Kerala High Court
Vincy Varghese vs State Of Kerala on 7 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
WP(C).No.20867 OF 2020(G)
PETITIONER:
VINCY VARGHESE
AGED 38 YEARS
W/O VARGHESE, OLYPARAMBIL HOUSE, NAYARAMBALAM P.O,
NAYARAMBALAM VILLAGE,
KOCHI TALUK,
ERNAKULAM DISTRICT-682509.
BY ADVS.
SRI.K.A.MANZOOR ALI
SRI.JACOB GEORGE (PARAVUR)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS REVENUE SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 DEPUTY DIRECTOR OF PANCHAYATH
OFFICE OF THE DIRECTOR OF PANCHAYATH,
CIVIL STATION, THRIKKAKARA, KAKKAND,
KERALA-682030.
3 THE SECRETARY
NAYARAMBALAM GRAMA PANCHAYATH,
GRAMA PANCHAYATH OFFICE,
NAYARAMABALAM P.O,
ERNAKULAM DISTRICT-682509.
4 T. V SAJEEVAN
AGED 50 YEARS
S/O VISWAMBARAN,
THILEPARAMBIL, NAYARAMBALAM KARA,
NAYARAMBALAM VILLAGE,
KOCHI TALUK,
ERNAKULAM DISTRTICT-682509.
5 MITHUN P.J
S/O JAYAN, PAYYAPPILLY,
KALAVANPARA ROAD,
NAYARAMBALAM,
WP(C).No.20867 OF 2020(G)
2
ERNAKULAM DISTRICT-682509.
6 SUMA VENU
W/O VENU, RAMANKODATH, SEASHORE ROAD, ATH
TOURIST HOME, WEST NAYARAMBALAM, ERNAKULAM
DISTRICT-682509,
(PANCHAYATH MEMBER OF WARD NO.14 OF
NAYARAMBALAM GRAMA PANCHAYATH).
7 THE SUB INSPECTOR OF POLICE
POLICE STATION NJARKKAL, PIN-682505.
R3 BY SHRI.K.N.CHANDRABABU, SC, NAYARAMBALAM
GRAMAPANCHAYAT
R5 BY ADV. SRI.ANIL S.RAJ
R5 BY ADV. SRI.RADHIKA RAJASEKHARAN P.
R5 BY ADV. SMT.ANILA PETER
R5 BY ADV. SRI.K.P.SHIBU
R5 BY ADV. SMT.P.A.SULEKHA
R5 BY ADV. SRI.SAJEN THAMPAN
R5 BY ADV. SMT.K.N.RAJANI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14-12-2020, THE COURT ON 07-01-2021 DELIVERED THE
FOLLOWING:
WP(C).No.20867 OF 2020(G)
3
W.P.(C) No.20867 of 2020
---------------------------------------------------
JUDGMENT
Petitioner was issued Ext.P6 notice by the third
respondent, the Secretary of the Nayarambalam Grama
Panchayat, calling upon her to remove a compound wall
constructed by her, alleging that the construction is
unauthorised. It is stated in Ext.P6 notice that the same was
issued under Section 235W of the Kerala Panchayat Raj Act,
1994 (the Act). The petitioner has caused to send a reply to
Ext.P6 notice contending that the compound wall constructed
by her is not unauthorised. Ext.P7 is the reply sent to the
Panchayat on behalf of the petitioner. The petitioner was
issued Ext.P8 order calling upon her to remove the alleged
unauthorised construction referred to in Ext.P6 again. In
Ext.P8 order, it is stated that if the petitioner does not comply
with the requirement therein, the alleged unauthorised
construction will be removed by the Panchayat. Ext.P8 order
is issued styling it as one issued affirming Ext.P6 notice.
WP(C).No.20867 OF 2020(G)
Ext.P8 order is under challenge in the writ petition.
2. Heard the learned counsel for the petitioner
as also the learned Standing Counsel for the Panchayat.
3. The main contention of the petitioner is that if
the construction is unauthorised, the same can be removed
only in accordance with the provisions in Section 235W of the
Act and that Ext.P8 order cannot be construed as one issued
in terms of the said statutory provision.
