Kerala High Court
Abdul Naser vs The State Of Kerala on 31 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
WP(C) NO. 21318 OF 2016
PETITIONER:
ABDUL NASER
AGED 23 YEARS
S/O KALATHIL ABOOBACKER, KALATHIL HOUSE, CHERUMUKKU
(P.O.), NANNAMBRA, TIRURANGADI TALUK, MAMAPPURAM
DISTRICT.
BY ADV SRI.MILLU DANDAPANI
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY SECRETARY TO THE EDUCATION DEPARTMENT
THIRUVANANATHUPURAM
2 THE ASSISTANT EDUCATION OFFICER TANUR
TANUR (PO), TANUR, MALAPPURAM DISTRICT.
3 THE NAQNNAMBRA GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, NANNAMBRA (PO), TIRUNGADI
TALUK, MALAPPURAM DISTRICT.
4 THE SECRETARY, NANNAMBRA GRAMA PANCHAYAT,
NANNAMBRA (PO), TIRUANGADI TALUK, MALAPPURAM DISTRICT.
5 THE TAHSILDAR,
TIRURANGADI, TIRURANGADI (PO), MAMAPPURAM DISTRICT.
6 THE VILLAGE OFFICER NANNAMBRA,
NANNAMBRA (PO), TIRURANGADI TALUK, MALAPPURAM DISTRICT.
7 THE P.S.S.A.M.M U.P. SCHOOL,
REPRESENTED BY ITS MANAGER, ANJALAN KUNHAHAMMED HAJI,
S/O MUHAMMEDKUTTY, PADINJARE NALIL HOUSE, PARAMBIL
PEEDIKA (PO), PIN-676315, TIRUANGADI TALUK, MALAPPURAM
DISTRICT.
8 SAKEER
AGED 44 YEARS, S/O LATE ANCHALAN KUNHAHAMMED HAJI,
ANCHALAN HOUSE, OLAKARA AMSOM, KOYAPPA DESOM SUPER
BAZAR, PARAMBIL PEEDIKA P.O., MALAPPURAM DISTRICT,
PIN- 676317
9 MUSTHAFA,
AGED 41 YEARS, S/O LATE ANCHALAN KUNHAHAMMED HAJI,
ANCHALAN HOUSE, OLAKARA AMSOM, KOYAPPA DESOM SUPER
BAZAR, PARAMBIL PEEDIKA P.O., MALAPPURAM DISTRICT, PIN-
676317
W.P.(C). No.21318 of 2016 2
10 RAMLA,
AGED 41 YEARS, D/O LATE ANCHALAN KUNHAHAMMED HAJI,
ANCHALAN HOUSE, OLAKARA AMSOM, KOYAPPA DESOM SUPER
BAZAR, PARAMBIL PEEDIKA P.O., MALAPPURAM DISTRICT,
PIN- 676317
11 HASEENA,
AGED 41 YEARS, W/O LATE ANCHALAN KUNHAHAMMED HAJI,
ANCHALAN HOUSE, OLAKARA AMSOM, KOYAPPA DESOM SUPER
BAZAR, PARAMBIL PEEDIKA P.O., MALAPPURAM DISTRICT,
PIN- 676317
12 MUHAMMAD ADIL,
AGED 18 YEARS, S/O LATE ANCHALAN KUNHAHAMMED HAJI,
ANCHALAN HOUSE, OLAKARA AMSOM, KOYAPPA DESOM SUPER
BAZAR, PARAMBIL PEEDIKA P.O., MALAPPURAM DISTRICT,
PIN- 676317
13 FATHIMA DIYANA,
AGED 10 YEARS (MINOR), S/O LATE ANCHALAN KUNHAHAMMED
HAJI, ANCHALAN HOUSE, OLAKARA AMSOM, KOYAPPA DESOM
SUPER BAZAR, PARAMBIL PEEDIKA P.O., MALAPPURAM
DISTRICT, PIN- 676317, MINOR REPRESENTED BY THE MOTHER
HASEENA, AGED 41 YEARS, W/O LATE ANCHALAN KUNHAHAMMED
HAJI,ANCHALAN HOUSE, OLAKARA AMSOM, KOYAPPA DESOM SUPER
BAZAR, PARAMBIL PEEDIKA P.O., MALAPPURAM DISTRICT, PIN-
676317.
ADDL. R8 TO R13 ARE IMPLEADED AS PER ORDER DATED
21/12/2022 IN IA 1/2022 IN WP(C) 21318/2016
BY ADVS.
