTTAYAM- 686635.
2 THE SECRETARY,
MARANGATTUPILLY GRAMA PANCHAYATH,
MARANGATTUPILLY POST, KOTTAYAM- 686635.
3 THE DISTRICT TOWN PLANNER,
THE OFFICE OF THE DISTRICT TOWN PLANNING
AUTHORITY, KOTTAYAM- 686001.
R1 BY ADV. SRI.SUNIL CYRIAC, SC,
MARANGATTUPALLY GRAMA PANCHAYAT, KOTTAYAM
R3 BY GOVERNMENT PLEADER
OTHER PRESENT:
GP. RENJITA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-02-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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P.B.SURESH KUMAR, J.
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W.P.(C) No.14630 of 2019
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Dated this the 15th day of February, 2021
JUDGMENT
Petitioner owns an item of property measuring 1.73 Ares
within the limits of the first respondent Grama Panchayat. The land
adjoining the land of the petitioner measuring 4.22 Ares belongs to
Maman, the brother of the petitioner. The lands of the petitioner
and his brother are lying abutting a public road. During 2005, the
petitioner and his brother decided to put up a commercial building
in the lands held by them. Constructions within the limits of the first
respondent Panchayat were not governed then by the building
rules. The procedure in place then for construction was to obtain
No-objection Certificate from the Panchayat. The petitioner and his
brother therefore applied to the Panchayat for No-objection
Certificates for their proposed construction and they have been
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issued Exts.P1 and P2 No-objection Certificates by the panchayat
subject to the condition that there shall be a minimum open space
of 3 meters from the abutting road to the building line. On the
strength of Exts.P1 and P2 No-objection Certificates, the petitioner
and his brother constructed the building proposed by them leaving 3
meters open space between the road line and the building line. On
completing the construction of the building, the petitioner applied to
the Panchayat for building number. As the road abutting the lands
was being developed then by the State Government under the
Kerala State Transport Project (KSTP), the Secretary of the Panchayat
sought the No-objection Certificate of the Executive Engineer of the
KSTP for considering the application of the petitioner for building
number. In the meanwhile, the Government extended the provisions
of the Kerala Municipality Building Rules, 1999 to all Grama
Panchayats in the State with effect from 06.06.2007. Ext.P4 is the
No-objection Certificate issued by the Executive Engineer of KSTP to
the panchayat. In Ext.P4, it is stated that if the building is one
constructed leaving 5 meters open space in between the road line
and the building line and in accordance with the building rules, the
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same can be numbered. It is stated by the petitioner that though he
has left a clear open space of 5 meters between the building line
and the road line, there is an overhanging projection in the building
to the open space to a distance of almost 1 meter. Further, the
construction of the building was not conforming to the Kerala
Municipality Building Rules, 1999 which came to be extended in the
panchayat after a substantial portion of the construction was over.
In the circumstances, building number sought by the petitioner has
been declined by the panchayat placing reliance on Ext.P4 No-
objection Certificate.
2. While so, the Kerala Panchayat Building Rules,
2011 came into force in the State. It is stated by the petitioner that
as he was assured by the Secretary of the Panchayat that the
construction would be regularized, if he prefers an application for
regularization of the construction in accordance with the said Rules,
without understanding the legal implications of making such a
request, he preferred Ext.P5 application for regularization of the
building in accordance with the said Rules. Ext.P5 application has
not been considered by the Panchayat. The petitioner then
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preferred W.P.(C) No.21748 of 2013 alleging that insofar as the
building has been constructed on the strength of Exts.P1 and P2 No-
objection Certificates long before the introduction of building rules in
the Panchayat, the Panchayat is bound to assign building number to
the said building. W.P.(C) No.21748 of 2013 was disposed of as per
Ext.P8 judgment with a direction to the Secretary of the Panchayt to
consider and pass orders on the application preferred by the
petitioner for assignment of building number. Pursuant to the
direction in Ext.P8 judgment, Ext.R2(a) order was passed by the
Secretary of the Panchayat rejecting the request of the petitioner
for assignment of building number, taking the stand that since the
building does not conform to the Kerala Panchayat Building Rules,
2011, the same cannot be numbered.