4. Section 235W of the Act dealing with
demolition or alteration of building works unlawfully
commenced, carried on or completed, reads thus:
"235W. Demolition or alteration of building works
unlawfully commenced, carrying on or completed. -
(1) Where the Secretary is satisfied that - (i) the construction or
reconstruction or alteration of any building -
(a) has been commenced without obtaining the permission of
the Secretary or in contravention of the decision of the village
panchayat; or
(b) is being carried on, or has been completed otherwise than in
accordance with the plans, specifications, or information on
which such permission or decision was based; or
WP(C).No.20867 OF 2020(G)
(c) is being carried on, or has been completed in contravention
of any of the provisions of this Act or any rule or bye-law or
order made or issued thereunder or any direction or requisition
lawfully given or made under this Act, such rule, bye-law or
order; or
(ii) any alteration required by notice issued under section 235 N
has not been duly made; or
(iii) any alteration of or addition to any building or any other
work made or done for any purpose in or upon any building has
been commenced or is being carried on or has been completed
in contravention of the provisions of section 235-V, he may
make a provisional order requiring the owner or the person for
whom the work is done, to demolish the work done, or any part
of it as, in the opinion of the Secretary, has been unlawfully
executed or to make such alteration as may be necessary to
bring the work in conformity with the provisions of this Act, bye-
laws, rules, direction, order or requisition as aforesaid or with
the plans and specifications on which such permission or
decision was based, and may also direct that until the said
order is complied with, the owner or such person shall refrain
from proceeding with the work:
Provided that the Secretary may, on realization of a
compounding fee as may be fixed by Government, regularize
any construction, re-construction, or alteration of the building,
commenced, carried on or completed without getting a plan
approved by the Secretary or in deviation of the plan approved
by him, if such construction or alteration of the building does
not contravene any of the criteria or specifications mentioned in
the Act or the rules made thereunder.
WP(C).No.20867 OF 2020(G)
(2) The Secretary shall serve a copy of the provisional order
made under sub-section (1) on the owner or the person for
whom such work is done together with a notice requiring him to
show cause within a reasonable time, to be specified in such
notice, why the order should not be confirmed.
(3) where the owner or the person for whom the work is done
fails to show cause to the satisfaction of the Secretary, the
Secretary may confirm the order or modify the order to such an
extent as he may think fit to make and such order shall then be
binding on the owner or the person for whom the work is done
and on the failure to comply with the order, the Secretary may
himself cause the building or part thereof, demolished, as the
case may be, and expenses thereof shall be recoverable from
the owner or such person.
(4) Notwithstanding anything contained in sub-section (2) or
sub-section (3), prosecution proceedings may be initiated
against the owner or the person for whom the work is done.
(5) Where the Government is satisfied that the construction, re-
construction or alteration of any building has been carried out in
violation of any of the provisions of this Act or any rule made
thereunder or any direction lawfully given by the Government or
Secretary, the Government may direct the Secretary of the
Village Panchayat to cause the demolition of such construction,
re-construction or alteration and if such direction is not
complied within the time limit specified in such direction, the
Government may arrange its demolition and the cost there of
shall be recovered from the Village Panchayat."
As evident from the extracted provision, sub-section (1) of
WP(C).No.20867 OF 2020(G)
Section 235W of the Act confers power on the Secretary of the
Panchayat to make a provisional order requiring demolition of
any work which, in the opinion of the Secretary has been
constructed, violating the provisions of the Act. Sub-section
(2) of Section 235W, however, provides that the Secretary
shall serve a copy of the provisional order made under
subsection (1) on the person for whom the construction was
made with a notice requiring him to show cause within a
reasonable time to be specified in such notice, why the order
should not be confirmed. Sub-section (3) provides that if the
person for whom the construction is made fails to show cause
to the satisfaction of the Secretary as to why the construction
shall not be demolished, the Secretary may confirm the order
or modify the order to such an extent as he may think to make
and such order shall then be binding on the person for whom
the construction has been carried out, and that on failure to
comply with that order, the Secretary may himself cause the
building or part thereof, demolished, as the case may be, and
the expenses thereof shall be recovered from such person.
5. Ext.P6 notice issued by the Secretary of the
WP(C).No.20867 OF 2020(G)
Panchayat to the petitioner purportedly under Section 235W of
the Act reads thus:
"സൂചന 1 പകകരമള അപപകയയൽ അപനനഷണണ നടതയയതയൽ തകങളടട
അധധനതയയലലകത സലതത നടതയയയടള മതയൽ നയർമകണണ അനധയകതമകടണനത
പബകധധ്യടപ്പെടയടളതകയയ സൂചന 2 പകകരണ ഈ ഓഫധസയൽ അറയയയപ്പെത ലഭയചയടണത.
ആയതയനകൽ പകരളക പഞകയതത രകജത ആകത 235 ഡബബ പകകരണ പമൽ നയർമകണണ
ഈ കതത കകപ്പെറയ 15 ദയവസതയനളയൽ ടപകളയചത നധപകണതണ പസത വയവരണ ഈ
ഓഫധസയൽ പരഖകമലണ അറയയയപകണതമകണത. അലകതപകണ പമൽ ആകത പകകരണ
അനധയകതമകയയ നയർമകണണ നടതയയ മതയൽ ഈ ഓഫധസയൽ നയനണ ടപകളയചത
മകറനതകടണനണ അതയനപവണയ വരന ടചലവത തകങളയൽ നയനണ
ഈടകകനതകടണനണ തകങടള ഇതയനകൽ അറയയയകന".
