Ashraf M and Others v. Thamarassery Grama Panchayat and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ## **`WEDNESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944`** ## **`WP(C) NO. 30609 OF 2021`** ## **`WRIT PETITIONERS:`** - `1 ASHRAF M,AGED 47 YEARS S/O. MUHAMMED, MUNDAPURATHU VEEDU, UNNIKULAM P.O, THAMARASSERY, KOZHIKODE 673 574.` - `2 E.C.SUBAIR, AGED 46 YEARS S/O.ASSAYIN KUTTY HAJI, KACHERIKUNNUMMAL VEEDU, KODUVALLI P.O, KOZHIKODE 673 572.` - `3 MUHAMMED, AGED 64 YEARS S/O. MUNDAPURRAT HASSAN, KALLUVETTU, KUZHIKALLU VEEDU, UNNIKULAM P.O, KOZHIKODE 673 574.` ``` BY ADVS. KRISHNA PRASAD. S SINDHU S KAMATH SWAPNA S.K. ROHINI NAIR ``` ## **`RESPONDENTS:`** - `1 THAMARASSERY GRAMAPANCHAYAT,REPRESENTED BY ITS SECRETARY, O/O. VILLAGE PANCHAYAT, THAMARASSERY P.O, KOZHIKODE 673 573.` - `2 THE SECRETARY, THAMARASSERY GRAMAPANCHAYAT, THAMARASSERY P.O, KOZHIKODE 673 573.` ``` 3THE PRESIDENT, THAMARASSERY GRAMA PANCHAYAT, THAMARASSERY P.O, KOZHIKODE 673 573. ``` ``` 4STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001 ``` ``` BY ADVS. VINOD SINGH CHERIYAN T.M.KHALID K.P.SUSMITHA SURYA BINOY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C) No.30609 of 2021. ## **JUDGMENT** **th Dated this the 10 day of January, 2023 .** The petitioners submitted an application for building permit before the 2[nd] respondent, the Secretary of the Panchayat on 13.06.2019 as evident from Ext.P4 receipt. The 2[nd] respondent, by Ext.R2(a) letter, pointed out certain defects in the application and the petitioners cured those defects and resubmitted the application on 05.12.2019 as evident from Ext.P5 receipt. The petitioners state that the 2[nd] respondent did not communicate any order on the above said application. Accordingly the petitioners submitted Ext.P7 request dated 04.03.2020 before the 1[st] respondent Panchayat for permit. The 1[st] respondent Panchayat neither approved nor disapproved the building permit within 30 days of submission of Ext. P7 request. The petitioners, 3 W.P.(C) No.30609 of 2021. therefore, contend that they have secured a deemed permit in terms of Rule 14 (2) of the Kerala Panchayat Building Rules, 2019 (hereinafter referred to as the ‘Rules' for short). The petitioners thereafter submitted Ext.P8 letter dated 08.06.2020 informing the 2[nd] respondent that they are commencing the construction on the basis of deemed permit. Ext. P8 was duly acknowledged by the 2[nd] respondent. 2. While so, the 2[nd] respondent issued Ext.P9 communication dated 12.04.2021 cancelling the application of the petitioners for building permit stating that the construction is not in accordance with the provisions of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as the ‘Act’ for short) and the Rules. 3. The petitioners contend that, the rejection of the application for building permit after thirty days from Ext.P7 request before the Village Panchayat has no 4 W.P.(C) No.30609 of 2021. consequence when rejection of the application was not communicated to them within 30 days of Ext.P7 request. Accordingly the petitioners pray for direction to quash Ext.P9 and declare that the petitioner is entitled to proceed with the construction on the basis of deemed permit. 4. A counter affidavit and an additional counter affidavit are filed by the respondents wherein it is contended that the petitioners have been informed about the defects on time and that the proposed building construction is in contravention with the provisions of the Act and the Rules and therefore the petitioner cannot claim deemed permit under Rule 14 of the Rules. 5. Heard Sri.Krishna Prasad, the learned Counsel for the petitioners, Sri. Vinod Singh Cheriyan, the learned counsel for the respondents 1 to 3 and Smt.Surya Binoy, the learned Senior Government Pleader for the 4[th] respondent. 5 ## W.P.(C) No.30609 of 2021. 