Gopi Chkkunnath vs Chelakkara Grama Panchayath
2022 Latest Caselaw 8121 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
   FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                  WP(C) NO. 8262 OF 2016
PETITIONER:

         GOPI CHAKKUNNATH
         AGED 52 YEARS
         S/O.NARAYANIYAMMA,
         GOPIKA'S,
         VENGANELLOOR,
         CHELAKKARA,
         THRISSUR DISTRICT,
         PIN - 680 586.


RESPONDENTS:

    1    CHELAKKARA GRAMA PANCHAYATH
         REPRESENTED BY ITS SECRETARY,
         CHELAKKARA,
         THRISSUR,
         PIN - 680 586.

    2    SECRETARY
         CHELAKKARA GRAMA PANCHAYATH,
         CHELAKKARA,
         THRISSUR,
         PIN - 680 586

    3    TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS -
         KERALA
         TRIDA BUILDING,
         MEDICAL COLLEGE P.O.,
         THIRUVANANTHAPURAM - 695 037.

         R1 & R2 BY SRI.S. SHANAVAS KHAN
         R3 BY SRI. K.P. HARISH, SENIOR GOVERNMENT PLEADER
     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C.) No. 8262/2016
                                    2




                               JUDGMENT

This writ petition is filed by the petitioner seeking

the following reliefs:-

"i) Call for records leading to Exhibit P2 and Exhibit P6 and issue a writ in the nature of certiorari quashing Ext.P2 and Ext.P6, to the extent that the demolition of the building covered thereunder is directed;

ii) Issue a writ in the nature of mandamus commanding the 1st respondent to number the petitioner's building covered by Ext.P2 and P6 within such time as may be fixed by this Hon'ble Court.

iii) issue such other orders, writs or directions as are deemed fit by this Hon'ble Court.

iv) award cost of this proceedings to the petitioner."

2. Apparently, alleging that the petitioner has

carried out illegal construction of the building

especially the violation of Section 220(b) of the

Kerala Panchayat Raj Act, 1994, for short the 'Act,

1994' action was initiated evident from Ext.P2

notice dated 20.11.2013. Being aggrieved by the

same, the petitioner has preferred an appeal before

the Panchayat Council and thereafter, approached W.P.(C.) No. 8262/2016

the Tribunal for Local Self Government Institutions

by filing appeal evident from Ext.P4. The Tribunal

after considering the appeal has dismissed the

same, however, permitted the petitioner to submit

an application for regularisation after removal of

the objectionable construction of the building. It is

thus aggrieved by the order passed by the

Secretary as well as the Tribunal, this writ petition is

filed.

3. I have heard the learned counsel for the

petitioners, Smt. P.R. Reena, the learned counsel for

the Grama Panchayat, Smt. Indu and perused the

pleadings and materials on record.

4. Even though various contentions are

raised in the writ petition with respect to the

illegality of Ext.P2 notice, I am of the considered

opinion that the notice is surrounded by various

factual circumstances. However, the learned W.P.(C.) No. 8262/2016

counsel for the petitioner submitted that the

petitioner is mostly aggrieved by the direction

given by the Tribunal for Local Self Government

Institutions to submit the application for

regularisation with a rider to remove the

objectionable portion of the building. The learned

counsel for the Panchayat submitted that if the

petitioner is submitting any application for

regularization, it will be considered by the Secretary

of the Grama Panchayat in accordance with law.

5. Having evaluated the rival submissions,

this writ petition is disposed of vacating the

direction issued by the Tribunal for Local Self

Government Institutions, directing the petitioner to

remove the objectionable portion of the building

and granting liberty to the petitioner to file suitable

application for regularisation of the building

constructed either before the Secretary, if the W.P.(C.) No. 8262/2016

construction is in accordance with the Kerala

Panchayat Building Rules, 2011, for short the

'Rules, 2011' or before the appropriate statutory

authority in contemplation of Section 235AB of the

Act, 1994.

6. When this writ petition was admitted to the

files of this Court, status quo was directed to be

maintained and it was extended twice and finally,

extended for one month on 29.06.2016. Anyhow a

person who has constructed a building even

without a permit is entitled to seek for

regularisation in accordance with the provision of

the Rules, 2011 and if it is in accordance with the

Rules, the Secretary is vested with powers to

regularise the same. However, if any construction is

carried out in violation of the Rules, 2011 and the

provision of the Act, 1994, the Secretary is not

vested with powers. But by virtue of the periodical W.P.(C.) No. 8262/2016

orders issued by the State Government as per

Section 235AB of the Act, 1994, any person who

has carried out the construction in violation of the

Rules, 2011 is entitled to file an application.

7. In that view of the matter, it is for the

petitioner to decide as to whether to approach the

Secretary for regularisation or the statutory

authority in accordance with Section 235AB of the

Act, 1994.

The writ petition is disposed of as above.

Sd/-

SHAJI P. CHALY JUDGE

DCS/01.07.2022 W.P.(C.) No. 8262/2016

APPENDIX

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE BUILDING IN QUESTION ALONG WITH THE ADJOINING ROADS

Exhibit P2 TRUE COPY OF THE NOTICE ISSUED BY THE RESPONDENT DATED 20.11.2013

Exhibit P3 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE PANCHAYATH COMMITTEE DATED 20.12.2013

Exhibit P4 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE LSGT UNDER RULE 151 OF THE KPBR, 2011 DATED 3.12.2013 WITHOUT ANNEXURES

Exhibit P5 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT DATED 9.3.2014

Exhibit P6 TRUE COPY OF THE COMMON ORDER PASSED BY THE LSGT DATED 27.1.2016

Exhibit P7 A PHOTOGRAPH SHOWING THE BUILDING SITUATED OPPOSITE TO THE BUILDING OF THE PETITIONER, ABUTTING THE PANCHAYATH ROAD.