R1, R2, R5 & R6 BY SRI.RAJEEV JYOTHISH GEORGE,
R3 & R4 BY SRI.P.V.ANOOP
R7 BY SRI.P.G.JAYASHANKAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C). No.21318 of 2016 3
JUDGMENT
Dated this the 31st day of March, 2023
This writ petition is filed by a resident of Tirurangadi Taluk, Malappuram
District, seeking a direction to the Assistant Educational Officer, Tanur,
Malappuram District - the 2nd respondent, to initiate immediate action to prevent
illegal functioning of P.M.S.A.M.M.U.P. School, Tirurangadi Taluk, Malappuram
District - the 7th respondent.
2. Brief material facts for the disposal of the writ petition are as follows:
2.1 According to the petitioner, the petitioner is the co-owner of 26 cents of
property comprised in R.S.No.35/6 and 21 cents of property in R.S. No.34/15 of
Nannambra Village, along with his sisters. It is the case of the petitioner that
the said property was secured by the petitioner by way of a registered document
No.855/1996 of the office of the Sub Registrar, Tanur. The said property
originally belonged to the grandfather of the petitioner Mammad Haji, who
executed a settlement deed in favour of the petitioner and his sisters - Raseena
and Rasheeda. It is further stated that mutation of the property was effected
and the basic tax was being paid, evident from Exhibits P1 to P3.
3. According to the petitioner, the grandfather of the petitioner had
constructed a building on the 21 cents of property in R.S. No.34/15, which is
situated near to the property in R.S.No.36/5, wherein a school was functioning.
The petitioner's grandfather had also constructed a building having No.6/284 in
R.S.No.34/5 and the school was functioning in the above building. It is the case
of the petitioner that the building was constructed in the property for renting
out the property and to earn livelihood but the building is not numbered by the
Panchayat stating that there is violation of Building Rules.
4. It is the further case of the petitioner that the nearby property owner of
the petitioner filed complaints stating that the building constructed intrudes into
his property, which was the reason for not numbering the building. It is further
submitted that the application for numbering the building was dismissed by the
Panchayat as per Exhibit P5 order dated 20.8.2015. The case projected by the
petitioner is that in spite of the same, the 7 th respondent school is functioning in
the property situated in R.S.No.36/5 of Nannambra Village in the building
bearing No.5/284.
5. It is further submitted that the Manager of the school viz., Anjalan
Kunhahammed Haji, who is the sister's husband of petitioner's mother Rukhiya,
expressed his desire to demolish the building having number, 5/284 and to
construct a new one in the property with much better facilities, however, there
was no alternative site for the building. During the said time, the building was
constructed in R.S.No.34/15 and waiting for numbering of the building from the
Panchayat. Therefore, the Manager requested the petitioner to hand over his
building for rent to the school temporarily till the construction of the new
building is completed. According to the petitioner, petitioner agreed for the same
and the property was rented out on the basis of an oral agreement and the 7 th
respondent was paying rent to the petitioner.
6. The case of the petitioner is that the Manager did not construct any new
building and continued in the building rented out by the petitioner. It is also
submitted that the petitioner came to understand that the Manager was using
the petitioner's building by affixing the building No.5/284 of his old building.
Accordingly, the petitioner made a complaint to the 3rd respondent Panchayat,
which conducted an enquiry and Exhibit P6 intimation dated 29.1.2015 directing
demolition of the building constructed in violation of the Building Rules. It is
further submitted that the fitness certificate was cancelled, however, the school
was conducted by the Manager in the said building. It is also submitted that
even though complaints were filed before the educational authorities, no action
is initiated and therefore, the running of the school in an unnumbered building
cannot be sustained.
7. The Panchayat and its Secretary have filed a detailed counter affidavit
basically stating that the Panchayat has no interest in the property dispute by
and between the petitioner and the Manager of the 7th respondent school.
