Basheer v. Meenangadi Grama Panchayat & Secretary, Meenangadi Grama Panchayat; Addl.R3 (Suo Motu Impleaded)

W.P.(C)No.16947/2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 30[TH] DAY OF AUGUST 2022 / 8TH BHADRA, 1944** **WP(C) NO. 16947 OF 2021** ## **PETITIONER:** BASHEER AGED 59 YEARS S/O.ABDUL KAREEM, AMBALAPARAMBIL HOUSE, MEENANGADI, MEENANGADI P.O., WAYANAD DISTRICT-673591. BY ADVS. SRI MATHEW KURIAKOSE SRI J.KRISHNAKUMAR (ADOOR) SRI MONI GEORGE **RESPONDENTS:** 1 THE MEENANGADI GRAMA PANCHAYAT MEENANGADI GRAMA PANCHAYAT, MEENANGADI P.O., WAYANAD DISTRICT-673591. 2 THE SECRETARY MEENANGADI GRAMA PANCHAYAT, MEENANGADI P.O., WAYANAD DISTRICT-673591. **ADDL.R3.** THE ASSISTANT EXECUTIVE ENGINEER, P.W.D., ROADS DIVISION, WAYANAD. ADDL.R3 IS IMPLEADED SUO MOTU AS PER THE ORDER DATED 23.11.2021 IN WP(C) 16947/2021 BY ADVS. SRI C.JOSEPH JOHNY SRI JOHN JOSEPH VETTIKAD, SRI B.S.SYAMANTHAK, GOVT.PLEADER SRI EBIN MATHEW THIRUVAMBADYADV.COMMISSIONER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.3.2022, THE COURT ON 30.8.2022 DELIVERED THE FOLLOWING: W.P.(C)No.16947/2021 2 ## **T.R. RAVI, J.** **--------------------------------------------** W.P.(C)No.16947 of 2021 -------------------------------------------Dated this the 30[th] day of August, 2022 ## **JUDGMENT** The petitioner had constructed a single storeyed residential building in 4.05 Ares of property in Sy.No.591/1 of Purakkadi Village in Wayanad District coming within the jurisdiction of the 1[st] respondent Panchayat during early 2000. In 2015, he applied for and obtained Ext.P2 building permit for the construction of two upper floors for commercial purpose above the existing residential building. The permit was renewed in the year 2018. After completion of the construction, the petitioner submitted the completion plan to the 2[nd] respondent and requested for assignment of a building number for the two upper floors. The residential portion of the petitioner's building is situated below the road level. On 30.01.2001, the 2[nd] respondent issued Ext.P4 communication to the petitioner pointing out that a 3 Metre distance from the road to the building is not available and that the completion plan has been submitted excluding the first floor. According to the petitioner, Ext.P2 building permit was issued by the 2[nd] respondent after conducting a site inspection and the construction of the upper floors has been made on the existing residential building as an extension, meaning thereby that there is no change in the distance made due to the new constructions effected. W.P.(C)No.16947/2021 3 2. On 4.2.2022, after noticing the contention of the respondents that the construction was made after extending the wall of the cellar floor, which resulted in reducing the space between the road and the building, this Court appointed an Advocate Commissioner to verify the correctness of the contentions put forward by either side. The Advocate Commissioner inspected the properties and submitted a report on 23.2.2022. The Commissioner has reported that the cellar floor had been constructed almost 20 years ago and the petitioner and his family are residing in the cellar floor. It is stated that the first and second floors have been constructed for commercial purposes and each floor is having three shutters. The Commissioner has prepared sketches showing the lie of the building and the relevant measurements, which have been produced as Annexures C1 and C2, which also show the distance of the ground floor and the first floor from the Panamaram Meenangadi Road. 3. As per Annexure C2 sketch in the report, the northsouth measurement of the eastern side of the cellar floor is 9.15 Metres excluding the granite wall on the northern side and the north-south measurement of the eastern side of the cellar floor is 6.17 metres excluding the granite wall and 6.65 metres including the granite wall. The Commissioner has reported that he was not able to assess the width of the northern wall of the cellar floor, W.P.