Anil Kumar v. Cheranalloor Grama Panchayat, Deputy Director of Panchayat, District Collector, State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 26TH DAY OF MAY 2015/5TH JYAISHTA, 1937** ## **WP(C).No. 9369 of 2012 (U)** ## **---------------------------** ## **PETITIONER :** **-----------------------** **ANIL KUMAR,** **S/O.RADHAKRISHNAN,AGED 45 YEARS, 39/1845 JYOTHY,PALARIVATTOM, REPRESENTED BY POWER OF ATTORNEY HOLDER R.RAVINDRAN PILLAI, S/O.RAMAN PILLAI, AGED 69 YEARS, RESIDING AT 35/1849 JYOTHY, PALARIVATTOM, KOCHI -682 025.** **BY ADVS.SRI.M.R.HARIRAJ SRI.R.SUSEELAN SRI.P.A.KUMARAN** **SMT.VINEETHA B. SRI.NIRMAL V NAIR SRI.ANISH JAIN SMT.M.A.JINSA MOL** ## **RESPONDENT(S):** **----------------------------** **1. CHERANALLOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, CHERANALLOOR, SOUTH CHITTOR, KOCHI -682 027.** ## **2. DEPUTY DIRECTOR OF PANCHAYAT,** **ERNAKULAM DISTRICT, KAKKANAD P.O, KOCHI- 682 030.** ## **3. THE DISTRICT COLLECTOR,** **COLLECTORATE, KAKKANAD P.O, KOCHI -682 030.** ## **4. STATE OF KERALA,** **REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM- 695 001.** **R1 BY ADV. SRI.S.SHANAVAS KHAN** **R2 TO R4 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-03-2015, THE COURT ON 26-05-2015 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.9369/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXHIBIT P1TRUE COPY OF THE BUILDING PLAN.** - **EXHIBIT P2TRUE COPY OF THE CERTIFICATE NO.C4/05 DATED 11.4.2005 ISSUED BY THE SECRETARY, CHERANALLOOR GRAMA PANCHAYAT.** - **EXHIBIT P3TRUE COPY OF THE GAZETTE NOTIFICATION OF G.O(MS) NO.150/2007/LSGD DATED 6.6.2007.** - **EXHIBIT P4TRUE COPY OF THE REPRESENTATION DATED 21.4.2008.** - **EXHIBIT P5TRUE COPY OF THE RECEIPT NO.12706 DATED 19.4.2008.** - **EXHIBIT P6TRUE COPY OF THE ORDER C-7/38/08-09 DATED 10.9.2008 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P7TRUE COPY OF THE ORDER IN IA 1120/2008 IN APPEAL NO.553/2008.** - **EXHIBIT P8TRUE COPY OF THE ORDER DATED 27.11.2008 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** - **EXHIBIT P9TRUE COPY OF THE APPLICATION DATED 16.3.2009.** - **EXHIBIT P10- TRUE COPY OF THE LETTER C-38/08-09 DATED 11.8.2009 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P11TRUE COPY OF THE LETTER NO. A3/2344/09K DIS. DATED 24.9.09.** - **EXHIBIT P12- TRUE COPY OF THE JUDGMENT DATED 5.1.2010 IN WP(C0 11/2010 ON THE FILES OF THIS HONOURABLE COURT.** - **EXHIBIT P13- TRUE COPY OF THE JUDGMENT DATED 6.4.2010 IN WA 256/2010 ON THE FILES OF THIS HONOURABLE COURT.** - **EXHIBIT P14- TRUE COPY OF THE ORDER NO.C7-38/08-09 DATED 1.7.2010 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P15- TRUE COPY OF THE DETAILED REPRESENTATION DATED 9.7.2010.** - **EXHIBIT P16- TRUE COPY OF THE LETTER A3/1571/11 DATED 15.11.2011 ISSUED BY THE SENIOR TOWN PLANNER, ERNAKULAM.** - **EXHIBIT P17- TRUE COPY OF THE ORDER NO.73658/RBI/2011/LSGD DATED 2.2.2012 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P18- TRUE COPY OF THE PETITIONER'S BUILDING FACING THE MUNDIYATH CROSS ROAD.** **2/-** **-2-** **WP(C).NO.9369/2012** **EXHIBIT P19- TRUE COPY OF THE HOUSE NO.572** **EXHIBIT P20- TRUE COPY OF THE PHOTOGRAPH OF HOUSE NO.C4-156-1** ## **RESPONDENTS' EXHIBITS AND ANNEXURES :** **ANNEX R1(A)- TRUE COPY OF THE G.O(MS).NO.149/98/LAD DATED 20/71998 INDICATING THE APPLICABILITY OF KERALA BUILDING RULES, 1984 TO CHERANALLOOR PANCHAYAT.** **/TRUE COPY/** **P.A.TO JUDGE** **sts** **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 9369 of 2012 -------------------------------------------------Dated this the 26[th] day of May, 2015** ## **J U D G M E N T** Aggrieved by the inaction on the part of the respondent panchayath in numbering the petitioner's building, he has come up before this Court with this writ petition. 2. The petitioner alleges that on 11.04.2005, an NOC was issued to the petitioner by the 1[st] respondent to construct a commercial building in Sy.No.160/1(33/6) of Cheranalloor Village in Cheranalloor Panchayath. He started construction in the year 2005 itself by laying foundation; and the structure was completed by 2006. On 06.06.2007, the Government of Kerala issued notification extending the provisions of the Kerala Municipality Building Rules, 1999 to the Village Panchayaths of Kerala. On 17.04.2008, the petitioner was issued with a show cause notice by the Secretary, Grama Panchayath, calling W.P.