Ext.P6 cannot be accepted as a provisional order cum show
cause notice falling under Section 235W(1) of the Act, for the
same directs the petitioner to demolish the alleged
unauthorised construction straight away without affording the
petitioner an opportunity to show cause against the proposed
decision of the Panchayat to demolish the said construction.
Coming to Ext.P8 order, the same is one issued without
considering the objection raised by the petitioner in Ext.P7
reply and without affording the petitioner an opportunity of
hearing. Ext.P6 notice and Ext.P8 order, in the circumstances,
are liable to be interfered with.
In the result, the writ petition is allowed and Ext.P6
WP(C).No.20867 OF 2020(G)
notice and Ext.P8 order are quashed. It is, however, made
clear that this order will not preclude the Panchayat from
initiating proceedings in respect of the alleged unauthorised
construction referred to in Ext.P6 notice and Ext.P8 order in
accordance with Section 235W of the Act after affording the
petitioner an opportunity of hearing. All other contentions of
the parties are left open.
Sd/-
P.B.SURESH KUMAR, JUDGE.
PV
WP(C).No.20867 OF 2020(G)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED
8.3.2016 FILED BY THE RESPONDENTS 4
AND 5
EXHIBIT P2 TRUE COPY OF THE REPORTS OF THE
VILLAGE OFFICER DATED 20.08.2015.
EXHIBIT P3 TRUE COPY OF THE REPORTS OF THE
TAHASILDAR KOCHI DATED 19.04.2016
SUBMITTED TO THE SUB COLLECTOR FORT
KOCHI.
EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE
MUNSIFF COURT KOCHI IN I.A.
NO.1099/2016 IN O.S. NO.138/2016.
EXHIBIT P5 TRUE COPY OF THE PRINT OUT OF THE
PROCEEDINGS IN O.S.138/2016 DATED
6.11.2019 OF THE MUNSIFF COURT KOCHI.
EXHIBIT P6 TRUE COPY OF THE NOTICE DATE 3.09.2020
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
EXHIBIT P7 TRUE COPY OF THE REPLY DATED 8/9/2020
ISSUED BY THE PETITIONER TO THE 3RD
RESPONDENT.
EXHIBIT P7(a) TRUE COPY OF THE ACKNOWLEDGMENT CARD
SHOWING THE RECEIPT OF THE EXT.P7
REPLY NOTICE BY THE 3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE FINAL ORDER DATED
29.09.2020 ISSUED BY THE 3RD
RESPONDENT TO THE PETITIONER.
RESPONDENTS' EXHIBITS:
EXHIBIT-R3(A) A TRUE COPY OF THE LETTER NO.ADP-
EKM/31/2020-PA2 DATED 12/08/2020
ISSUED BY THE DEPUTY DIRECTOR OF
WP(C).No.20867 OF 2020(G)
PANCHAYAT TO THE 3RD RESPONDENT
EXHIBIT R3(B) A TRUE COPY OF THE ORDER NO.B4
8134/2020 DATED 3/09/2020 ISSUED BY
THE 3RD RESPONDENT TO THE PETITIONER
EXHIBIT R3(C) A TRUE COPY OF THE REPLY DATED
08/09/2020 ISSUED TO THE 3RD
RESPONDENT BY ADVOCATE JACOB JEORGE
EXHIBIT R3(D) A TRUE COPY OF THE REPORT NO.S2-
21510/2015 DATED 19/04/2016 SUBMITTED
BY THE TAHSILDAR, KOCHI TO THE SUB
COLLECTOR FORT KOCHI
EXHIBIT R3(E) A TRUE COPY OF THE COMPLAINT RECEIVED
BY THE SECRETARY OF THE NAYARAMBALAM
GRAMA PANCHAYAT ON 13/12/2019
EXHIBIT R3(F) A TRUE COPY OF THE STOP MEMO ISSUED BY
THE 3RD RESPONDENT TO THE PETITIONER
EXHIBIT R3(G) A TRUE COPY OF THE REPORT DATED
6/02/2019 SUBMITTED BY ADVOCATE
COMMISSIONER IN OS NO.138 OF 2016
EXHIBIT R3(H) A TRUE COPY OF THE ADVOCATE
COMMISSIONERS REPORT DATED 6/8/2019
SUBMITTED BEFORE THE MUNSIFF'S COURT
KOCHI IN OS NO.138/2016
EXHIBIT R3(I) A TRUE COPY OF THE FINAL ORDER
NO.B4/8134/2020 DATED 29/9/2020