3. It is stated by the petitioner that he was thereafter
required by the Secretary of the Panchayat to prefer an application
for regularization of the construction in accordance with the Kerala
Panchayat Building (Regularization of Unauthorised Construction)
Rules, 2014 and the petitioner has accordingly submitted Ext.P11
application under the said Rules. On Ext.P11 application, the
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District Town Planner issued Ext.P12 communication to the
Secretary of the Panchayat pointing out the defects in Ext.P11
application and requiring the Secretary to cure those defects. At
that stage, it is seen that the petitioner has moved the Ombudsman
for Local Self Government Institutions, for redressal of his grievance
concerning the refusal of the Panchayat in assigning building
number to the building constructed by him. The complaint preferred
by the petitioner in this regard was disposed of by the Ombudsman
as per Ext.P13 order holding that the construction does not suffer
from any serious violations of the building rules, and directing the
Panchayat to assign building number sought by the petitioner.
Ext.P13 order has been quashed by this Court in W.P.(C) No.24199 of
2017 at the instance of the Panchayat as per Ext.P14 judgment on
the ground that the Ombudsman had no jurisdiction to issue a
direction as done in Ext.P13 order. It was however, observed in
Ext.P14 judgment that the said judgment will not preclude the
petitioner from seeking regularization of the building, after curing
the defects noted in Ext.P12 communication. As per Ext.P14
judgment, this Court also directed the Panchayat to number the
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building constructed by the petitioner provisionally subject to the
outcome of the application for regularization. Though the petitioner
challenged Ext.P14 judgment in W.A.No.2429 of 2018, the same was
later withdrawn. The present writ petition was instituted by the
petitioner thereupon seeking direction to the Panchayat to assign
building number to the building. The case set out by the petitioner
in the writ petition is that insofar as the building has been
constructed strictly in accordance with Exts.P1 and P2 No-objection
Certificates, the Panchayat cannot refuse to number the same.
4. A counter affidavit has been filed by the panchayat
contending mainly that the petitioner having not challenged
Ext.R2(a) order declining number to the building constructed by
him, he is not entitled to seek direction to the Panchayat to number
the building. It was also contended by the Panchayat in the counter
affidavit that since the petitioner has already applied for
regularization of the building in terms of the Kerala Panchayat
Building (Regularization of Unauthorised Construction) Rules, 2014
conceding that the building is unauthorised, he cannot be heard to
contend that the building is an authorised one and seek orders for
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numbering the same. It was further contended that insofar as the
direction issued by the Ombudsman for Local Self Government
Institutions to number the building of the petitioner has been
interfered with by this Court in W.P.(C) No.24199 of 2017 and insofar
as the said judgment has become final, the petitioner is not entitled
to seek the relief granted by the Ombudsman in this proceedings.
5. Heard the learned counsel for the petitioner, the
learned Government Pleader as also the learned counsel for the
Panchayat.
6. It is seen that Exts.P1 and P2 No-objection
Certificates have been issued by the panchayat to the petitioner and
to his brother during 2005. There is no dispute to the fact that the
building rules were not implemented during 2005 in the panchayat
and buildings were permitted to be constructed based on the No-
objection Certificate issued by the panchayat subject to the
condition that the construction shall conform to the requirement of
Section 220(b) of the Kerala Panchayat Raj Act, viz, that there shall
be a clear open yard of 3 meters between the building line and the
road boundary. It is also seen that the petitioner has constructed the
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building after leaving 3 meters open space between the line of the
abutting road and the building line and thereupon preferred an
application for assigning building number. It is evident from Ext.P4
communication that the petitioner preferred the application for
assigning building number before 25.6.2009. There is no dispute to
the fact that the Kerala Municipality Building Rules, 1999 was made
applicable in the panchayat with effect from 6.6.2007. Though the
panchayat has denied the averment of the petitioner in the writ
petition that he has completed the structure of the building by
March 2007, the panchayat has no case in the counter affidavit that
the petitioner has not commenced the construction of the building
before 6.6.2007. In other words, it can be certainly inferred from the
materials on record that the petitioner has commenced the
construction of the building on the strength of Exts.P1 and P2 No-
objection Certificates before 06.06.2007. As noted, though the
petitioner preferred Ext.P5 application for regularisation of the
construction when the Kerala Panchayat Building Rules, 2011 came
into force, he approached this Court later in W.P.(C) No.21748 of
2013 setting out a case that the panchayat cannot refuse building
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number to the building since the building has been constructed on
the strength of Exts.P1 and P2 No-objection Certificates. It is in the
light of the aforesaid case, this Court directed disposal of the
application for assignment of building number, instead of directing
the competent authority to consider Ext.P5 application for
regularisation. Ext.R2(a) order issued by the panchayat pursuant to
the direction issued by this Court in the said writ petition indicates
that the request made by the petitioner for assignment of building
number was declined, taking the stand that the building does not
conform to the provisions of the building rules which was in force at
the relevant time. Insofar as the panchayat has issued No-objection
Certificates to the petitioner and to his brother for construction of
the building at a point of time when the building rules were not in
force in the Panchayat and insofar as the petitioner proceeded to
construct the building on the strength of the No-objection
Certificates before the building rules were made applicable in the
Panchayat, according to me, the Panchayat is precluded from
denying building number to the building on any ground whatsoever.
