Kerala High Court

M.G.Alexander vs Bharanikavu Grama Panchayath on 5 October, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
   TUESDAY, THE 5TH DAY OF OCTOBER 2021/13TH ASWINA, 1943
                     WP(C) NO. 13460 OF 2021


PETITIONER:

         M.G.ALEXANDER,
         PUTHUKULANGARA HOUSE,
         BHARANICKAVU SOUTH,
         BHARANICKAVU P.O., KAYAMKULAM,
         ALAPPUZHA, PIN-690 503.

         BY ADVS.
         AKHIL RAJ
         LIYA ELZA ALEX


RESPONDENTS:

    1    BHARANIKAVU GRAMAPANCHAYATH,
         REPRESENTED BY ITS SECRETARY,
         PALLICKAL P.O.,
         ALAPPUZHA, PIN-690 503.

    2    VALSALA MADHU, AGED 48 YEARS,
         CHEEKKULATHPRATHIBHA,
         BHARANICKAVU SOUTH,
         BHARANICKAVU P.O., KAYAMKULAM,
         ALAPPUZHA-690 503.

    3    MADHU, AGED 52 YEARS,
         CHEEKKULATHPRATHIBHA,
         BHARANICKAVU SOUTH,
         BHARANICKAVU P.O., KAYAMKULAM,
         ALAPPUZHA-690 503.

         BY ADVS.
         B.KRISHNA MANI
         DHANUJA M.S

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C)No.13460/2021

                                2



                         JUDGMENT

Dated this the 5th day of October, 2021

The petitioner, a resident of Bharanikavu Grama

Panchayat has filed this writ petition seeking to direct the 1 st

respondent Grama Panchayat to consider the complaints

and act accordingly in Exts.P4 and P6 within a time limit that

may be fixed by this Court.

2. The petitioner states that the 2 nd and 3rd

respondents are constructing a Commercial-cum

-Residential building in Bharanikavu Grama Panchayat. The

said construction is adjacent to the property of the petitioner.

Respondents 2 and 3 have constructed the building violating

the conditions of Building Permit in as much as an

unauthorised door has been opened on the northern side

violating the permit conditions. Further more, a shade has

been constructed without providing the requisite aerial

distance. The said construction of the shade violates Rule WP(C)No.13460/2021

26(10) of the Kerala Panchayat Building Rules.

3. On the basis of the complaints made, the 1 st

respondent Panchayat issued Ext.P4 letter to the petitioner

stating that the Panchayat has already intimated

respondents 2 and 3 not to make any construction violating

building rules. However, the Panchayat authorities would

not take any further steps. The petitioner therefore sent a

lawyer notice to which Ext.P6 reply was given by the

Panchayat authorities. In Ext.P6, the Panchayat authorities

stated that respondents 2 and 3 have been issued with a

letter dated 07.01.2021 requiring them to remove the shade

projection made in violation of the building rules.

4. The petitioner also stated that the petitioner had

filed O.S.No.21/2021 in the Munsiff's Court, Kayamkulam. A

temporary injunction was granted initially. However due to

the lock down imposed, the Court was not functioning.

Using this extraordinary situation and also influencing the WP(C)No.13460/2021

authorities, the 2nd and 3rd respondents restarted the

constructions on 11.06.2021. It is in such circumstances

that the petitioner has approached this Court filing writ

petition, withdrawing the civil suit. Since there is admittedly

violation of building rules and permit conditions, the 1 st

respondent is liable to be compelled to stop respondents 2

and 3 from further proceeding with the illegal construction

and also to demolish the unauthorised constructions already

made.

5. Respondents 2 and 3 entered appearance and

contested the writ petition. Respondents 2 and 3 stated that

they owned only 1.80 Ares of land and a residential cum

commercial building is constructed there, strictly following

the building rules and permit conditions. Respondents 2

and 3 stated that the petitioner has already approached the

Civil Court and obtained interim injunction and subsequently

the petitioner did withdraw the suit without reserving any WP(C)No.13460/2021

liberty to agitate the issue again before any Forum. In view

of the dismissal of the O.S., the petitioner is restrained from

agitating the same issue before this Court in this writ

petition.

6. Respondents 2 and 3 pointed out Ext.R2(j)

Commission Report in which it has been found that there is

no building rule violation. The Panchayat Building Rules

clearly specifies a mandatory set back of 1 meter or more

but below 1.50 meters. The Commission Report makes it

clear that the said condition has been complied with.

7. Respondents 2 and 3 stated that the Panchayat

issued Ext.P4 notice and a reply was given by them.

Respondents 2 and 3 agreed to remove any unauthorised

shade construction as and when the Panchayat requires the

respondents 2 and 3 to do so. As regards the door

constructed departing from the building permit, the

respondents 2 and 3 submitted that the slight violation in the WP(C)No.13460/2021

construction became highly necessary for them in order to

construct a door without which they cannot use the said

room at all. The respondents 2 and 3 have filed an

application for regularisation of unauthorised construction

wherever construction has departed from permit conditions.

In view of the above, the writ petition filed is not

maintainable and it is liable to be dismissed, contended the

learned counsel for the petitioner.

8. I have heard the learned counsel for the

petitioner and the learned counsel for respondents 2 and 3.

Inspite of service of notice, the 1 st respondent-Grama

Panchayat did not appear in the writ petition.

9. The allegation of the petitioner is that

respondents 2 and 3 have constructed a door on the

northern side of the building violating the sanctioned plan.

