Nasarudeen vs The Secretary
2021 Latest Caselaw 14793 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                        WP(C) NO. 16456 OF 2017
PETITIONER/S:

          NAZARUDEEN, S/O MYTHEENKUNJU RAWTHER, RESIDING AT
          KUZHIVILA PUTHENVEEDU, URUKUNNU P.O., THENMALA,
          PUNALUR, KOLLAM DISTRICT

          BY ADV SRI.B.KRISHNA MANI



RESPONDENT/S:

          THE SECRETARY, LOCAL SELF GOVERNMENT INSTITUTIONS,
          GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695001

          THE SECRETARY, THENMALA GRAMA PANCHAYAT, THENMALA,
          KOLLAM DISTRICT - 691309

          R1 BY SRI. SURIN GEORGE IPE, SR.GP

          R2 BY SRI.N.UNNIKRISHNAN




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16456 OF 2017
                                            2

                                    JUDGMENT

Petitioner herein is in possession of 12 cents of property located on the

southern side of Kollam - Chengotta road, National Highway. According to

the petitioner, the property is a lease hold right given by the Forest

Department to the ancestors of the petitioner. Petitioner submitted an

application seeking building permit, however, without securing a building

permit, construction was started. Apparently, the Secretary of the Thenmala

Grama Panchayat, i.e., the 2nd respondent, issued a stop memo, directing the

petitioner to show cause or demolish the illegal construction carried out, or

seek regularization of the construction carried out by the petitioner. It is at

that stage of the proceedings, seeking the following reliefs, petitioner has filed

this writ petition.

"i) Issue a writ of mandamus or any other appropriate writ, order or direction directing respondents to allot a new building number in the property comprised in Ext.P1.

ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing respondents to continue with the number 7/12 borne out in terms of Exts. P2 to P4.

iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2 nd respondent to dispose of Ext.P11 forthwith.

iv) Award costs and WP(C) NO. 16456 OF 2017

v) Any other reliefs this Hon'ble Court deems fit."

2. The Panchayat has filed a counter affidavit basically contending as

follows:

"7. Further, the averments in the writ petition show that without obtaining any building permits, as required, they have constructed new buildings, made alternations and modifications to the existing buildings. They stand exposed for violation of provisions of Kerala Panchayat Raj Act, 1994 (in short 'the Act') a well as Kerala Panchayat Building Rules, 2011 (in short, "KPBR'). Photographs produced in the writ petitions go against them. They have violated the provisions contained in Section 235 of the Act as well as Rules 4, 6, 7, 20 and 22 of the KPBR.

8. The Chapter XXI of the Act deals with buildings. Section 235A of the Act enabled to make building rules, resulted in KPBR, 2011. Since no steps were taken against the Stop Memos issued by this respondent (Annexures - R2(B) to R2(G) in Exhibit R5(A) Counter Affidavit above, it has become final. Since the matter is pending in W.P. (C).No.37625/2015, further steps were not taken by this respondent. King attention is drawn to Sections 235F, 235Z and 235W of the Act.

9. Kindly refer to KPBR, 2011. Rule 2(m) defines 'building'. Rule 2(cu) defines 'construction'. Rule 3 made applicable the KPBR, 2011. Chapter-2 relates to Permit. Rule 4 is mandatory to obtain permit from the Panchayat.

Admittedly, the petitioner had not taken any steps wither WP(C) NO. 16456 OF 2017

under the Act or under the Rules nor he had obtained any permit from the Panchayat. His building is liable to be demolished. Since he is Respondent No.7 in W.P. (C).No.37625/2015, pending, which is suppressed, he cannot plead ignorance also. Rule 4(2) and (3) may kindly be referred to. He ought to have submitted proper Application along with all require documents as stipulated under Rule 6 of the KPBR. He has not cared to do so. Rule 7 deals with 'Application for Permit for construction of building. Rule 7(11) is very specific. No application was submitted by the petitioner. His contention that since other violators have constructed he may also be permitted to do so. It cannot be accepted. Rule 20 enables the Secretary to take steps against such illegal and un authorised construction. Rule 22 specifically deals with Duties and Responsibilities of owner. The petitioner has failed to discharge his duties and responsibilities. In John vs. State of Kerala [2004(2) Kerala 88] the object of formulating building rules is expired.

10. Paragraph two in the Exhibit P11 representation itself shows that the petitioner renovated the building without obtaining any permission from the Panchayat. Rule 7(17) of the Kerala Panchayat Building Rules, 2011 is violated.

11. The contention of the petitioner that since others have also encraoched the forest land and he is entitled to get building number cannot be accepted. Before constructing building it was necessary to get the building permit.

12. Forest land encroachments cannot be legalized by accepting some penalty by forest officers, as diminishing WP(C) NO. 16456 OF 2017

forest area is a national issue and time and again the Hon'ble Supreme Court has also expressed concern. Establishment of Green Tribunals can not be defeated.