I take this view also for the reason that the Panchayat has not
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interdicted the construction of the petitioner after the building rules
have been made applicable in the Panchayat.
7. As noted, the main contention of the panchayat is
that the relief sought by the petitioner in the writ petition in one
granted to the petitioner by the Ombudsman for Local Self
Government Institutions in Ext.P13 order and the said order having
been interfered with by this Court in Ext.P14 judgment, the
petitioner cannot seek the same relief again in a fresh writ petition. I
do not find any substance in this contention. A perusal of Ext.P14
judgment indicates that Ext.P13 order passed by the Ombudsman
for Local Self Government Institutions has been interfered with by
this Court solely on the ground that the Ombudsman had no
jurisdiction to entertain the complaint preferred by the petitioner
and grant the relief sought by the petitioner. The question is
whether interference with such an order of the Ombudsman by this
Court precludes the petitioner from claiming the relief granted to
him by the Ombudsman in a separate proceedings, if he is otherwise
entitled for the same. According to me, interference with such an
order passed by the Ombudsman by this Court on the ground that
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the Ombudsman had no jurisdiction to pass such an order, does not
preclude the petitioner from approaching this Court for the same
relief, if he is otherwise entitled for the same in law. True, the
position would have been different, had this Court held while
interfering with the order of the Ombudsman that the petitioner is
not entitled to the relief claimed in the proceedings before the
Ombudsman. Such a finding is absent in Ext.P14 judgment. That
apart, when this court exercises its equitable jurisdiction under
Article 226 of the Constitution, denying a relief to a person, who is
found to be entitled for the same, on technical grounds, would go
against the spirit of the said constitutional provision. In the
circumstances, according to me, the contention aforesaid of the
panchayat is unsustainable in law.
8. The next contention raised by the panchayat in the
counter affidavit is that the petitioner having applied for
regularization of the construction in accordance with the Kerala
Panchayat Building (Regularization of Unauthorised Construction)
Rules, 2014, he is precluded from contending that the construction
of the building is in order. First of all, the specific case of the
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petitioner is that he preferred the application for regularization on
the advice made by the Secretary of the Panchayat. Further, though
the petitioner preferred the application, there is nothing on record to
indicate that he has pursued the same in any manner. Further,
insofar as it is found that the Panchayat is bound to number the
building, it will be too harsh and highly unfair to deny the petitioner
a relief which he is entitled to, merely for the reason that he
preferred an application for regularization of the construction on a
wrong legal advice.
9. Another contention raised by the Panchayat is that
the petitioner is not entitled to seek directions to the Panchayat to
number the building since he has not challenged Ext.R2(a) order
earlier passed by the Panchayat declining number to the building.
This is purely a technical contention. True, the petitioner ought to
have challenged Ext.R2(a) order in this writ petition. What is
challenged by the petitioner in the writ petition in essence is the
stand taken by the Panchayat in Ext.R2(a) order in declining number
to the building. When the petitioner challenges in the writ petition
the stand taken by the Panchayat in Ext.R2(a) order in declining
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number to the building and when this court finds that the said stand
is unsustainable in law, a mere omission on the part of the petitioner
in challenging Ext.R2(a) order, according to me, cannot stand in the
way of this court granting the relief to the petitioner which he is
entitled to.
