Vavachan Joseph vs The Secretary To Government
2021 Latest Caselaw 19790 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
                    WP(C) NO. 24475 OF 2020
PETITIONER:

         VAVACHAN JOSEPH,
         AGED 42 YEARS,
         KALAMPATTEL HOUSE,
         KANIYARCODE P.O., THIRUVILWAMALA,
         THRISSUR DISTRICT-680 594

         BY ADV P.C.SASIDHARAN


RESPONDENTS:

    1    THE SECRETARY TO GOVERNMENT,
         LOCAL SELF GOVERNMENT, SECRETARIAT,
         THIRUVANANTHAPURAM-695 001

    2    THE THIRUVILWAMALA GRAMA PANCHAYAT,
         REPRESENTED BY ITS SECRETARY,
         THIRUVILWAMALA, THRISSUR DISTRICT-680 594

    3    THE TOWN PLANNING OFFICER,
         TOWN PLANNING OFFICE, THRISSUR-680 001

    4    THE CHIEF TOWN PLANNER,
         SWARAJ BHAVAN, 3RD FLOOR, NANTHANCODE,
         THIRUVANANTHAPURAM-695 003

    5    THE ASSISTANT ENGINEER,
         LSGD, THIRUVILWAMALA GRAMA PANCHAYAT,
         THIRUVILWAMALA,
         THRISSUR DISTRICT-680 594

          BY ADVS.
          R2 BY SRI.BRIJESH MOHAN
          R2 BY SRI.R.RAJPRADEEP
          SRI.SYAMANTHAK B.S, GOVERNMENT PLEADER
     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 23.09.2021, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 WP(C) No.24475/2020
                               :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 23rd day of September, 2021

Petitioner seeks to quash Exts.P6, P8 and P9 and

to direct the 2nd respondent to number the building constructed

by him.

2. The petitioner obtained a Building Permit for

construction of a commercial-cum-residential building in

Kaniyarkode Village of Thalappilly Taluk in Thrissur District.

The petitioner completed the construction and submitted

Completion Plan also. The Secretary to the Panchayat issued

Ext.P8 letter to the petitioner stating that the construction

carried out by the petitioner violates Rules 28(1), 35, 38(2)

and 58(2) of the Kerala Panchayat Building Rules.

3. In Ext.P8, it was alleged that requisite parking

space is not provided and an additional construction has been

made on the North-West side of the plot, which is not included WP(C) No.24475/2020

in the Building Plan. The petitioner submitted Ext.P10

representation to the Chief Town Planner and Ext.P11

representation to the Chief Engineer. In Exts.P10 and P11,

the petitioner urged that there is no violation of the conditions

of Building Permit. The construction has been completed

strictly in accordance with the Building Permit issued to the

petitioner.

4. In spite of the submission of Exts.P10 and P11 , the

petitioner has not been issued with Occupancy Certificate so

far. It is in such circumstances that the petitioner has

approached this Court seeking to direct the respondents to

number the building and issue Occupancy Certificate.

5. The 2nd respondent-Panchayat filed a counter

affidavit. In the counter affidavit, the 2 nd respondent pointed

out that there are major deviations from the Building Permit

issued to the petitioner. The floor area permitted was 746.54

M2 whereas the actual measurement after completion of the

construction disclosed that the petitioner has constructed floor

up to 908.99 M2. Similarly, the petitioner has constructed a WP(C) No.24475/2020

new toilet block in violation of Rule 27(5) of the KPBR. The

coverage is also in excess, offending Rule 35. The height of

the building was 9.45 metres whereas actual measurement

showed as 10.93 metres. This has in effect violated Rule

36(1). The petitioner also violated Rule 56(7), contended the

learned Standing Counsel for the 2nd respondent.

6. The learned counsel for the petitioner would submit

that though there are certain excess in the matter of

construction, still those excess will fall within the permissible

limits of KPBR. The learned counsel for the petitioner also

disputed the contention of the 2 nd respondent that the actual

height of the building is 10.93 metres. The petitioner urged

that the said measurement requires a rechecking. According

to the petitioner, the height of the building after construction is

much lower than 10 metres. At any rate, these violations can

be condoned and regularised by the respondents, contended

the learned counsel for the petitioner.

7. In view of the facts disclosed from the pleadings

and arguments, this Court is of the opinion that since the WP(C) No.24475/2020

petitioner has a remedy to get violations of permit conditions

redressed, by seeking regularisation of construction, the writ

petition can be disposed of permitting the petitioner to

approach the Government.

Accordingly, the writ petition is disposed of

permitting the petitioner to file an application for regularisation

of construction. If the petitioner submits such an application,

the application shall be processed taking into consideration

the fact that the building permit is governed by KPBR, 2011. If

the petitioner raises dispute regarding the height of the

building as found by the Panchayat in Ext.R2(a), the

competent among the respondents shall cause an inspection

and measurement of the height of the building afresh with

notice to the petitioner.

Sd/-

N. NAGARESH, JUDGE

aks/23.09.2021 WP(C) No.24475/2020

APPENDIX OF WP(C) 24475/2020

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC NO.30241/2016 EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT DATED 19.7.2017 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF THE APPROVED BUILDING PLAN EXHIBIT P4 THE PHOTOGRAPH EVIDENCING THE COMPLETION OF THE CONSTRUCTION OF THE BUILDING EXHIBIT P5 TRUE COPY OF THE COMPLETION PLAN EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 8.2.2018 ISSUED BY THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE INTIMATION GIVEN BY THE PANCHAYAT UNDER THE RIGHT OT INFORMATION ACT EXHIBIT P8 TRUE COPY OF THE LETTER ISSUED BY THE SECRETARY DATED 24.10.2018 EXHIBIT P9 TRUE COPY OF THE LETTER DATED 23.11.2018 ISSUED BY THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 10.3.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED 10.3.2020 SUBMITTED BEFORE THE CHIEF ENGINEER, LSGD ENGINEERING WING, THIRUVANANTHAPURAM.

EXHIBIT P12           TRUE     COPY     OF      THE     G.O.(P)
                      NO.13/2021/LSGD DATED 05/02/2021.

RESPONDENTS' EXHIBITS:

EXHIBIT-R2(A)         A COMPARATIVE STATEMENT SHOWING THE
                      MAJOR   DEVIATIONS   FROM   THE KERALA
                      PANCHAYAT BUILDING RULES 2011 IN THE
                      BUILDING OF THE PETITIONER.


SR