Ali v. Village Officer, Othukkungal Village; Asst. Engineer, P.W.D (Road), Kottakkal Division; Othukkungal Grama Panchayath and Secretary

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945** **WP(C) NO. 12350 OF 2023** ## **PETITIONER :** **ALI,** **AGED 46 YEARS, S/O MOYTHU, KURUVAKOOTTIL HOUSE, UTHHARANI, PUTTHUUR, KOTTAKKAL, PIN – 676 503** **BY ADV P.T.SHEEJISH** ## **RESPONDENTS :** - **1 VILLAGE OFFICER, OTHUKKUNGAL VILLAGE, OTHUKKUNGAL P.O., MALAPPURAM DISTRICT, PIN – 676 528** - **2 ASST. ENGINEER, P.W.D (ROAD), KOTTAKKAL DIVISION, MALAPPURAM DISTRICT, PIN – 676 528** - **3 OTHUKKUNGAL GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, OTHUKKUNGAL, MALAPPURAM DISTRICT, PIN - 676528** - **4 SECRETARY, OTHUKKUNGAL GRAMA PANCHAYATH, OTHUKKUNGAL, MALAPPURAM DISTRICT, PIN - 676528** **R1 & R2 BY SRI. K.V. MANOJ KUMAR, SENIOR GOVERNMENT PLEADER** **R3 & R4 BY ADV.CHACKO C.A.,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **19.12.2023, THE COURT ON 04.01.2024 DELIVERED THE FOLLOWING:** **WP(C) NO. 12350 OF 2023** 2 **BECHU KURIAN THOMAS, J. ---------------------------------------W.P.(C).No.12350 of 2023 --------------------------------------Dated this the 4[th] day of January, 2024** ## **JUDGMENT** Petitioner challenges Ext.P5 and also seeks a declaration that he has obtained a deemed building permit pursuant to Ext.P3 application. 2. Petitioner is the co-owner of a property in Survey No.49/39 of Othukkungal Village. With the intention of constructing a commercial building, he applied for a building permit on 20.12.2021, as evidenced by Ext.P2 receipt acknowledging his application. Subsequently, on 16.04.2022, he was asked to resubmit the application after making some rectifications. After curing the defects pointed out, petitioner resubmitted the application through Ext.P3 on 16.04.2022. Since 3[rd] respondent failed to respond to his application, petitioner commenced construction assuming that he had obtained a deemed building permit. 3. While the construction was going on, a dispute arose regarding drainage constructed by the Public Works Department (for short, PWD) which opened into the petitioner’s property. After **WP(C) NO. 12350 OF 2023** 3 petitioner filed W.P.(C) No.1280 of 2023, for a direction to consider the complaint filed by the petitioner and to take action against the overflow of drainage waste into the petitioner's property, a stop memo as Ext.P5 was issued by the Panchayat on 21.03.2023 stating that petitioner had to obtain a building permit and NOC from the PWD before carrying out constructions. Petitioner alleges that the drainage has been constructed in such a way that the outlet opens towards his property, which has damaged his courtyard, garden, and agriculture, and that despite several complaints, no action has been initiated. It is further stated that the respondents have not taken any steps to demolish the illegal drainage, causing nuisance, damage and health issues to the petitioner and others, and instead a stop memo has been issued to the petitioner. It is in such circumstances that petitioner filed this writ petition challenging the stop memo. 4. In the counter affidavit filed on behalf of respondents 3 and 4, it is stated that petitioner’s initial application for building permit was defective and later, he re-submitted the application on 16.04.2022 and while processing the said application, a communication Ext.R4(a) was received from the 2[nd] respondent on 21.04.2022 informing that the permit should be granted only after **WP(C) NO. 12350 OF 2023** 4 making provision for the natural flow of water through petitioners property. On the basis of Ext.R4(a) communication, the construction of the building by the petitioner near Othukkungal-Vengara road was directed to be halted as it caused obstruction to the outlet of the culvert on the Tirur-Malappuram road with a portion of the culvert of PWD situated on the petitioner’ property. According to the 3[rd] respondent, by a communication dated 07.06.2022, petitioner was asked to obtain NOC from the 2[nd] respondent due to the culvert existing on the property of the petitioner. Relying upon Ext.R4(b), it was pointed out that as and when NOC is obtained from the PWD, petitioner can be granted a permit. 