Sulabhadevi vs Chittariparamba Grama ...
2022 Latest Caselaw 11458 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                     &
              THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
 FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944
                           WA NO. 1823 OF 2022
  AGAINST THE ORDER/JUDGMENTWP(C) 23552/2012 OF HIGH COURT OF
                                  KERALA
APPELLANT/S:

              SULABHADEVI
              AGED 51 YEARS
              D/O.CHANDRASEKHARAN
              NISTHULAM, THODEEKKALAM
              KANNAVAM VILLAGE, KANNUR DISTRICT, PIN - 670650
              BY ADVS.
              M.SASINDRAN
              MURALI PALLATH

RESPONDENT/S:

     1        CHITTARIPARAMBA GRAMA PANCHAYATH
              REPRESENTED BY ITS SECRETARY
              CHITTARIPARAMBA PO, KANNUR DISTRICT, PIN - 670650
     2        THE SECRETARY, CHITTARIPARAMBA GRAMA PANCHAYATH
              CHITTARIPARAMBA P.O.KANNUR DISTRICT., PIN - 670650
     3        SREE THODIKALAM SHIVA TEMPLEKANNOTH P.O., KANNUR
              DISTRICT REPRESENTED BY ITS MANAGER
              A.V.ASOKAN, EDATHIL HOUSE
              ALAKOD P.O., KANNUR DISTRICT, PIN - 670650
              BY ADV P.K.BALAKRISHNAN



         THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2022, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                               2




    K.VINOD CHANDRAN & C.JAYACHANDRAN,JJ.
           -------------------------------------------
               Writ Appeal No.1823/2022
          ---------------------------------------------
         Dated this the 09th December, 2022

                        JUDGMENT

K.Vinod Chandran, J.

The learned Single Judge by the impugned judgment

refused to interfere with Exts.P4 and P5 communications

addressed to the appellant by the 2 nd respondent, Secretary

of the Grama Panchayath and declined a direction to

number the building, which was the subject matter of the

above communications. The appellant claimed that she

purchased the property in the year 2008 as per Ext.P10,

when there was existing a building thereon, of two shop

rooms. It is contended that the building was constructed by

the vendors in Ext.P10, in the year 2003-2004, when the

Kerala Panchayat Building Rules, 2011 (hereinafter referred

to as "the Rules" for short) had not been brought into force.

Hence there was no requirement to seek for a permission

especially when the road passing in front of the property

was not notified.

2. An application for building permission was made

by the predecessors-in-interest as evidenced from Ext.P2

and later by the appellant herself after she purchased the

property as seen from Ext.P3. The Panchayath by Ext.P4

sought production of a No Objection Certificate from the

Archaeological Survey Department and by Ext.P5, rejected

the request to number the building, on the ground of the

same being in contravention of the Building Rules.

3. Before us also the learned counsel for the

appellant asserted that at the point when the building was

constructed there was no requirement for a permission from

the local body. The learned Single Judge noticed Section

220(b) of the Kerala Panchayat Raj Act, 1994, to find that

even de hors the Rules, a permission ought to have been

obtained by the owner of the property before a construction

was commenced. It was held that Exts.P4 and P5 can only

be deemed to be notices issued, which have to be answered

by the appellant. It was pointed out that the Secretary,

being the first fact finding authority, has to adjudicate on

the question of the requirement, both of a No Objection

Certificate from the Archaeological Survey Department and

the permission under the Panchayat Raj Act or the Building

Rules. It was also observed that, if at all the Secretary finds

against the appellant then necessarily the proceedings

under Section 235 W would have to be initiated by the

Panchayat for demolition or alteration of the building which

was constructed unlawfully. The learned single Judge also

noticed that, by an interim order in the writ petition

provisional numbering was directed, which in any event the

Panchayath is empowered to do, under Section 235 AA of

the Panchayat Raj Act. The writ petition was disposed of

directing the 2nd respondent to dispose of the matter in

accordance with law after participating the appellant in the

proceedings, if objections are filed by the appellant to

Exts.P4 and P5 within a period of one month; till which date

the interim order was also directed to be continued.

4. The learned counsel appearing for the appellant

would insist that there is no requirement for a further

consideration, especially since the Rules are not applicable.

The building is one constructed in the year 2003-2004, the

road running along side it had not been notified and hence

there is no requirement for a permission under Section

220(b). The learned counsel for the respondent-

panchayath, pointed out that Ext.P2 evidenced fees

remitted for issuance of a building permit, which is

submitted only in the year 2008 by the vendors of the

appellant, while the specific contention taken is of the

building having been constructed in the year 2003-2004. It

is also pointed from Ext.P6 that already there was an

application filed for numbering of the building by the

vendors in the year 2003-2004, which was not allowed for

reason of the set-back from the panchayath road having not

been complied with.

5. Obviously, there was no rejection of the

application made, as spoken of in Ext.P6, which also is

stated to be after construction of the building in the year

2003-2004. The appellant after purchase of the property

had applied for numbering which was responded to by

Exts.P4 and P5. Though Ext.P5 is a rejection of the request

for numbering, the learned Single Judge deemed it to be a

notice. We are of the opinion that the directions in the

impugned judgment, to treat Exts.P4 and P5 as notices and

the right given to the appellant to respond to such notices

would suffice. We find no valid ground to interfere with the

impugned judgment. The appellant shall either produce the

no objection of the Archaeological Survey Department or

file objection to Exts.P4 as also P5 and if no NOC is received

establish before the authority that there is no requirement

of a NOC or even a permit. On objection being filed, the

Secretary shall issue a notice for hearing and shall dispose

of the matter within a period of one month from the date of

hearing. We make it clear that, neither the learned Single

Judge nor this Bench, have gone into the merits of the rival

contentions. The Secretary would be entitled to consider

the issue in accordance with law and pass a reasoned order,

which shall be communicated to the appellant. The writ

appeal stands dismissed with the above observations;

leaving the parties to suffer their respective costs.

Sd/-

K.VINOD CHANDRAN, JUDGE

Sd/-

C.JAYACHANDRAN, JUDGE

Raj