Noble Thomas vs The Secretary
2021 Latest Caselaw 20082 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. 21103 OF 2010


PETITIONER/S:

          NOBLE THOMAS, S/O. THOMAS,
          KOTTARATHIL HOUSE, AMARAMBALAM SOUTH,, AMARAMBALAM
          SOUTH P.O., NILAMBUR TALUK,, MALAPPURAM DISTRICT.

          BY ADV SRI.K.MUHAMMED SALAHUDHEEN


RESPONDENT/S:

          THE SECRETARY,
          PANCHAYATH, P.O.POOKKOTTUMPADAM, NILAMBUR TALUK,,
          MALAPPURAM DISTRICT.

          BY ADV SRI.V.RAJENDRAN



     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. 21103 OF 2010
                                          -2-




                                 JUDGMENT

This writ petition is filed by the petitioner seeking the following reliefs:-

"(i) To issue a writ of mandamus or any other appropriate writ order or direction directing the respondent to number the building constructed in the 5 cents of land belonging to the petitioner comprised in Survey Nos.123/BC/210/7 part and Survey No.123/211/6 part of Amarambalam Village, Nilambur Taluk.

(ii) Issue such other writ order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case."

2. Petitioner is the absolute owner in possession of 5 cents of property

comprising in Sy.Nos.123/BC/210/7 part and Sy.No.123/210/6 part of

Amarambalam Village, Nilambur Taluk, Malappuram district. Case of the

petitioner is that the said property is dry land, though, as per the records, 3

cents have shown as wetland and 2 cents as dry land. The petitioner has put

up a construction in the property and approached the Panchayat for securing

a building permit. Panchayat rejected the application for the building permit

and it was thereupon that the writ petition was filed seeking direction to the

Panchayat to number the building.

3. The Secretary of the Grama Panchayat has filed a counter affidavit WP(C) NO. 21103 OF 2010

stating that the building was constructed without obtaining a building permit

and therefore, the building cannot be numbered. So also it is contended that,

petitioner has a statutory remedy if the Panchayat has not granted the

building number to the petitioner.

4. I have heard, learned Counsel for the petitioner, and perused the

pleadings and the documents on record.

5. In the writ petition, petitioner has no case that he has carried out the

construction of the building after securing the building permit from the

Secretary of the Amarambalam Grama Panchayat, Malappuram district. In

fact, the Kerala Panchayat Building Rules came into force only in the year

2011. However, by virtue of the powers conferred on the State Government

under Section 274(1) of the Kerala Panchayat Raj Act, 1994, the Kerala

Municipality Building Rules 1999, was extended to panchayat areas as per

G.O.(MS) No.150/2007/LSGD dated 06.06.2007. Therefore, if the

construction was carried out by the petitioner any day after the order was

issued by the Government extending the Kerala Municipality Building Rules

to the panchayat areas, necessarily the petitioner had to take the requisite

permit from the Grama Panchayat and the construction should have been

carried out after securing the approved plan. From the tenure of the counter

affidavit filed by the Secretary of the Grama Panchayat, it is quite clear and WP(C) NO. 21103 OF 2010

evident that since the petitioner has carried out the construction without

securing a permit and approved plan from the Secretary of the Grama

Panchayat, the Panchayat is not bound to number the building, unless and

until the construction is regularised in accordance with law .

6. Anyhow, going by the provisions of the Panchayat Raj Act, 1994, read

with Kerala Municipality Building Rules, 1999, as the law applicable then, the

Secretary was vested with ample powers under Rule 143 of the Rules, to

regularize any construction if the construction is carried out in accordance

with the Rules. Even otherwise, by virtue of Section 235AB of the Kerala

Panchayat Raj Act, any unauthorised construction can be regularized by the

Government in accordance with law. I am also informed that, by virtue of the

orders issued by the government and prevailing now, any unauthorised

construction can be regularized in accordance with law, and the prescriptions

contained under the government order. In that view of the matter, there is no

point in retaining this writ petition here in this court, since 11 years have

elapsed and the petitioner has to take adequate steps in setting right the

illegalities.

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

the petitioner to approach the Secretary of the Grama Panchayat with suitable

application to regularize the construction already carried out by the WP(C) NO. 21103 OF 2010

petitioner, within one month from the date of receipt of a copy of this

judgment, and if any such application is received, the Secretary shall be at

liberty to consider the same, in accordance with law and attain finality within

two months thereafter. However I make it clear that, if the building number is

granted to the petitioner during the pendency of this writ petition in any

appropriately constituted proceedings, it shall not be reopened or disturbed

under any circumstances.

The writ petition is disposed of accordingly.

Sd/-

SHAJI P.CHALY JUDGE

uu 25.09.2021.

WP(C) NO. 21103 OF 2010

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1                TRUE COPY OF THE DOCUMENT BEARING
                          NO.5386/07 DATED 6.12.07 OF S.R.O, WARDOOR

EXHIBIT P2                TRUE COPY OF THE NOTICE DATED 12.3.2010
                          ISSUED TO THE PETITIONER BY THE RESPONDENT

EXHIBIT P3                TRUE COPY OF THE NOTICE DATED 5.4.2010
                          ISSUED BY THE RESPONDENT TO THE PETITIONER

EXHIBIT P4                TRUE COPY OF THE REPLY TO EXT.P3 DATED
                          19.4.2010

EXHIBIT P5                TRUE COPY OF THE NOTICE ISSUED BY THE
                          RESPONDENT DATED 29.5.2010

EXHIBIT P6                TRUE COPY OF APPLICATION SUBMITTED BY THE
                          PETITIONER BEFORE THE VILLAGE OFFICER,
                          AMARAMBALAM VILLAGE



RESPONDENT'S EXHIBITS:-

EXHIBIT R1(a)             TRUE COPY OF THE LETTER DATED 24.02.2010
                          THE PETITIONER TO THE RESPONDENT