5. Respondents 3 and 4 have further averred that by a letter dated 06.09.2022, the 2[nd] respondent informed the Panchayat that the petitioner had assured to construct the drainage in his property with sufficient capacity at his own expense, along the retaining wall constructed by the PWD, and that the building permit can be issued only after PWD issues NOC on satisfactory construction of the drainage undertaken by the petitioner. It was also pointed out that since petitioner had not approached for permission and not produced any NOC, the Executive Engineer of PWD informed that petitioner had illegally reclaimed the drainage and the culvert and **WP(C) NO. 12350 OF 2023** 5 the District Collector had issued a communication dated 01.11.2022 directing initiation of appropriate legal action against the illegal closure of the drainage system and culvert on the road. The 4[th] respondent further stated that petitioner had suppressed the fact of his written undertaking to construct a drainage in his property at his own expense and, therefore, without obtaining the NOC from the 2[nd] respondent, his application for building permit is defective. Without getting the NOC and the permit, the petitioner continued with the construction and it was in such circumstances that the said stop memo was issued. The 4[th] respondent further alleged that if the building permit is issued without constructing the drainage, it would obstruct the natural flow of water and may even flood the Othukkungal town. 6. In the counter affidavit filed by the 2[nd] respondent, it is stated that the Tirur-Malappuram road is an important State Highway and the drainage leading from two sides of the town joins in the culvert within the chainage 19/150 to 19/250. The natural slope of the land and the geological structure are in the same direction as the natural flow and the outlet of the culvert leads to petitioners property, which has now been filled up for construction purposes by dumping huge quantities of soil by persons, including **WP(C) NO. 12350 OF 2023** 6 the petitioner. According to the 2[nd] respondent, this illegal action has led to the closure of the outlet of the culvert, and various buildings including hospitals and commercial buildings have been constructed without providing any alternative measures. The 2[nd] respondent further asserted that PWD had issued a letter to the Panchayat to stop construction of building works at the construction stage itself and that they gave a letter to the District Collector cum Chairman of the Disaster Management Authority to open the closed drainage and culvert on the basis of which the PWD officials have now opened the closed culvert in the presence of the Tahsildar. After a few months, persons, including the petitioner, again approached the Executive Engineer and demanded a joint inspection of the site to get a practical solution. The said Officer directed the private persons to construct a new drainage or pipe culvert through their own land at their own cost, which was accepted by the parties. However, after the meeting, they again started to develop their lands by dumping soil in the dip land and continued the building construction work. Due to the construction work, the entire culvert is under the converted land and there is no space or land available to carry the runoff water during the upcoming rainy season. It is further alleged that the private parties, including the petitioner, had **WP(C) NO. 12350 OF 2023** **==> picture [7 x 10] intentionally omitted <==** illegally closed the culvert outlet for their own benefits and hence, they are responsible for making an alternative way to carry the natural runoff. 7. An additional counter affidavit was filed by the 2[nd] respondent pursuant to the direction of this Court wherein it is _inter alia_ stated that petitioner himself had submitted an undertaking in writing on 18.02.2022 admitting the factum of encroachment and agreed to reconstruct the drainage, which was blocked and filled by him. A copy of the alleged undertaking dated 18.08.2022 was produced as Ext.R2(d). The 2[nd] respondent further stated that proceedings against the petitioner have already been taken under the Disaster Management Act since the culvert is being interfered with by the petitioner. 8. I have heard Sri.P.T.Sheejish, the learned counsel for the petitioner, Sri.K.V.Manoj Kumar, the learned Senior Government Pleader and Sri.C.A.Chacko, the learned Standing Counsel. 