Ibrahim vs Angadippuram Grama Panchayath
2022 Latest Caselaw 8147 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. 5003 OF 2016

PETITIONER:

              IBRAHIM, AGED 55 YEARS,
              S/O. ABU HAJI, THONIKKARA HOUSE, THIRURKKAD P.O., VALAMBUR
              VILLAGE, PERINTHALMANNA, MALAPPURAM DISTRICT, REPRESENTED
              BY HIS POWER OF ATTORNEY HOLDER M.SREEKANTAN, S/O.
              MADHAVAN PILLAI, "HARISREE" HOUSE, KARIKIDAMAM,
              KADANAMANNA P.O., MANKADA, MALAPPURAM DISTRICT.

              BY ADVS.SRI.K.M.SATHYANATHA MENON
              SMT.KAVERY S THAMPI


RESPONDENTS:

     1        ANGADIPPURAM GRAMA PANCHAYATH, REPRESENTED BY ITS
              SECRETARY, ANGADIPPURAM, MALAPPURAM DISTRICT-679 321.

     2        THE SECRETARY, ANGADIPPURAM GRAMA PANCHAYAT,
              ANGADIPPURAM, MALAPPURAM DISTRICT-679 321.

              BY ADVS.SRI.M.P.PRABHAKARAN (PALAKKAD)
              SRI.C.E.UNNIKRISHNAN



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 5003 OF 2016                  :: 2 ::




                                    JUDGMENT

Dated this the 1st day of July 2022

This writ petition is filed by the petitioner seeking the following

reliefs:

i) Issue a writ of certiorari or any other appropriate writ, order or direction, calling for the original of Ext.P7 and quash the same;

ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to restore the building no.331-A/VII assigned to the assembly hall situated in property falling survey no:196/3 and also to issue license to run the Assembly hall in compliance with the Kerala Panchayat Raj Act, 1994;

iii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to accept the application to regularize the dining hall constructed by the petitioner subsequent to the construction of the assembly hall in a separate property falling in survey no.196/4 and to regularize the same in compliance with Rule 134 of Rules 2011.

2. The paramount contentions advanced by the petitioner are as

follows:

The petitioner purchased an extent of 94 cents of land falling in

Survey No.196/3 in Valumbur Village in the year 2010. The petitioner,

as a source of livelihood, decided to construct an Assembly Hall in the

said property. Accordingly he submitted an application for building

permit along with a plan before the 2nd respondent - Secretary,

Angadipuram Grama Panchayat. In turn the 2nd respondent forwarded

the same to the Fire & Rescue Department for obtaining a no objection WP(C) NO. 5003 OF 2016 :: 3 ::

certificate under Rule 57(8) of Kerala Panchayat Building Rules, 2011. It

is submitted that as there was inordinate delay in the consideration of

the permit, petitioner commenced the construction strictly in

compliance with Rules 2011. According to the petitioner, he will get

the benefit of deemed permission under Rule 16(2) of Rules 2011.

Thereafter, on completion of construction of Assembly Hall the

petitioner submitted application for regularization of Assembly Hall

under Rule 134 of Rules 2011 and the 2nd respondent granted building

number and ownership certificate. In the year 2014, petitioner

purchased another land falling in Survey No.196/4 in Valambur Village

having an extent of 52 cents just behind the Assembly Hall. It is the

contention of the petitioner that as the petitioner was getting enquiries

for marriage functions in the Assembly Hall, he constructed a dining

hall separately in the said property strictly in conformity with Rules

2011. While so, it was alleged that the vigilance wing conducted an

inspection with respect to the Assembly Hall and found that some

modifications were made by the petitioner to the Assembly Hall. Even

though the said minor modifications are not in violation to Rules 2011,

the 2nd respondent cancelled the building number without notice to the

petitioner. It was also alleged that during the time of inspection by the WP(C) NO. 5003 OF 2016 :: 4 ::

vigilance wing that the petitioner had constructed a dining hall without

building permit. According to the petitioner, the petitioner was under

the bonafide belief that the construction of the dining hall is only an

accessory structure to improve the use of the assembly hall and hence

no separate permission is required. It is submitted that the said

construction is also in strict compliance to Rules 2011. So the petitioner

approached the 2nd respondent for regularization, but the application

was not even accepted by the 2nd respondent. According to the

petitioner, Ext.P7 is a non speaking order without notice to the

petitioner and even if some modifications are made if it is not in

violation to Rules 2011, the 2nd respondent can regularize the same.

Instead the 2nd respondent cancelled the building number. It is

submitted that if the construction of the dining hall is not in violation

of Rules 2011, the 2nd respondent is bound to accept the application for

regularization of the construction carried out in property falling in

Survey No.196/4 and allow the same.

