Nair Service Society Karayogam ... vs The Nedumudi Grama Panchayath
2021 Latest Caselaw 19976 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
                         WP(C) NO. 5554 OF 2014
PETITIONER/S:

          NAIR SERVICE SOCIETY KARAYOGAM NO.736,
          NADUBHAGOM MURI, CHAMPAKKULAM P.O., NEDUMUDI VILLAGE,
          ALAPPUZHA DISTRICT, REPRESENTED BY ITS PRESIDENT,
          K.GOPALAKRISHNA PANICKER, S/O.KRISHNA PANICKER.

          BY ADVS.
          SRI.S.SANAL KUMAR
          SMT.BHAVANA VELAYUDHAN
          SMT.T.J.SEEMA



RESPONDENT/S:

    1     THE NEDUMUDI GRAMA PANCHAYATH,
          REPRESENTED BY ITS SECRETARY, CHAMPAKKULAM P.O.,
          ALAPPUZHA-688505.

    2     JOY JOSEPH,
          KATTAMPALLY, CHAMPAKKULAM P.O., KUTTANAD, ALAPPUZHA-
          688505.

    3     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO LOCAL ADMINISTRATION
          DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-
          695001.




          R2- SRI.R.AZAD BABU

          R3 - SMT.SONY.K.B,GOVERNMENT PLEADER




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 5554 OF 2014
                                      -2-



                                 JUDGMENT

The writ petition is filed by the petitioner, Nair Service Society

Karayogam No.736, challenging Ext.P7 notice dated 10.01.2013, issued by the

Secretary of the Nedumudi Grama Panchayat, Alappuzha district. The

contents of the notice show that an unauthorised construction was carried out

by the petitioner and it was thereupon that the petitioner was directed to

remove the unauthorised construction specified in the notice, within 15 days,

failing which action would be taken under Section 235W(3) of the Kerala

Panchayat Raj Act, 1994. According to the petitioner, there is a threat

contained in the notice that, if the petitioner is not removing the unauthorised

construction, the Secretary of the Panchayat will take steps to demolish the

construction forcibly.

2. I have heard learned Counsel for the petitioner and perused the

pleadings and the documents on record.

3. In my considered opinion, Ext.P7 is a show cause notice cum a

provisional order issued by the Secretary of the Panchayat under Section

235W and that is the reason why it is clearly specified that if the petitioner is

not demolishing the unauthorised construction within 15 days, the Secretary

of the Panchayat will take necessary action in order to demolish the WP(C) NO. 5554 OF 2014

construction under Section 235W(3). To put it otherwise, Section 235W by

itself is a scheme to tackle any unauthorised construction. Section 235W

reads thus:-

"235 W. Demolition or alteration of building works unlawfully commenced, carrying on or completed. -

(1) Where the Secretary is satisfied that -

(i) the construction, or reconstruction or alteration of any building -

(a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the village panchayat; or

(b) is being carried on, or has been completed otherwise than in accordance with the plans specifications, or information on which such permission or decision was based; or

(c) is being carried on, or has been completed in contravention of any of the provisions of this Act or any rule or bye-law or order made or issued there under or any direction or requisition lawfully given or made under this Act, such rule, bye-law or order; or

(ii) any alteration required by notice issued under section 235 N, has not been duly made; or

(iii) any alteration of or addition to any building or any other work made or done for any purpose in or upon WP(C) NO. 5554 OF 2014

any building has been commenced or is being carried on or has been completed in contravention of the provisions of section 235-V, he may make a provisional order requiring the owner or the persons for whom the work is done, to demolish the work done, or any part of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alteration as may be necessary to bring the work in conformity with the provisions of this Act, bye-laws, rules, direction, order or requisition as aforesaid, or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work Provided that the Secretary may, on realisation of a compounding fee as may be fixed by government, regularise any construction, re-construction, or alteration of the building, commenced, carried on or completed, without getting a plan approved by the Secretary or in deviation of the plan approved by him, if such construction or alteration of the building does not contravene any of the criteria or specifications mentioned in the Act or the rules made there under.

(2) The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner or the persons for whom such work is done together with a notice requiring him to show cause with in a reasonable time, to be specified in such notice, why the order should not be confirmed.