(C)No.16947/2021 4 since the wall is constructed with granite stones touching the building in the eastern and western sides of the building. The Assistant Executive Engineer who was present at the site has opined that the standard width of such walls for buildings is 20 centimeters. The above opinion does not appear to be correct. Going by the north-south measurement on the eastern side of the cellar floor the width of the granite wall is 0.48 metres (6.65mts – 6.17 mts). Further, the north-south measurement of the first floor is stated to be 9.45 metres on the western side and 6.55 metres on the eastern side. The difference of 0.30 metres in the eastern side measurement of the first floor and the cellar floor will suggest that the width of the northern granite wall is 0.30 metres. The difference in the western side measurement of the first floor and the cellar floor would suggest that the width of the granite wall on the western side is 0.38 metres (6.55 mts – 6.17 mts). Admittedly, the first floor is constructed over the granite wall and hence there will be an addition of the size of the granite wall also in the case of the first floor. It is evident from the report of the Commissioner that the opinion of the Assistant Engineer that normally granite walls of buildings are of a width of 0.20 metres cannot be correct so far as the building of the petitioner is concerned since the measurement appears to be 0.30 metres on the western side and 0.38 metres on the eastern side. The above W.P.(C)No.16947/2021 5 facts have also to be correlated with the finding of the Assistant Engineer in his report dated 17.9.2021 produced as Ext.R1(B), wherein the specific contention is that a granite pack of 0.50 metres has been made on the northern side of the granite wall of the cellar floor and thereafter the construction was made. The above report does not stand to reason. If the said report is taken as true, the total width of the granite wall with the alleged granite pack should be about 0.70 metres (assuming 0.20 metres is the normal width of the granite wall). Going by the report of the Commissioner, the total width of the granite wall can only be between 0.30 mts and 0.38 mts. In this context, it is worthwhile also to consider the photographs of the north-eastern corner of the cellar floor produced by the petitioner as Exts.P10 and P11, which negates such a possibility. On consideration of the facts reported by the Advocate Commissioner, and the other evidence on record, it can never be said that the construction was after extending the granite wall further by putting up a granite pack of 0.50 metres. 4. The respondents have no case that the ground floor was constructed violating the distance rule. Since the construction of the first floor cannot be said to be carried out after extending the northern granite wall of the ground floor, it is not possible to say that there is a violation of the distance rule, when it comes to the first floor. The construction was made after obtaining a building W.P.(C)No.16947/2021 6 permit. Annexure C3 sketch in the report of the Commissioner relating to the first floor shows that the distance from the tarred portion of the road to the building is 3.8 metres. It is also seen from the sketch that the untarred portion measures 1.4 metres (3.8 mts - 2.4mts). The width of the tarred road is shown to be 9.2 metres. It is also shown that including the untarred portion, the measurement is 12.9 metres from the compound wall of the petitioner’s building. Even though the width is shown as 12.9 metres in the report of the Advocate Commissioner, as per the statement filed by the additional 3rd respondent as directed by this Court on 1.12.2021, it is stated that the carriage way of the road, i.e., tarred portion is 5.5 metres and the right of way was 12.5 metres before starting the upgradation work of the road that was done during 2016-17. It is also stated that there has been no widening of the road. The above facts also will show that the reasoning adopted by the respondents is not correct. 5. Counsel for the petitioner has relied on the decision of this Court in **Muhammed Habibulla & Ors. v. Corporation of Cochin & Anr.** reported in **[2021 (3) KHC 201]** , wherein this Court had after referring to several other decisions, directed to ignore violations which are trivial in nature. This Court had referred to the decision of the Hon'ble Supreme Court in **Corporation of Calcutta v. Mulchand Agarwal** reported in W.P.(C)No.16947/2021 7 **[AIR 1956 SC 110]** , wherein the Hon'ble Supreme Court had held that “it must be remembered that building rules are enacted generally for the benefit of the public and where those Rules have been violated and proceedings are taken for an order for demolition of the buildings under Section 363, what has to be decided is whether the breaches are of a formal or a trivial character in which case the imposition of a fine might meet the requirements in the case or whether they are serious and likely to adversely affect the interests of the public, in which case it would be proper to pass an order of demolition.” Reference is also made to the judgment of a Division Bench of this Court **Narahari Rao v. State of Kerala & Ors.