(C) No. 9369 of 2012 ..2.. for explanations for alleged violation of Rule 19 of the Kerala Municipal Rules, 1999. On 19.04.2008, the petitioner submitted an application for regularization. However, on 10.09.2008, the panchayath issued an order for demolishing the alleged unauthorized construction. He approached the Tribunal for Local Self Government Institutions against the demolition order and obtained an order of stay. The demolition order was later set aside by the Tribunal, as per order dated 25.11.2008, with liberty to the panchayath to initiate fresh proceedings if there is reason for doing so. On 16.03.2009, he made an application before the grama panchayath for numbering the building. The panchayath sought expert opinion of the District Town Planner for giving approval of the alleged unauthorized construction; and the District Town Planner opined that since NOC given by the panchayath is not in conformity with Building Rules, no approval could be given. However, no proceedings were issued. Though the petitioner approached this Court in WP(C) W.P.(C) No. 9369 of 2012 **==> picture [20 x 8] intentionally omitted <==** No.11/2010 aggrieved by the inaction of the respondent panchayath, the same was dismissed. The matter was taken in appeal in WA No.256/2010 by the petitioner, which was disposed of directing the 1[st] respondent to take a final decision within two months. The petitioner was also directed to make himself available for a hearing on 09.07.2010 or to submit a detailed representation. Accordingly, on 09.07.2010, he submitted a detailed representation. However, no decision was taken by the 1[st] respondent. Aggrieved by the delay, the petitioner submitted an application for regularization under Unauthorized Construction Rules. The same was dismissed by the 4[th] respondent on the ground that the construction was violative of Rule 25 of the Kerala Municipality Building Rules, 1999. It is with this background, the petitioner has come up before this Court. 3. In the counter affidavit filed by the respondent State, they contended that the construction made by the petitioner is in violation of Rule 25 of the Kerala W.P.(C) No. 9369 of 2012 ..4.. Municipal Building Rules; and it does not satisfy the regularization criteria No.3 as per appendix 1 of the Kerala Building (Regularization of Unauthorized Construction) Rules, 2010. 4. In the statement filed by the respondent panchayath, almost identical contentions were taken. It was contended that on an inspection made by the respondent panchayath, it was revealed that the petitioner has not provided sufficient set off distance as required by law; and therefore, Ext.P10 letter was issued to the District Town Planner requesting their views in the matter. By Ext.P11, it was informed that the building of the petitioner is not entitled for regularization; and thus, his application for regularization is rejected. 5. The petitioner has filed a detailed reply affidavit to the counter affidavit filed by the respondents. 6. Arguments have been heard. 7. The petitioner relies on Ext.P2 NOC dated 11.04.2005, on the basis of which, he has started the W.P.(C) No. 9369 of 2012 **==> picture [20 x 8] intentionally omitted <==** alleged construction. It was pointed out by the learned counsel for the petitioner that Ext.P2 stipulates only that the construction should be in compliance with para 220B of the Kerala Panchayath Raj Act, 1994 and subject to CRZ Rules and Regulations. The petitioner points out that he commenced the construction and completed the structure of the building prior to Ext.P3 notification. Thus, going by the express provisions of Order No.24136 (1)/R.A.1/07 dated 26.07.2007, the set back as stipulated under the provisions of the KMBR is not applicable to the building of the petitioner; so submitted the learned counsel for the petitioner. It was submitted that the respondents have, all along, refused regularization of the construction on the erroneous assumption that his building has to be in compliance with the provisions of the KMBR. According to the learned counsel for the petitioner, the impugned orders are in complete violation of the executive instructions in this regard. As rightly submitted by the learned counsel for the petitioner, W.P.(C) No. 9369 of 2012 ..6.. Ext.P3 does not stipulate that it has any retrospective effect. According to the petitioner, the construction commenced in the year 2005 and the structure was completed before the enforcement of the KMBR as per Ext.P3. 