In the result, the writ petition is allowed. The second
respondent is directed to assign number to the building constructed
by the petitioner referred to in the writ petition, treating the same as
one legitimately constructed. This shall be done within two months.
Sd/-
P.B.SURESH KUMAR
JUDGE
ds 09.02.2021
W.P.(C) No.14630 of 2019
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE NO OBJECTION
CERTIFICATE ISSUED IN FAVOUR OF THE
PETITIONER.
EXHIBIT P2 A TRUE COPY OF THE OBJECTION
CERTIFICATE ISSUED IN FAVOUR OF THE
PETITIONER'S BROTHER.
EXHIBIT P3 A TRUE COPY OF THE CONSENT LETTER
DATED 15.06.2005 ISSUED TO THE
PETITIONER.
EXHIBIT P4 A TRUE COPY OF THE NO OBJECTION
CERTIFICATE ISSUED BY THE EXECUTIVE
ENGINEER DATED 25.06.2009.
EXHIBIT P5 A TRUE COPY OF THE APPLICATION BY THE
PETITIONER DATED 05.06.2011.
EXHIBIT P6 A TRUE COPY OF THE LETTER BY THE
EXECUTIVE ENGINEER TO THE SECRETARY
DATED 30.06.2011.
EXHIBIT P7 A TRUE COPY OF THE ANOTHER LETTER BY
THE EXECUTIVE ENGINEER DATED
17.04.2012.
EXHIBIT P8 A TRUE COPY OF THE JUDGMENT IN W.P.
(C)NO.21748 OF 2013 DATED 25.02.2014.
EXHIBIT P9 A TRUE COPY OF THE REPORT OF THE
ASST.ENGINEER LSGD.
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EXHIBIT P10 A TRUE COPY OF THE LETTER TO THE
PETITIONER DATED 11.04.2014 BY THE
SECRETARY OF THE GRAMA PANCHAYATH.
EXHIBIT P11 A TRUE COPY OF THE APPLICATION OF THE
PETITIONER DATED 14.11.2014.
EXHIBIT P12 A TRUE COPY OF THE LETTER OF THE TOWN
PLANNER TO THE GRAMA PANCHAYATH DATED
30.01.2015.
EXHIBIT P13 A TRUE COPY OF THE ORDER DATED
21.01.2017 BY THE OMBUDSMAN IN
O.P.NO.1901 OF 2015.
EXHIBIT P14 A TRUE COPY OF THE JUDGMENT IN W.P.
(C)NO.24199 OF 2017 DATED 27.11.2018.
EXHIBIT P15 A TRUE COPY OF THE JUDGMENT IN
W.A.NO.2429 OF 2018 DATED 14.12.2018.
EXHIBIT P16 A TRUE COPY OF THE PROCEEDINGS DATED
16.03.2019 BY THE SECRETARY OF THE
GRAMA PANCHAYATH.
EXHIBIT P17 A TRUE COPY OF THE ORDER IN R.P.NO.362
OF 2019 IN W.A.NO.2429 OF 2018.
EXHIBIT P17(A) A TRUE COPY OF THE ORDER FORM FOR
NIRMAL ROLLING SHUTTER DATED
27.09.2007 ISSUED BY ST.JUDGE
INDUSTRIES TO THE PETITIONER
EXHIBIT P18 TRUE COPY OF THE NOTICE DATED
06/07/2019 ISSUED BY THE 2ND
RESPONDENT.
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RESPONDENT'S/S EXHIBITS:
EXHIBIT R2(A) TRUE COPY OF THE ORDER BEARING NO.M-
2129/11 DATED 16/4/2014 ISSUED BY THE
2ND RESPONDENT
EXHIBIT R2(b) TRUE COPY OF THE COMPLAINT DATED
19/12/2015 FILED BY THE PETITIONER
ALONG WITH THE NOTICE, IN COMPLAINT
NO.1901/2015 BEFORE THE OMBUDSMAN FOR
LOCAL SELF GOVERNMENT INSTITUTIONS
EXHIBIT R2(C) TRUE COPY OF THE REJOINDER DATED
19/11/2016 IN COMPLAINT NO.1901/2015
FILED BY THE PETITIONER BEFORE THE
OMBUDSMAN FOR LOCAL SELF GOVERNMENT
INSTITUTIONS