** reported in **[1999 KHC 36]** and the judgment of the Hon'ble Supreme Court in **M/s Rejatha Enterprises v. S.K.Sharma [AIR 1989 SC 86]** . Since on facts, I have already found that no violation as pointed out by the respondents exists, I am of the opinion that the said decisions can be a guideline for the respondents while taking further action on the basis of the directions that follow. 6. Ext.P4 issued by the 1[st] respondent stating that there is a violation of distance rule, is not legally and factually sustainable and liable to be set aside. So also, Ext.P6 communication from the 1[st] respondent to the petitioner stating that 3 Metre distance is not available from the road to the front of the building also is not W.P.(C)No.16947/2021 8 correct and the said finding is also liable to be set aside. Proceedings of the Secretary of the Panchayat produced as Ext.P8 wherein also the very same objection is stated as the reason for not allowing regularisation is liable to be set aside. Ext.P9 report of the Assistant Engineer, as already observed, is also bad insofar as it says that a granite packing of 0.50 Metres was made outside the existing granite wall of the cellar floor and the first floor was constructed above that. 7. The writ petition is hence allowed. Exts.P4, P6, P8 and P9 insofar as they find that the construction of the building was without complying with the rule relating to 3 Metre distance from the road is quashed. The 2nd respondent is directed to consider the application submitted by the petitioner for assignment of building number to the building constructed by the petitioner as per Ext.P2 permit, if the application is otherwise in order. Assignment of number shall not be rejected for the reason of want of 3 metres distance from the road. Necessary orders shall be issued within six weeks from the date of receipt of a copy of this judgment. Sd/- **T.R. RAVI JUDGE** dsn W.P.(C)No.16947/2021 9 ## APPENDIX ## **PETITIONER'S EXHIBITS** |EXHIBIT P1|TRUE COPY OF THE PROPERTY TAX RECEIPT DATED| |---|---| ||16.12.2004 ISSUED BY THE 1ST RESPONDENT| ||PANCHAYAT TO THE PETITIONER.| |EXHIBIT P2|TRUE COPY OF THE BUILDING PERMIT DATED| ||19.09.2015 ISSUED BY THE 2ND RESPONDENT TO| ||THE PETITIONER.| |EXHIBIT P3|PHOTOGRAPHS OF THE BUILDING OF THE| ||PETITIONER.| |EXHIBIT P4|TRUE COPY OF THE COMMUNICATION CUM ORDER| ||DATED 30.01.2021 ISSUED BY THE 2ND| ||RESPONDENT TO THE PETITIONER.| |EXHIBIT P5|TRUE COPY OF THE COMPLETION PLAN OF THE| ||BUILDING SUBMITTED BY THE PETITIONER TO THE| ||2ND RESPONDENT.| |EXHIBIT P6|TRUE COPY OF THE COMMUNICATION CUM ORDER| ||DATED 10.08.2021 ISSUED BY THE 2ND| ||RESPONDENT TO THE PETITIONER.| |EXHIBIT P7|TRUE COPY OF THE REPLY DATED 6/9/2021| ||SUBMITTED BY THE PETITIONER TO THE 2ND| ||RESPONDENT| |EXHIBIT P8|TRUE COPY OF THE ORDER DATED 23/9/2021| ||ISSUED BY THE 2ND RESPONDENT| |EXHIBIT P9|TRUE COPY OF THE REPORT DATED 17.09.2021 OF| ||THE ASST. ENGINEER, LOCAL SELF GOVT.| ||DEPARTMENT & ENGINEERING WING OF THE 1ST| ||RESPONDENT PANCHAYAT.| |EXHIBIT P10|PHOTOGRAPH OF THE EASTERN OUTER WALL OF THE| ||PETITIONER'S OLD RESIDENTIAL BUILDING| ||TOWARDS THE ROAD SIDE| |EXHIBIT P11|PHOTOGRAPH OF THE NORTH-EASTERN PORTION AT| ||ROAD LEVEL OF THE PETITIONER'S NEW| ||COMMERCIAL BUILDING| |EXHIBIT P12|PHOTOGRAPH OF THE NORTH-WESTERN PORTION AT| ||ROAD LEVEL OF THE PETITIONERS BUILDING| |**RESPONDENTS' EXHIBITS**|| |Exhibit R1(A)|TRUE COPY OF THE REPLY SUBMITTED BY THE| ||PETITIONER DATED 06-09-2021| |Exhibit R1(B)|TRUE COPY OF THE REPORT DATED 17-09-2021 OF| ||THE ASSISTANT ENGINEER, LOCAL SELF| W.P.(C)No.16947/2021 10 GOVERNMENT DEPARTMENT AND ENGINEERING WING OF, MEENANGADI GRAMA PANCHAYTH Exhibit R2(C) THE TRUE COPY OF THE ORDER NO.A3-1554/2020 DATED 23-09-2021 ISSUED BY THE 2ND RESPONDENT. ANNEXURE C1 TRUE COPY OF NOTICE OF INSPECTION DT.15.2.2022 ALONG WITH POSTAL RECEIPT FOR THE NOTICE ISSUED BY SPEED POST TO KAVITHA K. ASSISTANT EXECUTIVE ENGINEER ANNEXURE C2 A ROUGH SKETCH SHOWING THE SIDE MEASUREMENTS OF THE CELLAR FLOOR ANNEXURE C3 A ROUGH SKETCH SHOWING THE SIDE MEASUREMENTS OF THE 1ST FLOOR ALONG WITH THE ROAD