Kerala High Court
Veerankutty P vs The Keezhuparamba Grama ... on 10 May, 2022
W.P.(C)No.2230 of 2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944
WP(C) NO. 2230 OF 2021
PETITIONER:
VEERANKUTTY P.
AGED 55 YEARS, S/O. MUHAMMED,
PULLANCHERI HOUSE, THRIKKALAYUR,
VALILLAPUZHA, KEEZHUPARAMBA P.O.,
AREEKODE, MALAPPURAM - 673 639.
BY ADVS.
SRI ABDUL JAWAD K.
SRI.ABDUL MAJEED.N
SMT.A.GRANCY JOSE
RESPONDENTS:
1 THE KEEZHUPARAMBA GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY,
KEEZHUPARAMBA P.O., MALAPPURAM - 673639.
2 THE SECRETARY,
OFFICE OF THE KEEZHUPARAMBA GRAMA PANCHAYAT,
KEEZHUPARAMBA P.O., MALAPPURAM - 673639.
BY ADV SRI.K.DILIP (SC)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14.02.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
W.P.(C)No.2230 of 2021
2
T.R. RAVI, J.
--------------------------------------------
W.P.(C)No.2230 of 2021
--------------------------------------------
Dated this the 10th day of May, 2022
JUDGMENT
The petitioner owns 2 cents of land in Re-Sy.No.43/2-13 of
Keezhuparamba Village of Malappuram District. He had purchased
the land as per Sale Deed No.3825/2019 dated 27.11.2019. It is
stated that the predecessor of the petitioner had obtained a
building permit in the year 2018 in accordance with the Kerala
Panchayat Building Rules, 2011 (2011 Rules for short) and that the
petitioner's land comes within the category of small plot under the
2011 Rules, the constructions in such plots being governed by
Rules 62 to 65 of Chapter VIII of the 2011 Rules. Ext.P2 is the
building permit issued to the predecessor on 14.9.2018. According
to the petitioner, after purchasing the land along with the building
permit, he continued the construction of the building as per the
permit. It is stated that at the instance of local leaders of the
ruling party, complaints have been preferred against the
construction being carried out by the petitioner, alleging violation
of Building Rules without any specific violation being pointed out.
The petitioner has produced documents to show that there is no
violation of the Building Rules as alleged. It is further submitted
W.P.(C)No.2230 of 2021
that the petitioner has submitted a revised plan making slight
variations as suggested by the 2nd respondent and pointed out that
there is no difference in the set-back provided in the original plan
as well as the new plan, which has been produced as Ext.P9. The
petitioner has been issued with Ext.P10 communication by the 2 nd
respondent wherein it is stated that the plan which has been re-
submitted does not provide the required set-back under Rule 23(2)
and that since there is a PWD road on the front side, the NOC from
the PWD is to be submitted. The petitioner has approached this
Court seeking to quash Exts.P3, P5, and P10, for a declaration that
Rule 23(2) of the Kerala Panchayat Building Rules, 2019 does not
apply to the construction made by the petitioner, for a declaration
that the construction covered by Ext.P2 is governed by Chapter
VIII of 2011 Rules and for a direction to the respondents to permit
the petitioner to continue the construction in the light of Ext.P2
permit and Ext.P9 plan and to complete the same.
2. A counter affidavit has been filed on behalf of
respondents 1 and 2. It is stated that Ext.P10 has been issued in
the light of a complaint dated 25.6.2020 filed by one K.V.Muneer,
who is a resident of the area, and the Local Secretary of the
CPI(M), in which it is alleged that the construction is against Rules
and is effected without demarcating the public land. Ext.R2(k)
communication received from the Town Planner, Malappuram has
W.P.(C)No.2230 of 2021
been produced which shows that there are violations of certain
provisions of the 2011 Rules. The specific stand taken in the
counter affidavit is that the construction can be permitted only if
the petitioner complies with the requirements stated in Ext.R2(k).
3. The petitioner has submitted a reply affidavit wherein
he has pointed out that Ext.R2(k) is regarding two buildings, that
he is concerned only with the building that is being constructed by
him, and that the requirement pointed out regarding the second
building has nothing to do with the petitioner's building. A reading
of Ext.R2(k) would show that as far as the petitioner's building is
concerned, the only violations pointed out are regarding Rule
28(1) and Rule 27(10) of the 2011 Rules. It is stated in the reply
affidavit that the violation pointed out regarding Rule 27(1) does
not exist presently and that the allegation regarding violation
regarding Rule 28(1) also cannot be sustained in the light of
Exts.P7, P8, and P8(a) issued by the Village Officer. It is further
contended that since the petitioner's land is a small plot covered
by Chapter VIII of the Kerala Panchayat Building Rules, 2011,
there cannot be any objection since the petitioner has complied
with all the provisions contained in Chapter VIII of the Kerala
Panchayat Building Rules, 2011.
4. Heard Sri.Abdul Jawad K., on behalf of the petitioner
and Sri.K.Dileep, Standing Counsel for respondents 1 and 2.