However, it is admitted that the application submitted for numbering of the
building was rejected by the Secretary of the Panchayat. It is also submitted that
a notice was issued to the 7th respondent regarding the illegal construction of a
school building, however, the 7th respondent reported the construction of the
building on 20.7.2007, at a time when the Kerala Municipality Building Rules
was implemented in the Panchayat area; and the building under construction at
that time was exempted by the provisions of the Kerala Municipality Building
Rules. Therefore, according to the Panchayat, the basic tax receipt and the
possession certificate wherein in the school now functioning, were produced by
the 7th respondent and the Panchayat has not taken any action. That apart, it is
submitted that the Manager of the 7th respondent school has submitted an
application for regularisation/numbering of the building on 20.7.2007, however,
the Panchayat has not taken any final decision due to the pendency of this writ
petition. Along with I.A No.1 of 2023, the 8 th respondent viz., Sakeer, S/o.late
Anchalan Kunhahammed Haji - the erstwhile Manager of the school, has
produced a fitness certificate issued by the Assistant Engineer, LSGD Section,
Nannambra dated 1.6.2022, certifying that the building structure of the school
situated in three floors is a sound structure under normal wind and weather
conditions; which is applicable for the year 2022-2023. Learned counsel for
Panchayat has also submitted that the application submitted for regularisation by
the Manager of the school will be considered by the Secretary of the Grama
Panchayat in accordance with the Building Rules in force.
8. I have heard learned counsel for petitioner Sri.Millu Dandapani, learned
Government Pleader Sri.Rajeev Jyothish George, Sri.P.V.Anoop for the Panchayat
and its Secretary, Sri.P.G.Jayashanker for the Manager of the school, and
perused the pleadings and material on record.
9. The discussion made above would make it clear that the building in which
the school is conducted is not numbered by the Panchayat but fact remains the
Panchayat is admitting the fact that the building was constructed in the year
2007 and the school is being conducted in the building. In fact, the Kerala
Panchayat Building Rules came into force for the first time in the year 2011.
However, by virtue of the powers conferred on the Government under the Kerala
Panchayat Raj Act, 1994, the Kerala Municipality Building Rules, 1999 was made
applicable to the Panchayats during the year 2007. Anyhow, the Manager has
now submitted an application seeking regularisation of the building constructed
and it is for the Secretary of the Grama Panchayat to take a decision on the
same. It is also an admitted fact that the school was being conducted in the
building in question for long and a fitness certificate is issued in respect of the
building wherein the school is conducted. Therefore, all of a sudden the
educational authorities cannot be directed to take action against the 7 th
respondent school since it would materially affect the students pursuing their
studies, and the teachers and the management. Therefore, it is better that the
Secretary of the Grama Panchayat is directed to take a decision on the
application submitted by the Manager of the school for regularisation of the
construction taking into account all attendant factors.
Therefore, the writ petition is disposed of directing the Secretary of
Nannambra Grama Panchayat, Tirur Taluk, Malappuram District - the 4 th
respondent, to take a decision in the application submitted by the Manager of
the 7th respondent school for regularisation of the building constructed, at the
earliest, at any rate, within two months from the date of receipt of a copy of this
judgement, and take all consequential action based on the outcome of the
decision in the said application. However I make it clear that the direction made
above shall not be construed as an expression of any opinion on the merits of
the property dispute if any is pending by and between the parties. Therefore all
the contentions raised in that regard are left open.
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX OF WP(C) 21318/2016
RESPONDENTS' EXHIBITS
Exhibit R8a TRUE COPY OF THE FITNESS CERTIFICATE FOR THE
ACADEMIC YEAR 2022-2023 DATED 01.06.2022
Exhibit R4(a) TRUE COPY OF THE ORDER NO.B3 14659/2015 DATED
01.06.2016 OF THE TAHSILDAR, THIRURANGADI
Exhibit R4(b) TRUE COPY OF THE DOCUMENT NO.408/03 DATED
7.2.2003.
PETITIONER EXHIBITS
P1 A TRUE COPY OF THE BASIC TAX PAID TO THE
PROPERTY DATED 21.10.97.
P2 A TRUE COPY OF THE BASIC TAX PAID BY THE
PETITIONER DATED 9.10.2001.
P3 A TRUE COPY OF THE BASIC TAX PAID ON
19.3.2015.
P4 A TRUE COPY OF THE APPLICATION FILED BY THE
PETITIONER FOR NUMBERING THE BUILDING DATED
11.5.2015.
P5 A TRUE COPY OF THE NOTICE OF THE 4TH
RESPONDENT DATED 20.8.2015.
P6 A TRUE COPY OF THE INTIMATION GIVEN BY THE
3RD RESPONDENT PANCHAYATH DATED 29.1.2015.
P7 A TRUE COPY OF THE REPRESENTATION FILED BY
THE PETITIONER BEFORE THE 3RD RESPONDENT
PANCHAYATH DATED 13.4.2015.
P8 A TRUE COPY OF THE REPRESENTATION FILED BY
THE PETITIONER BEFORE THE 2ND RESPONDENT
DATED 14.9.2015.