(3) where the owner or the person for whom the work is done fails to show cause to the satisfaction of the Secretary, the Secretary may confirm the order or modify the order to such WP(C) NO. 5554 OF 2014

an extent as he may think fit to make and such order shall then be binding on the owner or the person for whom the work is done and on the failure to comply with the order, the Secretary may himself cause the building or part thereof, demolished, as the case may be, and expenses thereof shall be recoverable from the owner or such person.

(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), prosecution proceedings may be initiated against the owner or the person for whom the work is done.

(5) Where the Government is satisfied that the construction, re-construction or alteration of any building has been carried out in violation of any of the provisions of this Act or any rule made there under or any direction lawfully given by the Government or Secretary, the Government may direct the Secretary of the Village Panchayat to cause the demolition of such construction, re-construction or alteration and if such direction is not complied within the time limit specified in such direction, the Government may arrange its demolition and the cost there of shall be recovered from the Village Panchayat."

4. Having appreciated the situation, taking into account the provisions

of Section 235W, one thing is clear that the petitioner has got a clear remedy

as per the provisions of Seciton 235W itself to contest the proceedings by

filing suitable objection. The sole requirement of a show cause notice and a

provisional order is as to the nature of the unauthorised construction. On a

reading of Ext.P7, it is clear and evident that the Secretary has clearly WP(C) NO. 5554 OF 2014

specified the nature of unauthorised construction namely, petitioner has

violated the plan and put up six windows on the backside of the building; that

the sunshade of the building is protruding 60 centimeters; and that the stair

case is not constructed in accordance with law. Therefore, the necessary

requirements in the matter of issuing a show cause notice, and passing a

provisional order is complied with by the Secretary of the Grama Panchayat.

Petitioner ought to have filed due objections to the same and participated in

the proceedings as is provided under Section 235W, and once that is done, by

virtue of the provisions therein, no action can be taken without passing a final

order.

5. Yet another aspect that weigh with this Court at this point of time is

that, so far as any unauthorized construction is concerned, it is a factual

aspect that will have to identified by the Secretary of the Panchayat after

conducting due measurement and other enquiries. This Court is not expected

under Article 226 to enter into any finding with respect to any disputed

factual circumstances. When the statutory authority has clearly specified that

there is an unauthorised construction, and when the petitioner has raised a

dispute in respect to the same, it becomes a complex situation which can be

deciphered only by a fact finding authority. Presumably by virtue of the

interim order granted by this Court, no further action was taken by the

Secretary, in contemplation of law.

WP(C) NO. 5554 OF 2014

6. Therefore this writ petition is disposed of, leaving open the liberty of

the petitioner to file a suitable objection to Ext.P7, at the earliest and at any

rate, within two weeks from the date of receipt of a copy of this judgment, and

if any such objection is received by the Secretary of the Grama Panchayat, it

shall be disposed of by the Secretary, at the earliest and at any rate, within

one month from the date of receipt of the objection along with any documents

from the petitioner. I also make it clear that, if the petitioner is not filing any

objection as directed by this Court, the Secretary would be at liberty to

proceed in accordance with law as per the provisions under Section 235W of

the Act, 1994.

The writ petition is disposed of accordingly.

Sd/-

SHAJI P.CHALY JUDGE

uu 25.09.2021 WP(C) NO. 5554 OF 2014

APPENDIX OF WP(C) 5554/2014

PETITIONER EXHIBITS

P1: COPY OF THE PLAN SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

P2: COPY OF THE BUILDING PERMIT ISSUED BY THE 1ST RESPONDENT PANCHAYATH DATED 12.3.2010.

P3: COPY OF THE PLAINT IN O.S.NO.360 OF 2011 OF MUNSIFF'S COURT, ALAPPUZHA DATED 16.6.2011.

P4: COPY OF THE COMMISSION REPORTG FILED BY THE COMMISSIONER IN O.S.NO.360 OF 2011 OF MUNSIFF'S COURT, ALAPPUZHA DATED 29.6.2011.

P5: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE DEFENDANTS IN O.S.NO.360 OF 2011 OF MUNSIFF'S COURT, ALAPPUZHA DATED 15.2.2012.

P6: COPY OF THE ORDER OF THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DATED 18.10.2012.

P7: COPY OF THE ORDER OF THE 1ST RESPONDENT TOGETHER WITH THE REPORT OF THE ASSISTANT ENGINEER DATED 10.1.2013.