N.Abdulla vs Kumbala Grama Panchayat
2021 Latest Caselaw 14806 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
       FRIDAY, THE 9TH DAY OF JULY 2021 / 18TH ASHADHA, 1943
                       WP(C) NO. 30627 OF 2011
PETITIONER/S:

    1     N.ABDULLA, AGED 62 YEARS,
          S/O.MOHAMMED HAJI, KUNDAMKARAD KA HOUSE,, NADUTHOPPU
          MANZIL, KUMBALA P.O.,, KASARAGODE DISTRICT.

    2     BADURUNNISA, W/O.ABBAS,
          C.H.C.ROAD, KUMBALA P.O., KASARAGODE DISTRICT.

          BY ADV SRI.V.M.KRISHNAKUMAR


RESPONDENT/S:

    1     KUMBALA GRAMA PANCHAYAT, KUMBALA P.O.,
          KASARAGODE DISTRICT, REPRESENTED BY ITS SECRETARY,,
          PIN-671321.

    2     K.M.MOHAMMED, S/O.ABBAS KM MANZIL,
          P.H.C.ROAD, KUMBALA, KASARGOD DISTRICT,, PIN-671321.

          BY ADVS.
          SRI.I.J.AUGUSTINE
          SRI.BENOJ C AUGUSTIN
          SRI.NAGARAJ NARAYANAN
          SRI.M.NOOHUKUNJU SAHIB
          SRI.PRATHAP PILLAI
          SRI.RAJAN VELLOTH
          SRI.M.SASINDRAN
          SRI.SAIJO HASSAN
          SRI.SEBIN THOMAS



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.07.2021, THE COURT ON 15.07.2021 DELIVERED THE FOLLOWING:
 WP(C) NO. 30627 OF 2011
                                       2


                                  JUDGMENT

This writ petition is filed by the petitioners, basically challenging

Ext.P12 order passed by the Tribunal for Local Self Government

Institutions in Appeal No.527/2011 dated 15.10.2011, whereby, the Appeal

filed by the petitioners were dismissed, holding that the order passed by

the Secretary of the Kumbala Special Grade Grama Panchayat, under

Section 235(W) of the Kerala Panchayat Raj Act, 1994 (hereinafter called

'the Act, 1994'), directing the petitioners to demolish certain illegal

constructions, is in accordance with law. Brief material facts for the

disposal of the writ petition are as follows:

2. Petitioners are the owners of an extent of 10 cents of land in

Re.Sy.No.113/11 and 10 of Koipady village by virtue of registered sale deed

No.2604/2003 of the office of sub-registrar Kasargod. Admittedly, an

extent of 1.25 cents of land was acquired for the purpose of widening the

existing National Highway. Case of the petitioners is that, though the

property was acquired, it was not physically taken out from the entire

extent at the time of construction of the building. In the year 2009, which

according to the petitioners after eight years of construction, the Secretary

of the Kumbala Grama Panchayat has issued a notice to the petitioners,

alleging that the petitioner's building on the northern end is not having the WP(C) NO. 30627 OF 2011

necessary three metre open space from the public road, as is contemplated

under Section 220(b) of the Act, 1994, as there is a shortage of 25 cms on

the northern portion of the petitioner's building. In response to the notice

under Section 235 (W), petitioners have filed an objection. The said order

was challenged by the petitioner before the Tribunal for Local Self

Government Institutions in Appeal No.101/2008, which was disposed of

directing the Secretary to initiate fresh proceedings as indicated in the

order of the Tribunal, after setting aside the proceedings of the Secretary,

and in contemplation of Section 235(W) of the Act, 1994, without any

unnecessary delay.

3. Admittedly, the Panchayat thereafter issued a notice on

30.08.2008, requiring the petitioners to demolish 25 cms of the building

which was constructed in violation of Section 220(b) of the Act, 1994.

Petitioners have filed objections against the provisional order and also filed

a regularization application. Subsequently, a final order was passed on

24.04.2009, directing the petitioners to demolish a portion of the building.

The said final order was challenged by the petitioners by filing Appeal

No.541/2009 before the Tribunal. The Tribunal again, as per Ext.P8 order

dated 30.07.2009, set aside the order of the Secretary and directed the

Secretary to initiate fresh proceedings. The Secretary, thereafter, WP(C) NO. 30627 OF 2011

proceeded and passed Ext.P9 order dated 02.07.2011, directing the

petitioners to demolish the unauthorized structure, i.e., 25 cms constructed

in violation of Section 220(b) of the Act, 1994. The said order was

challenged by the petitioners in Appeal No.527/2011 which is the subject

matter of the instant writ petition. The Tribunal, after considering the

contentions put forth by the petitioners, has arrived at the conclusion that,

since there are clear cut findings with respect to the violation of Section

220(b) of the Act, 1994, petitioners are liable to demolish the illegal

construction carried out. It is thus challenging the illegality and

correctness of the said judgment, this writ petition is filed.

4. The paramount contention advanced by the petitioners is that, the

Tribunal was depending on a file submitted by the Panchayat to arrive at

the conclusion that the building of the petitioners is situated 25 cms inside

the three metre distance from the National Highway. It was also

contended that, before entering into such a finding, the petitioners were

not given an opportunity to peruse the file produced by the 1 st respondent,

and therefore, the order passed by the Tribunal is violative of the principles

of natural justice. Petitioners also contended that the construction of the

building was carried out on the basis of Ext.P1 plan, which was approved

by the Assistant Engineer of the Public Works Department, National WP(C) NO. 30627 OF 2011

Highway, State of Kerala. It was further submitted that, at the time of

construction of the building, the property acquired was not utilized for the

purpose of National Highway and the petitioners have constructed the

building bonafidely, and if as a matter of fact, petitioners were aware of the

shortage of 25 cms, there was no difficulty for them to shift the building 25

cms eastwards to avoid the alleged violation of Section 220(b) of the Act,

1994. Other contentions are also raised.

5. I have evaluated the rival submissions made across the Bar and

perused the pleadings and the materials on record.