The said door opens directly towards the bathroom/toilet of

the petitioner violating the privacy of the petitioner seriously. WP(C)No.13460/2021

Since the said door is unauthorised and one constructed

departing from the building permit condition, the 1 st

respondent is compellable to force respondents 2 and 3 to

close the door on a permanent basis.

10. Similarly since the aerial distance is not

maintained when a shade is made on the northern side, the

Panchayat is bound to compel respondents 2 and 3 to undo

the said construction. The fact that aerial distance is not

maintained is evident. Though in the Commission Report

submitted in the civil suit, it has been stated that there is no

building rule violation and sufficient distance is shown. A

perusal of the Commission Report would show that the

Commissioner did not consider the violation of aerial

distance, perhaps because the petitioner did not insist to

take the measurement.

11. Ext.P4 letter would show that aerial distance is

not provided as required. Respondents 2 and 3 have also WP(C)No.13460/2021

submitted before the Panchayat authority that they are

willing to remove the excessive construction in this regard if

the Panchayat so directs. From the facts, it is evident that

there is a construction violating permit conditions.

12. As regards the door constructed by respondents

2 and 3 on the northern side, going by the pleadings and

arguments, the said door is constructed departing from

permit conditions and it infringes upon the privacy of the

petitioner. Respondents 2 and 3 fairly submitted that they

are proposing to make an application for regularisation of

the said construction and to revise the plan submitted. As

long as the Panchayat does not approve the revised plan

and regularise the construction, the illegal construction

resorted to by respondents 2 and 3 cannot stand.

13. Though the respondents 2 and 3 vehemently

argued that the dismissal of the original suit would disentitle

petition, taking into consideration the facts and

circumstances under which the petitioner was forced to

withdraw the suit and approach this Court, this Court is not

inclined to dismiss the writ petition on that ground alone.

Admittedly there is violation of permit conditions and

respondents 2 and 3 have stated that they are proposing to

file an application for regularisation.

In such circumstances, the writ petition is disposed of

directing the 1st respondent to enforce the notice dated

07.01.2021 stated to be issued by the Panchayat to

respondents 2 and 3. However, it is made clear that this will

be without prejudice to the right if any of the respondents 2

and 3 to get the unauthorised construction regularised, if

permissible under law.

Sd/-

APPENDIX OF WP(C) 13460/2021

PETITIONER'S EXHIBITS

Exhibit P1 A TRUE COPY OF THE APPLICATION DATED 23.11.2020.

Exhibit P2 A TRUE COPY OF THE REPLY ISSUED BY THE 1ST RESPONDENT NO A5-400451/1457/20 DATED 28.11.2020.

Exhibit P3 A TRUE COPY OF THE APPLICATION DATED 28.12.2020.

Exhibit P4 A TRUE COPY OF THE REPLY ISSUED BY THE 1ST RESPONDENT, NO. A2.1906/20, DATED 07.01.2021.

Exhibit P5 A TRUE COPY OF THE LEGAL NOTICE DATED 12.01.2021.

Exhibit P6 A TRUE COPY OF THE ISSUED REPLY NO. A5-

363/2021 DATED 02.02.2021 TOWARD THE LEGAL NOTICE.

Exhibit P7 A TRUE COPY OF THE COMPLAINT DATED 05/07/2021.

Exhibit P8 A TRUE COPY OF THE REPLY NO.A4-3866/21 TO THE COMPLAINT DATED 19/07/2021.

Exhibit P9 A TRUE COPY OF THE PERMIT NO.A2-

BA(26509)/2020, ISSUED BY THE 1ST RESPONDENT DATED 27/11/2020.

RESPONDENTS' EXHIBITS

Exhibit R2(a) TRUE COPY OF THE TAX RECEIPT DATED 19/06/2020 Exhibit R2(b) TRUE COPY OF THE SITE PLAN ALONG WITH THE BUILDING PERMIT ISSUED BY THE SECRETARY, BARANIKAVU GRAMA PANCHAYATH Exhibit R2(c) TRUE COPY OF THE PLAINT IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(d) TRUE COPY OF THE ORDER DATED 15/01/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(e) TRUE COPY OF THE OBJECTION DATED WP(C)No.13460/2021

15/07/2021 Exhibit R2(f) TRUE COPY OF THE I.A 2/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(g) TRUE COPY OF THE I.A 3/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMMKULAM Exhibit R2(h) TRUE COPY OF THE OBJECTION DATED 21/06/2021 IN I.A 2/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(i) TRUE COPY OF THE OBJECTION IN 2/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(j) TRUE COPY OF THE REPORT OF THE COMMISSIONER DATED 19/01/2021 Exhibit R2(k) TRUE COPY OF THE I.A 5/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(l) TRUE COPY OF THE OBJECTION IN I.A 5/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(m) TRUE COPY OF THE NOTICE DATED 07/01/2021 ISSUED BY THE SECRETARY OF THE PANCHAYATH Exhibit R2(n) TRUE COPY OF THE NOTICE DATED 16/07/2021 ISSUED BY THE SECRETARY OF THE PANCHAYATH Exhibit R2(o) TRUE COPY OF THE REPLY DATED 16/01/2021 Exhibit R2(p) TRUE COPY OF THE REPLY DATED 22/07/2021 Exhibit R2(q) TRUE COPY OF THE JUDGMENT DATED 02/08/2021 IN O.S. 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM