Kerala High Court

Minimol vs Secretary To Government on 15 July, 2021

               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. 20461 OF 2015
PETITIONER:

               MINIMOL
               AGED 32 YEARS
               W/O.JOY, SHYNIMA DREAM HOUSE, KATTACHIRA,
               BHARANIKKAVU VILLAGE, ALAPPUZHA

               BY ADV SRI.D.AJITHKUMAR



RESPONDENTS:

    1          SECRETARY TO GOVERNMENT
               LOCAL SELF GOVERNMENT DEPARTMENT,
               GOVERNMENT SECRETARTIAT, THRIUVANANTHAPURAM

    2          BHARANIKAVU GRAMA PANCHAYATH
               PALLIKKAL PO, ALAPPUZHA 690003
               REPRESENTED BY ITS SECRETARY

    3          SECRETARY
               BHARANIKAVU GRAMAPANCHAYATH PALLIKKAL PO,
               ALAPPUZHA 690003

            R2 & R3 BY ADV SRI.N.UNNIKRISHNAN

            R1. SRI. SURING GEORGE IP, SR. GP




        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. 20461 OF 2015
                                    -2-




                             JUDGMENT

This writ petition is filed by the

petitioner seeking to quash Ext.P5 order dated

22.03.2014; an order passed by the Secretary of

Bharanikavu Grama Panchayath, Ext.P8 order passed

by the State Government dated 01.09.2014,

apparently in a representation submitted by the

petitioner against Ext.P5 order of the Secretary

directing the petitioner to seek regularisation

of the building constructed illegally and without

securing a permit from the Grama Panchayath and

Ext.P9 order passed by the President of the Grama

Panchayath, by which the President of the Grama

Panchayath declined the request made by the

petitioner to number the building constructed

illegally.

2. Brief material facts for the disposal of WP(C) NO. 20461 OF 2015

the writ petition are as follows:

Petitioner is the owner of 1.80 Ares of

property comprised in Re-Survey No.339/15-2 and

339/11-2 of Bharanikavu Village, Alappuzha

District, purchased by the petitioner as per sale

deed No.929/13 dated 20.04.2013. According to

the petitioner, in the year 2013 petitioner

submitted an application for No Objection

Certificate (NOC) before the 2nd respondent Grama

Panchayath for construction of a house in the

above said property on the basis of the small

extent of the property enjoyed by the petitioner.

3. The case of the petitioner is that the

Secretary of the Grama Panchayath - the 3rd

respondent informed the petitioner that it has

been sanctioned. Therefore it is submitted that

without waiting for any orders from the

Secretary, petitioner started construction of the WP(C) NO. 20461 OF 2015

house in the above said property. It is the

further case of the petitioner that after

completion of the construction, petitioner

submitted completion certificate and Ext.P3 plan

in accordance with Rule 25 of the Kerala

Panchayath Building Rules, 2011 (hereinafter

referred to as 'the Rules, 2011) and allegedly

evident from Ext.P3 receipt. Therefore according

to the petitioner, eventhough the construction

was completed without securing NOC for building

permit, the Secretary of the Grama Panchath ought

to have considered the issue in respect of the

construction carried out ina small plot and

ought to have granted Occupancy certificate and

the building. Evidently being aggrieved by Ext.P5

order passed by the Secretary, petitioner has

approached the Government and as per Ext.P8

Government directed the petitioner to seek WP(C) NO. 20461 OF 2015

regularisation of the construction, since the

petitioner is not entitled to get benefit of the

construction in a small plot, which was the

finding rendered by the Secretary of the Grama

Panchayath to decline the Occupancy Certificate

to the building.

4. Thereafter, the petitioner has again

approached the President of the Grama Panchayath

and the President of the Grama Panchayath as per

Ext.P9 rightly declined to consider the request

made by the petitioner for numbering the building

because there is no power at all vested with

President to entertain any such application.

Even I doubt the power of the Government to

entertain any representation when there are

specific statutory remedies provided under the

Kerala Panchayath Raj Act, 1994 (hereinafter

referred to as 'the Act, 1994)and the Kerala WP(C) NO. 20461 OF 2015

Panchayath Building Rules, 2011 to tackle the

situation if the occupancy is declined by the

Secretary and the remedy of the petitioner was to

approach the Tribunal for Local Self Government

Institutions.

5. Whatever that be today when the matter

was taken up, learned counsel for the petitioner

fairly submitted that, petitioner may be given

the opportunity to seek regularisation of the

construction of the building as is pointed out by

the Government in Ext.P8 and the petitioner would

be satisfied with the same and he is not

inclined to press for the relief as is sought

for in the writ petition .

6. A detailed counter affidavit is filed by

the Panchayath as well as the Secretary

justifying the stand adopted in Ext.P8 and also

pointing out that the construction carried out by WP(C) NO. 20461 OF 2015

the petitioner is in violation of various

provisions of the Rules, 2011.

7. Anyhow, the Panchayath is not having a

case that petitioner has submitted any

application seeking regularization of the

building constructed by the petitioner without

securing a permit.

8. In my view it was probably for the

reason that the Rules, 2011 enables a small plot

holder to carry out the construction with certain

relaxation of the Building Rules, 2011. The

Secretary is vested with powers under Rule 134 of

the Kerala Panchayath Rules, 2011 to regularise

any construction carried out by a person without

securing any permit, if the construction is

within the frame work of the Act, 1994 and the

Rules, 2011. Probably taking into account the

said fact only the Government WP(C) NO. 20461 OF 2015

have stated in Ext.P8 that the petitioner is at

liberty to seek regularization of the building

constructed illegally.

9. Therefore after having heard learned

counsel for the petitioner Sri.D.Ajith Kumar,

learned Senior Government Pleader Sri. Surin

George Ipe and the learned counsel appearing for

respondent Nos. 2 and 3 Sri.N.Unnikrishnan, this

writ petition is disposed of leaving open the

liberty of the petitioner to approach the

Secretary of the Grama Panchayath seeking

regularization of the building by providing

required documents as is requisited in the Act,

1994 and the Rules, 2011. If the petitioner makes

any regularization application within a month

from today, it shall be considered by the

Secretary of the Grama Panchayath in accordance

with law, at the earliest possible and at any WP(C) NO. 20461 OF 2015

rate, within two months thereafter.

The writ petition is disposed of as above.

Sd/-

SHAJI P.CHALY JUDGE hmh WP(C) NO. 20461 OF 2015

PETITIONER ANNEXURE

EXT.P1: TRUE COPY OF THE SALE DEED NO.929/13 DATED 20.4.2013 EXT.P2 EXT.P2: TRUE COPY OF THE RECEIPT 7.1.2014 ISSUED BY SECRETARY, BHARANIKAVU GRAMA PANCHAYATH EXT.P3 EXT.P3: TRUE COPY OF THE COMPLETION PLAN OF THE BUILDING EXT.P4 EXT.P4: TRUE COPY OF THE REPLY DATED 18.3.2014 SENT BY PETITIONER TO THE 3RD RESPONDENT EXT.P5 EXT.P5: TRUE COPY OF THE ORDER DATED 22.3.2014 OF THE 3RD RESPONDENT EXT.P6 EXT.P6:TRUE COPY OF THE TAX RECEIPT DATED 23.7.2013 EXT.P7 EXT.P7: TRUE COPY OF THE REPRESENTATION DATED 15.3.2014 SUBMITTED BY PETITIONER TO THE CHIEF MINISTER OF KERALA EXT.P8 EXT.P8: TRUE COPY OF THE ORDER DATED 1.9.2014 OF THE 1ST RESPONDENT EXT.P9 EXT.P9: TRUE COPY OF THE DECISION TAKEN BY THE RESPONDENT PANCHAYATH COMMITTEE DATED 13.11.2014 EXT.P10 EXT.P10: TRUE COPY OF THE REPRESENTATION DATED 8.6.2015 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT RESPONDENT ANNEXURE NIL