6. The issue raised by the petitioners revolves around Section 220(b)

of the Kerala Panchayat Raj Act, 1994, which reads thus:

"220.Prohibition of constructions in or over public roads, etc.- Notwithstanding anything contained in this Act no person shall,-

a.xxxxxx

b. Construct any building or structure other than a compound wall in any land abutting any National Highway, State Highway, District roads or any other roads notified by the village panchayat within a distance of three metres from the boundary of his WP(C) NO. 30627 OF 2011

land abutting the road.

[Provided that, the said limit of three metres shall not be applicable for the construction of 1st floor or 2nd floor or both upon a building, existing on the date of coming into force of this Act.

Provided further that, any path, bridge or similar constructions used solely for entering into any building or weather shade or sun-shade forming part of the building may, subject to the rules regarding construction of building, be constructed within the said three metres limit.

Provided also that, when an existing portion of a building is to be demolished for the implementation of a Town Planning Scheme it shall not be in such a manner that it would adversely affect the remaining building or the additions to be made, and the full responsibility of the safety and stability thereof shall vest with the owner of the building, and when he has to undertake such a demolition it shall be done at his own expense and responsibility, and he shall not be eligible for any damages for the said construction and for this purpose a consent certificate shall be produced along with the application.]"

7. It is clear from the said provision that the said provision is WP(C) NO. 30627 OF 2011

incorporated in the Act, 1994 to ensure that, any property owner

constructing a building is liable to leave three metres from the National

Highway, state highway and other roads specified thereunder . It is an

admitted fact that the construction carried out by the petitioners violates

the said provision by 25 cms. Therefore, in my considered opinion, there is

no point in contending that the Tribunal has not considered the issue

raised by the petitioners that the property acquired for the purpose of

National Highway was not taken out or demarcated from the total extent

of property of the petitioners. The Tribunal has taken into account the

entire intrinsic aspects that are involved in the factual circumstances in the

case at hand and has arrived at the finding that the order passed by the

Secretary of the Grama Panchayat is in accordance with law. The said

violation is not a curable one, clearly explicit from the proviso to Rule

25(3)of the Kerala Panchayat Building Rules 2011 dealing with completion

certificate etc, since no tolerance is permissible under law, it reads thus:

"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 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 centimetres whichever is less for the building WP(C) NO. 30627 OF 2011

constructed:

8. While considering the writ petition, this Court needs to bear in

mind that, two fact finding bodies, i.e., the Secretary of the Grama

Panchayat and the Tribunal for Local Self Government Institutions have

assimilated fact situation, taking into account the materials on record and

arrived at the conclusion that there is clear violation of Section 220(b) of

the Act, 1994. In fact, the said aspect is admitted by the petitioners.

However, the contention raised by the petitioners is that the building was

constructed some time back and therefore, the action initiated at a later

point of time, cannot be sustained under law. It is also equally important

to observe that, merely because the authority under the Public Works

Department has approved the plan drawn by the petitioners, that will not

enable the petitioners to violate any mandatory provisions of law.

Violating the provisions of law cannot have any equity, especially due to the

fact that the provisions contained under Section 220(b) is a mandatory

provision which cannot be altered by the authority or regularized by the

Secretary, even if the regularization application is filed by the petitioners to

regularize the construction. There is also no point in contending that the

building rules were not applicable to the panchayat when the building was

constructed for the basic reason that even without any rules Sec 220( b) is WP(C) NO. 30627 OF 2011

to be adhered to especially due to the fact that the prescriptions contained

therein are able to be implemented without any rules. Those are the

aspects considered by the Secretary of the Grama Panchayat as well as the

Tribunal. On going through the materials on record also, I am of the

considered opinion that the Secretary as well as the Tribunal have entered

into the findings in their respective orders, bearing in mind the factual

circumstances as well as the law on the point. To put it otherwise , the

petitioners have not placed any materials on record so as to find fault with

the findings rendered by the two fact finding bodies. Taking into account

all the above factual and legal aspects, I am of the considered opinion that

the petitioners have not made out a case for interference in the order

passed by the Tribunal, exercising the power of judicial review conferred

under Article 226 of the Constitution of India, there being no illegality,

arbitrariness or any other unfairness justifying this Court to do so.

Needless to say, the writ petition fails, accordingly it is dismissed .

Sd/-

SHAJI P.CHALY JUDGE uu 12.07.2021 WP(C) NO. 30627 OF 2011

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.2604/2003 DATED 12.07.2003

EXHIBIT P2 TRUE COPY OF THE BUILDING PLAN, OF THE BUILDING COUNTERSIGNED BY THE ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT DATED 25.5.1999

EXHIBIT P3 TRUE COPY OF THE AWARD NO.4/1992 OF THE DEPUTY COLLECTOR (LA)

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 07.04.2009 ISSUED BY THE PETITIONER

EXHIBIT P5 TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 02.05.2008

EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS DATED 23.3.2009

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 24.4.2009 OF THE KUMBALA PANCHAYAT

EXHIBIT P8 TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 30.07.2009

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 02.07.2011 OF THE 1ST RESPONDENT

EXHIBIT P10 TRUE COPY OF THE APPEAL MEMORANDUM, APPEAL NO.527/2011 FILED BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS

EXHIBIT P11 TRUE COPY OF THE SKETCH ISSUED BY THE SECRETARY OF THE PANCHAYAT

EXHIBIT P12 TRUE COPY OF THE ORDER OF THE TRIBUNAL IN APPEAL NO.527/2011 DATED 15.10.2011