8. The learned counsel for the respondent panchayath invited my attention to Ext.R1(a) to substantiate that the Kerala Building Rules, 1984 is applicable to the Cheranalloor Panchayath from 1998 onwards. However, the Government, in the counter affidavit, states that the Kerala Municipality Building Rules, 1999, was made applicable to the panchayath only in 2006. These averments are inconsistent and therefore, unreliable. 9. The Kerala Building Rules, 1984, was superseded by the Kerala Municipality Building Rules, 1999 with effect from 01.10.1999. The said Rules apply to municipalities. Only Rules applicable to municipality can be made applicable to panchayath under Section 274. W.P.(C) No. 9369 of 2012 **==> picture [20 x 8] intentionally omitted <==** Therefore, as rightly pointed out by the learned counsel for the petitioner, the superseded Rules cannot apply to panchayath. There are no specific provisions in the KMBR saving the operation of notifications, orders made while the Kerala Building Rules was in force. In the absence of any such provision in the KMBR, Ext.R1(a) ceased to be operative with effect from 01.10.1999. The new Rules would be effective in the panchayath only with effect from the date, on which the Government, in exercise of its powers under Section 274 of the Kerala Panchayat Raj Act, 1994, extends the KMBR to the concerned panchayath. 10. The respondents could have substantiated that the KMBR was made applicable to the panchayath in 2006 itself. Even assuming that the KMBR was made applicable to the Cheranalloor Panchayath in 2006, the petitioner is also entitled to the benefits granted as per Order No.24136(1)/R.A. 1/07 dated 26.07.2007 issued by the 4[th] respondent, which clarified that the KMBR shall W.P.(C) No. 9369 of 2012 **==> picture [20 x 8] intentionally omitted <==** not be made applicable to buildings, the construction of which was completed, or the buildings, of which the construction had been commenced prior to the date of Ext.P3 notification. Therefore, the petitioner is entitled to similar benefits as he had obtained sanction and commenced construction much prior to the date, on which the KMBR is alleged to have been made applicable to the Cheranalloor panchayath. 11. The main contention raised by the respondent panchayath is that the petitioner's building does not have sufficient set off distance from the public road. It was pointed out by the learned counsel for the petitioner that the Mundiyath Cross Road is not a notified road. The set off distance of 3m as per Rule 26 of the KMBR is applicable only with respect to National Highways, State Highways and other roads notified by the municipality. This position has been clarified by this Court in **Soman - Pillai** v. **Mavelikkara Thamarakulam Grama Panchayath** [2008 (4) KLT 753]. It was submitted by the W.P.(C) No. 9369 of 2012 ..9.. learned counsel for the petitioner that there is an average distance of 1.87m between the petitioner's building and the Mundiyath Cross Road, which is having only 2.5m width. A photograph of the building of the petitioner facing the Mundiyath Cross Road is produced as Ext.P18. 12. The petitioner also pointed out that the panchayath has granted building numbers to other buildings, which have been constructed subsequent to 2005, wherein no distance has been set off from the building and the road. The petitioner has produced Ext.P19, which is the photograph of House No.572 of Ward No.3 of Cheranalloor Panchayath owned by one Mr.C.M.Basheer, situated adjacent to the Thycavu Road to Federal Bank. Ext.P20 is another photograph of House No.C4-156-1 situated in the Mundiyath Road without leaving any distance, which was constructed subsequent to 2008. On a consideration of the entire materials now placed on board, this Court is of the definite view that the W.P.(C) No. 9369 of 2012 **==> picture [26 x 8] intentionally omitted <==** objection raised by the respondent panchayath is not legally sustainable. In the result, the writ petition is allowed. - Ext.P17 is quashed. - The 1[st] respondent is directed to issue building number - and occupancy certificate to the petitioner's building constructed as per Ext.P1 plan. - Formal orders to this effect shall be issued within a - period of one month from the date of receipt of a copy of this judgment. Sd/- **A.V. RAMAKRISHNA PILLAI JUDGE** bka/-