6. Interpreting the objects behind the provisions of Section 236 (3) of the Act, the Full Bench of this Court in **Abdul Kharim and Another v. Pazhayakunummel Grama Panchayat and Another [2018 (5) KHC 643]** , held that the local authority will have to act promptly on an application for license or permit and an applicant shall not be denied of his fundamental right to effectuate business or such other activities on account of the inert attitude of a local authority. The Full Bench observed that the very fixation of the outer limit is to uphold the fundamental rights of the citizens. In **Aniyeri Satyan v. Triprangottoor Grama Panchayat and another [2018 (5) KHC 580]** , this Court held that if the application for license is not considered during the period prescribed for the same and no orders are communicated within that period, either granting or rejecting the license, the Panchayat cannot exercise jurisdiction to reject the same at a later occasion. The petitioners 6 W.P.(C) No.30609 of 2021. submitted application for building permit before the 2[nd] respondent on 13.06.2019 and resubmitted the same on 05.12.2019. The 2[nd] respondent did not communicate any orders on the said application till the expiry of 30 days from the date of re-submission. The petitioners, accordingly, submitted Ext.P7 request before the Panchayat Committee on 04.03.2020. However, the 1[st] respondent neither approved nor disapproved the building permit within 30 days of submission of Ext.P7 request. Accordingly, the petitioners have secured a valid deemed permit with effect from 04.04.2020 in terms of Section 235K (2) of the Act read with Rule 14 (2) of the Rules. Ext.P9 communication dated 12.04.2021 cancelling the application for building permit has no consequence. It is so declared. 7. Accordingly, this writ petition is allowed declaring that the petitioners have secured a valid deemed building permit with effect from 04.04.2020 under 7 W.P.(C) No.30609 of 2021. Section 235K (2) of the Act read with Rule 14 (2) of the Rules. There will be a direction to the 2nd respondent to issue building permit in paper form to the petitioners within a period of 10 days from the date of receipt of a copy of this judgment. However, it is made clear that the entitlement of the petitioners for deemed building permit by the operation of Section 235 K (2) and Rule 14 (2) of the Rules will not stand in the way of the 2[nd] respondent exercising the powers to revoke the permit if it is satisfied that there is violation of the provisions of the Act and Rules or there exist other valid grounds for revocation. Sd/- **MURALI PURUSHOTHAMAN JUDGE** Raj 10.01.2023. 8 W.P.(C) No.30609 of 2021. ## **`APPENDIX OF WP(C) 30609/2021`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 09.04.2021.` - `Exhibit P2 A TRUE COPY OF TAX REMITTED RECEIPT DATED 09.04.2021.` - `Exhibit P3 A TRUE COPY OF TAX REMITTED RECEIPT DATED 09.04.2021.` - `Exhibit P4 A TRUE COPY OF THE RECEIPT OF THE APPLICATION FOR BUILDING PERMIT DATED 13.06.2019.` - `Exhibit P5 A TRUE COPY OF THE RECEIPT OF PERMIT APPLICATION DATED 05.12.2019.` - `Exhibit P6 A TRUE COPY OF THE RECEIPT FROM 1ST RESPONDENT DATED 30.01.2020.` - `Exhibit P7 A TRUE COPY OF THE LETTER SUBMITTED TO 3RD RESPONDENT ALONG WITH RECEIPT DATED 04.03.2020.` - `Exhibit P8 A TRUE COPY OF THE COMMUNICATION SENT TO THE 1ST RESPONDENT DATED 08.06.2020.` - `Exhibit P9 A TRUE COPY OF THE COMMUNICATION/ORDER BY THE 1ST RESPONDENT DATED 12.04.2021.` - `RESPONDENT EXHIBITS` - `Exhibit R2(b) Copy of the letter dated 08-06-2020 sent by the petitioners to the 1st Respondent Panchayath` 9 ## W.P.(C) No.30609 of 2021. ``` Exhibit R2(c) ``` ``` Copy of the letter No: 81-5042119 dated 12-04-2021 sent by the 1st Respondent Panchayath to the petitioners ``` ``` PETITIONER EXHIBITS Exhibit P10A TRUE COPY OF THE PHOTOGRAPH OF THE OFFICIAL NOTE DATED 03-10-2019 BY THE ASSISTANT ENGINEER. ```