13. The petitioner has not showed any right to get building permit or building number in accordance with law. If others have got undue advantage or benefits through illegal means, it cannot justify the repetition of such mistakes.

14. Regarding para-7, kindly see that Kerala State Electricity Board has not been made a party in this writ petition. Once a building is demolished or new building is constructed, new building number is needed. The attempt of the petitioner is not justified."

3. Learned Senior Government Pleader, Sir. Surin George Ipe, has also

submitted that the constructions were carried out by the petitioner

encroaching into the forest land and therefore, the petitioner is not entitled to

secure any permit from the Grama Panchayat or seek regularization to

regularize the constructions carried out by the petitioner.

4. I have heard learned Counsel for the petitioner Sri. B.Krishnamani,

learned Senior Government Pleader Sri. Surin George Ipe, and learned

Counsel for the Grama Panchayat Sri. N.Unnikrishnan, and perused the

pleadings and documents on record.

5. The paramount contention advanced by the petitioner is that,

petitioner has only remodeled the building and therefore, it did not require WP(C) NO. 16456 OF 2017

any permit from the Grama Panchayat. The building is defined under the

Kerala Panchayat Raj Act, 1994, as follows:

"(iii) 'building' includes a house, out-house, stable, latrine, shed, hut and any other structure, whether of masonry, bricks, wood, mud, metal or any other material whatsoever;"

6. Further, Rule 10 of the Rules 2011 delineates the construction for

which permit is not necessary, which reads thus:

"10. Permit not necessary for certain works.- Notwithstanding anything contained in these rules no building permit shall be necessary for executing the following works which do not otherwise violate any provisions regarding applicable general building requirements, structural stability and fire saftey requirements of the rules, namely:-

(i) Compound Wall other than that abutting a street.

(ii) Providing or removing windows, doors or ventilators without effecting structural stability;

(iii) Providing inter-communication doors without affecting structural stability;

(iv) Providing or removing partitions other than load bearing walls;

(v) Gardening excluding any permanent structures; WP(C) NO. 16456 OF 2017

(vi) White or colour washing;

(vii) Painting;

(viii) Petty repairs to the building and pitched roof without affecting structural stability;

(ix) Plastering and patch works;

(x) Interior decoration without any structural alternations;

(xi) Changing the location of the building or construction within the plot;

(xii) Huts, except huts adjacent to roads mentioned in section 235P of the Kerala Panchayat Raj Act, 1994.

7. Going by the pleadings put forth by the petitioner itself, it is clear that

the petitioner has carried out the construction over looking the relaxation

given in Rule 10 of Rules 2011, and therefore, petitioner ought to have sought

for a permit from the Grama Panchayat. Anyhow, the stop memo issued by

the Secretary of the Grama Panchayat shows that the construction was

completed by the petitioner. The Secretary of the Grama Panchayat is not

liable to grant any occupancy certificate or building number to the petitioner,

unless the petitioner produces the completion certificate along with the

completion plan, before the Secretary, to identify as to whether the WP(C) NO. 16456 OF 2017

constructions were carried out by the petitioner in accordance with the

provisions of the Kerala Panchayat Raj Act, 1994 and the Rules, 2011. It is

also clear from the stop memo issued by the Secretary that the Secretary was

infact requesting the petitioner to seek regularization of the building by

submitting suitable application. Taking into account the above aspects, as

also the apprehension expressed by the Secretary of the Grama Panchayat in

its counter affidavit and the contentions put forth by the learned Senior

Government Pleader, that the property in question is a forest land and the

petitioner is not entitled to get regularization of the constructions carried out,

I am of the view that the Secretary of the local body is vested with ample

powers to sort out the said issue. It is for the Secretary of the Grama

Panchayat to decide the said aspect while submitting the application by the

petitioner under Rule 25 of the Kerala Panchayat Building Rules, 2011, along

with the requisite documents seeking occupancy as well as building number.

The said provision reads thus:

"25. Completion certificate, development certificate and occupancy certificate.-(1) Every owner shall, on completion of the development or redevelopment of land or construction or reconstruction or addition or alteration of building, as per the permit issued to him, submit a completion certificate certified and signed by him, to the Secretary in the form in Appendix E:

WP(C) NO. 16456 OF 2017

Provided that in the case of buildings, other than [single residential units up to two floors with total floor area not exceeding 150 sq. Metres], the completion certificate shall be certified and signed by the owner and registered Architect or Building Designer or Engineer or Town Planner or Supervisor also as in Appendix F."

(2) The Secretary shall, on receipt of the completion certificate and on being satisfied that the development or redevelopment of land has been effected in conformity with the requirements of these rules, issue a development certificate in the form in Appendix G, not later than 15 days from the date of receipt of the completion certificate.

