Kerala High Court
Kandanassery Grama Panchayat vs Thressiamma Simon on 21 May, 2024
Author: N. Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
RP NO. 1187 OF 2023
AGAINST THE JUDGMENT DATED 15.09.2023 IN WP(C) NO.12480
OF 2023 OF HIGH COURT OF KERALA
REVIEW PETITIONER/6TH RESPONDENT:
KANDANASSERY GRAMA PANCHAYAT
REP. BY THE SECRETARY,
CHOONDAL MATTOM ROAD, MATTOM P.O.,
THRISSUR DISTRICT, PIN - 680602.
BY ADV SANTHOSH P.PODUVAL
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 5 & 7:
1 THRESSIAMMA SIMON
AGED 58 YEARS, W/O.SIMON,
THARAKAN HOUSE, MATTOM P.O.,
THALAPPILLY TALUK,
THRISSUR DISTRICT, PIN - 680602.
2 STATE OF KERALA
REP. BY THE SECRETARY TO THE GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVT.SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001.
3 THE DISTRICT COLLECTOR
THRISSUR DISTRICT, COLLECTORATE, AYYANTHOLE,
THRISSUR, PIN - 680003.
4 THE TOWN PLANNER
OFFICE OF THE DISTRICT TOWN PLANNER,
LSGD PLANNING, DISTRICT PLANNING BHAVAN,
2ND FLOOR, AYYANTHOLE, THRISSUR PIN - 680022.
RP No.1187/2023
:2:
5 THE TAHSILDAR
(LAND RECORDS), MINI CIVIL STATION,
KAKKAD, YESUDASROAD, KUNNAMKULAM,
THRISSUR DISTRICT, PIN - 680503.
6 THE VILLAGE OFFICER
ALOOR VILLAGE OFFICE, THALAPPILLY TALUK,
THRISSUR DISTRICT, PIN - 680602.
7 THE ASSISTANT EXECUTIVE ENGINEER
PWD(ROAD DIVISION) CHAVAKKAD,
THRISSUR DISTRICT, PIN - 680506.
BY ADVS.
SRI.N.L.BITTO,
SRI.S.GOPINATHAN, SR. GOVERNMENT PLEADER
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RP No.1187/2023
:3:
N. NAGARESH, J.
`````````````````````````````````````````````````````````````
R.P. No.1187 of 2023
in
W.P.(C) No.12480 of 2023
`````````````````````````````````````````````````````````````
Dated this the 21st day of May, 2024
ORDER
~~~~~~
W.P.(C) No.12480/2023 was filed by the 1 st
respondent-writ petitioner seeking to direct the review
petitioner-Panchayat to number the building of the petitioner
within a reasonable time.
2. After hearing the parties, this Court found that the
petitioner had submitted application for construction of the
building in the year 1999 and NOC was granted for
construction as per Ext.P1. According to the petitioner, during
the construction of the building, the PWD authorities
encroached upon the front side of the petitioner's property and
widened the road tarring a portion of the petitioner's property
also. Consequently, there is no setback from the PWD road. It
was for that reason that the application submitted by the
petitioner for Occupancy Certificate was rejected.
3. In W.P.(C) No.1695/2021 filed by the writ petitioner,
this Court directed the District Collector to hear the petitioner
and decide the issue. After hearing, Ext.P9 order was passed
by the District Collector directing that the Secretary to the
Panchayat and Assistant Executive Engineer, PWD should
conduct a joint survey of the property/road and ascertain the
clearance. After such survey, the Public Information Officer
informed that the PWD (Road Section) has no objection
regarding the building of the petitioner.
4. However, Occupancy Certificate was denied to the
petitioner pointing out lack of parking space, setback of 1.5
metres, lack of fire escape stair, etc. After hearing the writ
petition (W.P.(C) No.12480/2023), this Court held that the
application for construction of the building was made in the
year 1999 and NOC was granted. As the PWD had no
objection with regard to the setback from the PWD road, this
Court held that the Panchayat authorities have no justification
in not issuing Occupancy Certificate to the petitioner. The
defects pointed out in Ext.P11 are based on the Kerala
Panchayat Building Rules, 2019. This Court also found that the
requirements under the KPBR, 2019 cannot be imposed on the
petitioner. The writ petition was therefore disposed of directing
the review petitioner (6th respondent-Panchayat in the writ
petition) to assign number to the petitioner's building and issue
Occupancy Certificate.
5. The Panchayat has now filed the review petition.
According to the review petitioner, Ext.P1 NOC issued by the
Panchayat was for construction of a residential house and the
petitioner has constructed a commercial building. The
petitioner has submitted application for regularisation which is
referred to in the communications made by the Panchayat. The
crucial fact that the building constructed is a commercial
building which is borne out by the records was omitted to be
considered. Hence, the judgment dated 15.09.2023 in W.P.(C)
No.12480/2023 is liable to be reviewed.
6. I have heard the learned counsel for the review
petitioner, the learned counsel appearing for the 1 st
respondent-writ petitioner and the learned Senior Government
Pleaders representing respondents 2 to 7 in the writ petition.
7. The writ petition was filed by the 1 st respondent
alleging that occupancy is being denied to her on the ground
that there is no setback from the PWD road. Pursuant to the
directions of this Court in W.P.(C) No.1695/2021, the Deputy
Collector passed Ext.P9 order directing the Secretary to the
Panchayat and PWD Assistant Executive Engineer to make
inspection of the road and building and to ensure that
clearance as per the Building Rules is provided. Ext.P10
information of the Assistant Engineer, PWD (Roads) would
show that the PWD has no objection to the construction of
building by the petitioner. In spite of the stand taken by the
PWD, the Secretary to the Panchayat issued Ext.P11 pointing
out certain Building Rules violation.
8. This Court, after examining the matter, found that
Ext.P1 NOC for construction was granted to the petitioner as
per the Building Rules as existed in the year 1999 and the
violations pointed out by the Panchayat were based on
Building Rules prevalent in the year 2019. Consequently, the
writ petition was disposed of by this Court directing the
Panchayat to assign building number to the petitioner's building
and to issue Occupancy Certificate to the petitioner.
9. In the review petition, the Panchayat has come up
with a new case that NOC was for construction of a residential
house and the building constructed by the petitioner is a
commercial building. Such a statement was not made in the
pleadings or in the arguments at the time of hearing the writ
petition. The writ petition was disposed of on the basis of
materials available on record. In the afore facts, I find no
reason to review the judgment in the writ petition, as there is no
error apparent on the face of the records.
The review petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/13.05.2024
REVIEW PETITIONER'S ANNEXURE
Annexure A A COPY OF THE APPLICATION SUBMITTED BY
THE 1ST RESPONDENT FOR REGULARIZATION.
