Joseph Sartho vs Kadamakkudy Grama Panchayath
2022 Latest Caselaw 6995 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

          FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944

                         WP(C) NO. 20863 OF 2016

PETITIONER/S:

           JOSEPH SARTHO
           AGED 60 YEARS, SON OF ALEXANDER, VARIATH HOUSE,
           KANIAMPARAMBIL, CHERANELLORE, COCHIN 682 034.
           BY ADVS.
           SRI.P.B.SAHASRANAMAN
           SRI.T.S.HARIKUMAR


RESPONDENT/S:

     1     KADAMAKKUDY GRAMA PANCHAYATH
           REPRESENTED BY ITS SECRETARY, PIZHALA 682 027, ERNAKULAM
           DISTRICT.
     2     ADDL.R2 IMPLEADED:

           KERALA COASTAL ZONE MANAGEMENT AUTHORITY
           REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM.

           (ADDL.R2 IMPLEADED AS PER ORDER DATED 01.08.2016 IN I.A. NO.
           12092/2016)
           BY ADVS.
           R1 BY SRI.K.M.VARGHESE
           SRI.K.R.SUNIL, KERALA COASTAL ZONE MANAGEMENT AUTHORITY



      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.06.2022,

     THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
  W.P.(C) No. 20863/2016               :2:




                             SHAJI P. CHALY, J.
           ---------------------------------------------------------
                     W.P.(C). No. 20863 of 2016 (G)
             ---------------------------------------------------------
                  Dated this the 17th day of June, 2022.

                                 JUDGMENT

The petitioner has filed this writ petition seeking the following

reliefs:

1. To issue a writ of certiorari calling for the records leading to Ext. P3 and quash the same.

2. To issue a writ, direction or order in the nature of mandamus

commanding the respondent to number the building constructed by the petitioner forthwith.

2. According to the petitioner, he purchased a small plot having

an extent of 2.767 cents along with Ext. P1 building permit and

constructed a residential cum shop building for own occupation.

When a request was made to transfer the building permit and to

number the building, according to the petitioner, it is stated by the

Secretary that the heading of the plan submitted does not state as to

whether it is a 'residential cum commercial' and therefore, he was

directed to resubmit the plan as per Ext. P3 dated 29.01.2016.

3. According to the petitioner, since the building permit was

issued specifically noting 'residential/commercial and so long as there

is no deviation, the Secretary of the Grama Panchayat cannot insist

for a new building plan taking note of the deviation. It is under such

circumstances that the petitioner has filed this writ petition seeking to

quash Ext. P3 notice.

4. A detailed counter affidavit is filed by the respondent Grama

Panchayat stating as follows:

2. It is submitted that Exhibit-P1 permit was issued to one George Shibu, Kaduvelipparambil, Kothad for the construction subject to CRZ Rules. The petitioner claiming to be the transferee of the properties mentioned in Exhibit-P1 submitted Exhibit-P2 inter alia stating that construction of the building is completed but had not furnish the necessary certificate in the plan. Steps were initiated on Ext. P2 application and sought inspection report from the Overseer. The Overseer after site inspection had reported that the building constructed is situated in the CRZ area and the construction include area for commercial purpose. It is noted that the completion plan is captioned as Residential Plan.

3 It is submitted that in order to number the building constructed in the CRZ area clearance from Kerala Coastal Zone Management Authority (KCZMA) is required for which

the panchayat has to sent relevant documents to the said Authority. Different parameters are set for Residential and Commercial Occupancy and to the building which contain more than one usage. Since space for commercial purpose was also included in the residential construction, as per Exhibit P3 the petitioner was informed to rectify the defect by submitting a proper plan to further proceed with Exhibit-P2 and so as to sent the same to the CRZ Authority aforementioned. But without complying such necessary formalities and not co-operating with the respondent, the petitioner had rushed to this Hon'ble Court by adopting dubious contentions to cover up the illegal acts. A proper completion plan certified by the licensee in terms of Rule 342(iii) of Kerala Panchayat Building Rule, 2011 and necessary clearance from Coastal Zone Management Authority is required to conclude the proceedings in Exhibit-P2 application. This respondent is bound by the provisions and various circulars issued by the State Government and Authority under CRZ Rules which contemplate strict action against the constructions in the CRZ area and officers concerned."

5. I have heard the learned counsel for the petitioner, Sri. P. B.

Sahasranaman, learned counsel for the respondent Grama Panchayat

Sri. K. M. Varghese, and perused the pleadings and materials on

record.

6. Admittedly, after the construction of the building, as per Ext.

P1 building permit, the petitioner has submitted completion

certificate and sought to issue occupancy certificate, which is pending

consideration before the first respondent. Thereafter, the petitioner

was served with Ext. P3 letter dated 29.01.2016 requiring him to

submit a new plan.

7. It is for the petitioner to decide as to whether the documents

sought for by the Secretary of the Grama Panchayat should be

produced in order to finalise the proceedings for issuing an occupancy

certificate.

8. In that view of the matter and since the pleadings raised are

surrounded by various factual circumstances, I do not think, at this

stage of the proceedings, I will be able to adjudicate the disputes by

and between the parties. I think, it is only appropriate that the writ

petition is disposed of with suitable directions:

9. Accordingly, this writ petition is disposed of directing the

Secretary of the Kadamakkudy Grama Panchayat to consider and pass

orders on the application submitted by the petitioner for occupancy

certificate and numbering the building, after providing an opportunity

of hearing to the petitioner.

The petitioner is granted liberty to produce the documents as

are requested by the Secretary of the Grama Panchayat in Ext. P3

notice within two weeks from the date of receipt of a copy of this

judgment. Thereafter, the Secretary of the Kadamakkudy Grama

Panchayat shall finalise the proceedings at the earliest and at any rate

within one month from the date of production of the documents, if any,

as directed above.

sd/­ SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 20863/2016

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE BUILDING PERMIT ISSUED BY THE RESPONDENT TO GEORGE SHIBU, DATED 24-03-2014.

EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE APPLICATION MADE BY THE PETITIONER TO THE RESPONDENT, DATED 21-12-

EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE LETTER SENT BY THE RESPONDENT TO THE PETITIONER, DATED 29-01-2016.

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS To Judge.

rv