Provided that if no such development certificate is received within the said fifteen days, the owner may proceed as if such a development certificate has been duly issued to him.

(3) The Secretary shall, on receipt of the completion certificate and on being satisfied that the construction or reconstruction or addition or alteration has been carried out in conformity with the requirements of these rules, issue occupancy certificate in the form in Appendix H: not later that fifteen days from the date of receipt of the completion certificate:

Provided that, in case there is deficiency as per these rules in the minimum mandatory open spaces/yards [other than the distance stipulated as per Section 220(b) of the Act and rule 112 of these Rules] after WP(C) NO. 16456 OF 2017

completion of the construction, the secretary may allow a tolerance upto 5% of the minimum mandatory open spaces/yards to be provided as per these rules or (25) centimetres whichever is less for the building constructed:

Provided also that if no such occupancy certificate is issued within the said fifteen days, the owner may proceed as if such occupancy certificate has been duly issued to him

(4) The owner of a building may if he intends to occupy the building before its completion, apply to the Secretary for that purpose and the Secretary shall, on being satisfied that such occupancy will not in any way endanger life, issue occupancy certificate in respect of the completed part.

8. Therefore, I think it is only appropriate that the petitioner is given an

opportunity to file an application seeking regularization, within a time frame

and direct the Secretary of the Grama Panchayat to take a decision in the

matter within a time frame to be fixed by this Court. Be that as it may,

learned Senior Government Pleader pointed out that, since it is a forest land,

the forest department ought to have been a necessary party in the writ

petition and only with the juncture of the forest department it would be

discernible to the Secretary whether the petitioner is entitled to get

regularization of the constructions carried out.

9. Taking into account the above aspects, petitioner is granted liberty to WP(C) NO. 16456 OF 2017

submit application seeking regularization, with all attendant documents,

before the Secretary of the Thenmala Grama Panchayat, within a period of

three weeks from the date of receipt of a copy of this judgment, and if any

such application is received, the Secretary shall consider the same after

providing an opportunity of hearing to the petitioner, forest department and

any other authorities, within one month from the date of receipt of the

application as directed above, failing which, the Secretary is at liberty to

proceed in accordance with law, after providing a fresh notice.

10. When the writ petition was admitted to the files of this Court, an

interim order was passed by this Court on 19.05.2017, by which, the Secretary

of the Grama Panchayat was directed to provisionally number the building at

the risk of the petitioner. The said order would continue to be in force till

such time a decision is taken by the Secretary as directed above. Thereafter,

the parties would be guided by the orders passed by the Secretary. I also

make it clear that if the Secretary has not collected tax of the building, the

Secretary will be at liberty to do so, taking into account the provisions in the

Kerala Panchayat Raj Act, 1994, dealing with unauthorised constructions.

The writ petition is disposed of as above. Sd/-

SHAJI P.CHALY JUDGE uu/16.07.2021 WP(C) NO. 16456 OF 2017

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE RECEIPT DATED 11/12/1974 ISSUED BY THE KERALA FOREST DEPARTMENT

EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 17/12/2014

EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 17/12/2014

EXHIBIT P4 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 7/3/2017 IN RESPECT OF THE CURRENT YEAR

EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 26/12/2005 ISSUED TO ONE NASEER

EXHIBIT P6 TRUE COPY OF PHOTOGRAPH PERTAINING TO GURUMANDIRAM

EXHIBIT P7 TRUE COPY OF PHOTOGRAPH PERTAINING TO HIS BUILDING

EXHIBIT P8 TRUE COPY OF PHOTOGRAPH PERTAINING TO HIS OLD STRUCTURE

EXHIBIT P9 TRUE COPY OF PHOTOGRAPH PERTAINING TO A NEW BUILDING THAT HAS BEEN PUT UP BY ANOTHER PERSON EXACTLY ON THE OPPOSITE SIDE OF THE PETITIONER'S BUILDING

EXHIBIT P10 TRUE COPY OF THE PHOTOGRAPH

EXHIBIT P11 TRUE COPY OF THE REPRESENTATION 12-05-2017 SUBMITTED BY THE PETITIONER BEFORE THE PANCHAYAT PRAYING THAT THE EXISTING NUMBER 7/12 MAY KINDLY BE CONTINUED OR NEW NUMBER MAY BE ALLOTTED.

RESPONDENT'S EXHIBITS:-

EXHIBIT R1(A) A TRUE COPY OF COUNTER AFFIDAVIT DATED 09.10.2016 IN W.P.(C).NO.37625/2015-C ALONG WITH DOCUMENTS

EXHIBIT R2(B) A TRUE COPY OF A LETTER NO.T3/2228/17 DATED 22.05.2017 ISSUED TO THE PETITIONER