Viju Kanatt vs Narakkal Grama Panchayath And ...
2021 Latest Caselaw 14810 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. 35214 OF 2011
PETITIONER:

          VIJU KANATT
          AGED 41 YEARS
          S/O TOM, RESIDING AT KANATT HOUSE, HOSPITAL ROAD,
          NARAKKAL, ERNAKULAM DISTRICT-682 505.
          BY ADV SRI.T.C.SURESH MENON


RESPONDENTS:

    1     NARAKKAL GRAMA PANCHAYATH,
          REPRESENTED BY ITS SECRETARY, NARAKKAL, 682 505.
    2     OMBUDMAN, LOCAL SELF GOVERNMENT INSTITUTIONS
          SAFALYAM COMPLEX, 3RD FLOOR, TRIDA BUILDING,
          PALAYAM,UNIVERSITY P.O., THIRUVANANTHAPURAM-695 034.
    3     K.J.DEVASI
          KUTTALA HOUSE, HOSPITAL ROAD, NARAKKAL, ERNAKULAM-
          682505.

          R3 BY ADV.SRI.K.K.JOHN
          R1 BY ADV.SRI.S.SHANAVAS KHAN


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.35214/2011                        2




                                     JUDGMENT

Petitioner is the owner of a two storied building bearing No.III/72(D,E)

situated in Sy.No.202/5 of Narakkal Grama Panchayat. At the instance of 3 rd

respondent viz., K.J.Deveasi, who is also a resident within the limits of the Grama

Panchayat, action was initiated against the petitioner under sections 235W (1) &

(2) of the Kerala Panchayat Raj Act. 1994. Apparently petitioner has filed an

objection to the said notice and a final order was passed by the Secretary of the

Grama Panchayat under section 235W(3) of Act, 1994, confirming the order

passed and directed the petitioner to remove the illegal construction of putting up

a weather shade over the terrace area of the first floor of the building. The final

order is dated 10.8.2010, however, the Panchayat has not taken any action.

Thereupon, 3rd respondent approached the Ombudsman for Local Self

Government Institutions, Thiruvananthapuram by filing O.P.No.64/2011, which

was disposed of as per an order dated 20th October, 2011, holding as follows:

" ORDER

This is an application filed against construction violating the Building Rules. The Panchayat has found out the violation and directed its Assistant Engineer of LSGD to demolish the unauthorized construction. But, somehow or the other, it is kept protracted in getting it implemented. That is not proper. The 2nd Respondent would submit that he may try to have some legal remedy. If the law permit so, I do not want to stand in the way

and therefore I direct the authorities not to effect the demolition for 15 days. If no order of stay is their within that time, the authorities will have to certainly implement the orders passed by it within the next 15 days.

The OP is disposed of accordingly."

2. This writ petition was filed before this Court on 27.12.2011 after Exhibit

P8 order passed by the Ombudsman. It was in fact taking into consideration the

legal remedy to be sought for by the petitioner, the Ombudsman has passed the

order. Anyhow while admitting the writ petition, an interim order of stay was

granted by this Court, which is in force now.

3. I have heard learned counsel for petitioner Sri.P.S.Appu, learned counsel

appearing for the 1st respondent Sri.S.Shanavas Khan, learned counsel appearing

for the 3rd respondent Sri.K.K.John and perused the pleadings and materials on

record.

4. The basic contention advanced by the 3 rd respondent in the counter

affidavit is that the construction carried out by the petitioner by putting up the

weather shade on the terrace area of the 1 st floor projecting to the road, is an

illegal construction without securing any permit from the Grama Panchayat and

petitioner has not secured any regularisation order from the Secretary of the

Grama Panchayat or any other statutory authority to continue with the

construction put up illegally. Other contentions are also raised. Anyhow today

when the matter is taken up learned counsel for petitioner submitted that the

Secretary of the Grama Panchayat is vested with powers under rule 134 of the

Kerala Panchayat Building Rules, 2011 to regularise any construction, if it is not

done in violation of the Rules, 2011.

5. Taking into account that aspect and since any person who has put up an

illegal construction without securing permit is entitled to approach the Secretary

seeking regularisation order, I think it is only appropriate that an opportunity is

given to the petitioner to file such an application.

6. Therefore, the writ petition is disposed of directing the petitioner to

submit a regularisation application before the Secretary of the Narakkal Grama

Panchayat within three weeks from today, and if any such application is filed, it

shall be finalised by the Secretary within one month thereafter, after providing

notice of hearing to the petitioner and the 3 rd respondent. I make it clear that if

the petitioner is not submitting the application in accordance with the directions

contained above, the Secretary will be at liberty to proceed in accordance with

law, on the basis of Exhibit P6 final order passed under section 235W of Act,

1994. This direction is issued taking into account the fact that the order was

passed by the Secretary of the Grama Panchayat invoking the powers vested on

him and the said order is surrounded by various factual circumstances, which

cannot be deciphered by this Court in a proceeding under Article 226 of the

Constitution of India. Even though if the petitioner was really aggrieved, he would

have the remedy to approach the Ombudsman for Local Self Government

Institutions by virtue of the provisions contained under Kerala Panchayat Raj Act,

1994 and the Kerala Panchayat Building Rules, 2011.

Sd/-

                                                    SHAJI P.CHALY

smv                                                     JUDGE





                        APPENDIX OF WP(C) 35214/2011

PETITIONER'S EXHIBITS:
                     P1: A TRUE COPY OF PHOTOGRAPHS OF THE
                     BUILDING.
                     P2: A TRUE COPY OF THE ORDER PASSED BY THE
                     1ST RESPONDENT DATED 29.7.2008.
                     P3: A TRUE COPY OF THE ORDER PASSED BY THE
                     1ST RESPONDENT DATED 11.8.2008.
                     P4: A TRUE COPY OF THE ORDER PASSED BY THE
                     1ST RESPONDENT DATED 19.12.2008.
                     P5: A TRUE COPY OF THE REPLY NOTICE DATED
                     2.1.2009.
                     P6. TRUE COPY OF THE FINAL ORDER ISSUED BY
                     THE 1ST RESPONDENT DATED 10.8.2010
                     P7: TRUE COPY OF THE NOTICE ISSUED BY THE 2ND
                     RESPONDENT DATED 13.10.2011.
                     P8: TRUE COPY OF THE ORDER ISSUED BY THE 2ND
                     RESPONDENT DATED 20.10.2011