W.P.(C)No.2230 of 2021
5. Admittedly, the land in which the petitioner has been
permitted to construct the building as per Ext.P2 is of an extent of
2 cents. The building permit was granted prior to the coming into
force of the Kerala Panchayat Building Rules, 2019. The relevant
Rules which are applicable will hence be the 2011 Rules. There
does not appear to be a dispute regarding the Rule which is
applicable since the violation pointed out in Ext.R2(k) by the Town
Planner is also regarding the violation of Proviso 2 of Rule 27(10)
and Proviso 1 of Rule 28(1) of the 2011 Rules. Rules 27 and 28
come under Chapter IV of the 2011 Rules relating to general
provisions regarding site and building requirements. Chapter VIII
of the 2011 Rules is titled as "Buildings in small plots". Rule 62
specifically says that the provisions of Chapter VIII will apply to
the construction or reconstruction of residential or commercial
buildings or a combination of both in plots not exceeding 1.25
Ares. Since the plot in which the petitioner seeks to construct the
building is only of an extent of 2 cents, it will necessarily come
within the meaning of a small plot as stipulated in Rule 62. Rule
64 specifically says that the minimum distance between the plot
boundary abutting any street other than National Highways, State
Highways, district roads, and other roads notified by the Grama
Panchayat and the building other than a compound wall or fence or
outdoor display structure shall be 2 meters. Rule 65 specifically
W.P.(C)No.2230 of 2021
says that the provisions regarding FAR, coverage, distance from
central line of road, access width, height restriction with regard to
the width of the road and the yard abutting the road, car parking
dimension with regard to the building parts, light and ventilation
shall not apply to buildings under the Chapter. When special
provisions are made with regard to construction in small plots,
unless otherwise intended, the said provisions will have to be
applied and the general provisions contained in Chapter 4 cannot
apply. I find considerable force in the contentions raised by the
petitioner. It is settled law that when there is a specific provision,
the general provision will not apply. The maxims "Generalia
Specialibus non derogant" and "Generalibus Specialia derogant" do
not need any further exposition in the light of several decided
cases of the Hon'ble Supreme Court and this Court.
6. The respondents have not considered the aspect that
the construction is in a small plot governed by Chapter VIII of the
2011 Rules. The reasons stated in Ext.P10 that the set-back under
Rule 23(2) is not available in the plan submitted is not sustainable
since the Rule relied on is the 2019 Rules. The reasons stated in
Ext.R2(k) by the Town Planner regarding violation of Proviso 2 of
Rule 27(10) and Proviso 1 of Rule 28(1) also cannot be sustained
in the light of the fact that the petitioner's construction is governed
by Chapter VIII of the 2011 Rules.
W.P.(C)No.2230 of 2021
7. In the result, the writ petition is allowed. Exts.P3, P5
and P10 are quashed. The violation pointed out in Ext.R2(k)
regarding Rules 27 and 28 of the 2011 Rules are held to be
unsustainable. It is declared that the petitioner's construction
covered by Ext.P2 is governed by Chapter VIII of the 2011 Rules.
The petitioner shall be entitled to continue the construction in
terms of Ext.P2 permit and Ext.P9 plan so long as the petitioner
complies with the requirements contained in Chapter VIII of the
Kerala Panchayat Building Rules, 2011. The respondents are free
to take necessary action, if it is noticed that the petitioner does not
comply with the requirements of Chapter VIII of 2011 Rules.
Sd/-
T.R. RAVI
JUDGE
dsn
W.P.(C)No.2230 of 2021
APPENDIX OF WP(C) 2230/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT DATED
19.6.2020 ISSUED TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT DATED
14.9.2018 ISSUED IN FAVOUR OF THE PREDECESSOR-
IN-INTEREST OF THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 16.6.2020 ISSUED
BY THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE REPLY DATED 22.6.2020
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 25.8.2020 ISSUED
BY THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE REPLY DATED 7.9.2020 SUBMITTED
BY THE PETITIONER, BEFORE THE 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE FIELD MAP DATED 1.7.20,
PREPARED BY THE VILLAGE OFFICER, KEEZHUPARAMBA
WITH RESPECT TO THE PROPERTY OF THE PETITIONER.
EXHIBIT P8 TRUE COPY OF THE COVERING LETTER DATED
1.7.2020, BY THE VILLAGE OFFICER,
KEEZHUPARAMBA.
EXHIBIT P8(A) TRUE COPY OF THE LOCATION MAP PREPARED ON
25.6.2020, BY THE VILLAGE OFFICER KIZHUPARAMBA.
EXHIBIT P9 TRUE COPY OF THE SITE PLAN SUBMITTED BY THE
PETITIONER.
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 24.12.2020
ISSUED BY THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS
EXT.R2(A) A TRUE COPY OF THE COMPLAINT SUBMITTED BY
MUNEER K.V. DATED 25.06.2020
EXT.R2(B) A TRUE COPY OF THE COMMUNICATION OF THE
ASSISTANT ENGINEER, LSGD SECTION DATED
09.06.2020
EXT.R2(C) A TRUE COPYOF THE COMMUNICAATION TO THE
ASSISTANT ENGINEER DATED 11.06.2020
EXT.R2(D) A TRUE COPY OF THE COMMUNICATION OF THE
ASSISTANT ENGINEER DATED 16.06.2020
EXT.R2(E) A TRUE COPY OF THE NOTES OF THE SECTION CLERK
W.P.(C)No.2230 of 2021
DATED 16.06.2020
EXT.R2(F) A TRUE COPY OF THE NOTES OF THE SECTION CLERK
DATED 19.06.2020
EXT.R2(G) A TRUE COPY OF THE LETTER TO THE VILLAGE
OFFICER DATED 23.06.2020
EXT.R2(H) A TRUE COPY OF THE LETTER OF THE VILLAGE
OFFICER DATED 03.07.2020
EXT.R2(I) A TRUE COPY OF THE NOTES SUBMITTED DATED
06.07.2020
EXT.R2(J) A TRUE COPY OF THE INFORMATION RECORDED IN THE
FRONT OFFICE REGISTER DATED 25.07.2020
EXT.R2(K) A TRUE COPY OF THE COMMUNICATION FROM THE TOWN
PLANNER, MALAPPURAM DATED 11.08.2020