3. Panchayat and the Secretary have filed a counter affidavit

justifying the stand adopted by the Secretary in Ext.P7 notice. It is also

submitted that the building number issued to the assembly hall was

already cancelled on subsequent inspection by the LSGD Overseer and it WP(C) NO. 5003 OF 2016 :: 5 ::

was found that after receiving building number, petitioner has

unauthorizedly made modifications and carried out construction

without any permission and therefore, the Secretary and the Panchayat

was forced to cancel the building number. It is further submitted that

the petitioner with the intention to construct a wedding hall (assembly)

along with kitchen and dining hall, started construction works without

prior approval. As per Rule 57 of the Kerala Panchayat Building Rules,

2011 petitioner shall obtain approval from the District Town Planner if

the proposed construction exceeds 500 sq.m. and a lay out approval

will have to be secured from the Chief Town Planner if the area of the

proposed construction exceeds 1000 sq.m. Whatever that be, it is the

submission of the Panchayat and the Secretary that the Secretary is

always prepared to restore the building number and to issue permit for

the proposed construction, if the approval of the District Town Planner

or Chief Town Planner is obtained by the petitioner as per Rule 57 of the

Kerala Panchayat Building Rules, 2011.

4. The sum and substance of the contention of the petitioner is

that the second respondent has no power or authority to cancel the

building number already allotted and hence interference is required to

the Ext.P7 order of the Grama Panchayat.

 WP(C) NO. 5003 OF 2016                :: 6 ::




       5.    I    have   heard   learned        counsel   for   the   petitioner

Sri.K.M.Sathyanatha Menon and learned counsel appearing for the

respondents Sri.M.P.Prabhakaran and perused the pleading and

material on record.

6. The deliberation of facts made above would make it clear that

petitioner is aggrieved by Ext.P7 order passed by the Secretary. On an

analysis of Ext.P7, it is quite clear and evident that the allegation made

by the Secretary is that petitioner has made additional construction to

the existing building without securing prior permit and approval from

the respective statutory authorities as per the Kerala Panchayat

Building Rules, 2011. In my considered view, if any unauthorized or

illegal construction is carried out by any person, the Secretary is duty

bound to comply with the statutory requirements contained under the

Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat Building Rules,

2011. A reference to Section 235 W of Act 1994 would make the

situation clear, which 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 WP(C) NO. 5003 OF 2016 :: 7 ::

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 thereunder or any direction or requisition lawfully given or himade 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 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 person 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 person for whom such work is done together with a notice requiring him to show cause within a reasonable time, to be specified in such notice, why the order should not be confirmed.

WP(C) NO. 5003 OF 2016 :: 8 ::

(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 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 thereof shall be recovered from the Village Panchayat."

7. In order to implement the same, Rules are prescribed under

the Rules, 2000. Now co-relating the issues raised by the petitioner with

the law discussed above, it is quite clear and evident that the Secretary

of the Grama Panchayat has not followed any of the mandatory

requirements contemplated under law. Therefore, interference is

required to Ext.P7. Accordingly, I set aside Ext.P7; however leave open

the liberty of the Secretary of the Grama Panchayat to take necessary

and appropriate action in accordance with law. When this writ petition

was admitted to the files on 10.2.2016, an interim order was granted for WP(C) NO. 5003 OF 2016 :: 9 ::

a period of two months which was periodically extended and finally

extended until further orders on 28.7.2016. The said interim order

would continue to be in force till the proceedings as directed above are

completed by the Secretary of the Grama Panchayat in accordance with

law.

Writ petition is disposed of.

sd/-

                                                  SHAJI P. CHALY
                                                      JUDGE
jes
 WP(C) NO. 5003 OF 2016               :: 10 ::




                                   APPENDIX

 PETITIONER'S EXHIBITS:

 EXT.P1      TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VALAMBUR VILLAGE
             OFFICE DTD.3.11.2015.

 EXT.P2      TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED FROM THE FIRE

& RESCUE SERVICES, MALAPPURAM, DTD.30.12.2014.

EXT.P3 TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE PETITIONER DTD.1.1.2015.

EXT.P4 TRUE COPY OF THE RECEIPT DTD.1.1.2015 SHOWING THE REMITTANCE OF BUILDING REGULARISATION FEE AND PROPERTY TAX.

EXT.P5 TRUE COPY OF THE COMMUNICATION DTD.17.11.2015 ISSUED BY THE ELECTRICAL INSPECTOR, OFFICE OF THE ELECTRICAL INSPECTORATE, MALAPPURAM.

EXT.P6 TRUE COPY OF THE REPLY ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT DTD.27.1.2016.

EXT.P7 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DTD.13.1.2015.

EXT.P8 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DTD.15.1.2016 UNDER THE RIGHT TO INFORMATION ACT TO THE INFORMATION OFFICER OF THE 1ST RESPONDENT.

EXT.P9 TRUE COPY OF THE REPLY ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT DTD.27.1.2016.

// TRUE COPY //

P.S. TO JUDGE