9. During the course of the hearing, since petitioner had denied any undertaking having been given by him regarding the construction of the culvert, and on perusing the document produced, a doubt arose regarding the veracity of Ext.R2(d). Hence, the original files were called for, and I have perused those as well. **WP(C) NO. 12350 OF 2023** 8 10. The issue relates to an application submitted by the petitioner for the construction of a commercial building on his own property. Though the final application after rectification of the defects was submitted on 16.04.2022, till date, the 4[th] respondent has not passed any orders. 11. However, assuming that the failure to communicate has given rise to a deemed permit, the petitioner commenced the construction. In the meantime, on the basis of the communication from the 2[nd] respondent that an NOC is necessary from the PWD, the 4[th] respondent issued a stop memo to the petitioner. 12. The first question to be considered is whether the petitioner has obtained a deemed permit. In this context, the decision in **G.George and Ors. v. Pooyappally Grama Panchayath** [2020 (6) KHC 652] is relevant. Dealing with the provisions of the Kerala Panchayat Building Rules, 2011, the Division Bench of this Court held that even if an application for a building permit was submitted and no action was taken, it cannot be said that the applicant will be entitled to get a deemed permit. It was further observed that Section 236(3) of the Kerala Panchayat Raj Act, 1994, is a general provision which will not come into play in the case of building permits. **WP(C) NO. 12350 OF 2023** 9 13. The learned counsel for the petitioner could not point out any provision under the Kerala Panchayat Building Rules, 2019, which confers a deeming status to an application for a building permit, unlike that in the Kerala Municipality Building Rules, 2019. A deemed licence is a creation of the statute. In the absence of any statutory provision conferring a deemed building permit under the KPBR and in view of the judgment in **George's case** (supra), the claim of the petitioner that he has obtained a deemed building permit is not legally tenable and is hence rejected. 14. Notwithstanding the above, petitioner’s application for building permit is pending consideration before the 4[th] respondent. Building permits are to be considered in a time-bound manner, and the same cannot be kept pending unnecessarily under one pretext or the other. In the instant case, the 4[th] respondent contends that an NOC from the Public Works Department is necessary before commencing construction of the building. The reason for insisting on NOC from the PWD is the existence of a culvert opening into petitioner’s property. The PWD states that the petitioner must construct a culvert or divert the opening of the culvert through his property, for which the building permit should not be granted unless such construction is carried out. However, such a requirement is **WP(C) NO. 12350 OF 2023** 10 contrary to law. In fact, the Public Works Department could not have constructed any drainage or culvert through a private property unless the said property was acquired under law. Further, the PWD cannot also open a culvert into the petitioner’s property alleging the natural flow of water into such property and thereafter demand the same to be retained throughout. As an owner of a property petitioner has the proprietary right to do any activity on his land subject to regulatory provisions of law. No one has any right to construct drainage through petitioner's property, nor can a person open a drain or a culvert into petitioner's property. Petitioner can also prevent any drain from being opened into his property in exercise of his rights as an owner of the property. 15. In this context, it is necessary to advert to Ext.R4(d), which is purported to be an undertaking given by the petitioner. As mentioned earlier, since this Court felt doubt about the veracity of Ext.R4(d), the original files were called for. It is noticed from Ext.R4(d) as well as from the original files that the said alleged undertaking kept in the files are not signed by any person. Ext.R2(d) is not signed by the petitioner, and instead, two ‘X’ marks are put in pencil in the original letter indicating the space in which the signatures are to be affixed. Rather, curiously, this letter **WP(C) NO. 12350 OF 2023** 11 is seen to have been acted upon, as is evident from the endorsements on the first page. It needs no elaborate consideration to arrive at a conclusion that the said letter must have been prepared by someone intending it to be signed by the petitioner and another person. Though there is no signature, the said document has been utilized as a signed document. The said conduct is highly deprecated, and it is held that petitioner has not given any undertaking to provide the drainage through his property as stated in Ext.R2(d). No obligation or liability can be fastened on the petitioner on the basis of Ext.R2(d), which is an inchoate document and cannot be acted upon. Producing such an unsigned document and claiming the same to have created a liability upon the petitioner is unwarranted and highly improper. 16. Even otherwise, the attempt of the second respondent is to compel the petitioner to construct a drainage through his private property. Petitioner as the owner of a property is entitled to enjoy every inch of his property without interference from any person. The PWD is not entitled to compel the petitioner to construct a drainage at his cost through his property. If a drainage has to be constructed through petitioner’s property, the only remedy available under the law is to acquire the same and construct it. As long as no **WP(C) NO. 12350 OF 2023** 12 proceeding for the acquisition of land of the petitioner has been initiated, the PWD cannot compel the petitioner to obtain an NOC from them for constructing a building. The demand of the PWD to obtain an NOC from them or to construct a drainage through his property is illegal, arbitrary and not valid under law. In the above circumstances, Ext.P5 stop memo is set aside to the extent it observes that NOC is required from the PWD. There will be a direction to the 4[th] respondent to consider and pass appropriate orders on the application for building permit submitted by the petitioner on 16.04.2022, as expeditiously as possible, at any rate, within a period of 30 days from the date of receipt of a copy of this judgment. It is clarified that while passing orders as directed above, neither shall NOC from the PWD nor any condition for constructing a culvert or drainage through the petitioner’s property be insisted upon. Needless to say, petitioner will not be entitled to construct the building without obtaining a building permit as per law. The writ petition is allowed in part as above. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C) NO. 12350 OF 2023** 13 ## **APPENDIX OF WP(C) 12350/2023** ## **PETITIONER'S EXHIBITS :** **Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT ISSUED IN FAVOR OF THE PETITIONER DATED 06/10/2022 ISSUED BY THE 1ST RESPONDENT** **Exhibit P2 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT DATED 20.12.2021** - **Exhibit P3 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT RESUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 16.04.2022** - **Exhibit P4 TRUE COPY OF THE PHOTOGRAPH OF THE BUILDING UNDER CONSTRUCTION** - **Exhibit P5 TRUE COPY OF THE STOP MEMO ISSUED BY THE 3RD RESPONDENT PANCHAYAT TO THE PETITIONER DATED 21.03.2023** - **Exhibit P6 THE TRUE COPY OF THE COMPLAINT DATED 09.10.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **RESPONDENTS' EXHIBITS :** - **EXHIBIT R2(A) TRUE COPY OF THE LETTER SUBMITTED BY THE 2ND RESPONDENT TO THE ASSISTANT EXECUTIVE ENGINEER(ROADS),MANJERI DATED.17.06.2022.** - **EXHIBIT R2(B) TRUE COPY OF THE LETTER DATED 06.07.2022 ISSUED BY THIS RESPONDET TO THE ASSISTANT EXECUTIVE ENGINEER (ROAD SUB DIVISION) MANJERI.** - **EXHIBIT R2(C) TRUE COPY OF THE LETTER ISSUED BY THE EXECUTIVE ENGINEER DATED 05.07.2022 TO THE DISTRICT COLLECTOR, MALAPPURAM.** **EXHIBIT R2(D) TRUE COPY OF THE UNDERTAKING GIVEN BY THE PETITIONER DATED.18.08.2022.** **WP(C) NO. 12350 OF 2023** 14 **EXHIBIT R2(E) TRUE COPY OF THE PHOTOGRAPH SHOWING THE EVIDENCE OF THE EXISTENCE OF CULVERT.** **EXHIBIT R2(F)** **THE PHOTOGRAPH SHOWING THE FACT THAT UPON THE CULVERT SEEN IN EXHIBIT R2(D) PHOTOGRAPH, CONSTRUCTION HAS BEEN MADE UNAUTHORIZEDLY WITHOUT ANY VALID PERMIT BY THE WRIT PETITIONER.** **EXHIBIT R2(G) TRUE COPY OF THE MINUTES F THE MEETING DATED.10.11.2022.** **EXHIBIT R2(H) TRUE COPY OF THE ABOVE COMMUNICATION DATED 24.01.2023.** **EXHIBIT R2(I) TRUE PHOTOCOPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY ON 14.07.2022.** **EXHIBIT R4(A) TRUE COPY OF COMMUNICATION DATED 21/04/2022 ISSUED BY 2ND RESPONDENT** **EXHIBIT R4(B) TRUE COPY OF COMMUNICATION DATED 7/06/2022 ISSUED BY THE 4TH RESPONDENT EXHIBIT R4(C) TRUE COPY OF COMMUNICATION DATED 6/09/2022 ISSUED BY THE 2ND RESPONDENT EXHIBIT R4(D) TRUE COPY OF COMMUNICATION DATED 1/11/2022 ISSUED BY DISTRICT COLLECTOR, MALAPURAM**