C. D. Sukumaran Nair v. Secretary, Uzhavoor Grama Panchayath; The Asst. Executive Engineer, P.W.D. Roads Section, Kuravilangad; Uzhavoor Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** **WP(C).No. 7966 of 2010 (U) ---------------------------** **PETITIONER:** **-----------** **C.D.SUKUMARAN NAIR, S/O.PADMANABHAN NAIR, ADVOCATE, KORATTIYIL HOUSE, KURIANADU POST, PALA.** **BY ADV. SRI.MATHEW JOHN (K)** **RESPONDENTS:** **------------** **1. THE SECRETARY, UZHAVOOR GRAMA PANCHAYATH, UZHAVOOR POST, KOTTAYAM - 686 634.** **2. THE ASST. EXECUTIVE ENGINEER, P.W.D.ROADS SECTION, KURAVILANGADU.** **3. THE UZHAVOOR GRAMA PANCHAYATH, (THE APPELLATE AUTHORITY UNDER SECTION 276 OF THE KERALA PANCHAYATH RAJ ACT, 1994 (REPRESENTED BY ITS PRESIDENT, UZHAVOOR POST, KOTTAYAM.** **R1 & R3 BY ADV. SRI.J.JULIAN XAVIER R2 BY GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2017 ALONG WITH WPC.17289/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** **WP(C).No. 7966 of 2010 (U) --------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT. P1 : A TRUE COPY OF THE LEASE DEED DATED 20.8.2004 EXECUTED BY THE PETITIONER’S WIFE.** - **EXT. P2 : A TRUE COPY OF THE LEASE DEED DATED 31.10.2005 DO.DO.** - **EXT. P3 : A TRUE COPY OF THE PARTITION DEED DATED 30.3.2007. EXT. P4 : A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 29.9.2008.** - **EXT. P5 : A TRUE COPY OF THE REPLY DATED 10.11.2008 BY THE 1ST RESPONDENT.** - **EXT. P6 : A TRUE COPY OF THE APPLICATION AND THE ACCOMPANIMENTS BY THE PETITIONER DATED 24.11.2008.** - **EXT. P7 : A TRUE COPY OF THE ORDER DATED 24.1.2009 BY THE 1ST RESPONDENT.** - **EXT. P8 : A TRUE COPY OF THE SAID LETTER PRODUCED BY THE 1ST RESPONDENT IN THE COUNTER AFFIDAVIT, DATED 20.1.2009.** - **EXT. P9 : A TRUE COPY OF THE SAID JUDGMENT DATED 25.11.2009 IN WPC.NO.22261 OF 2009.** - **EXT. P10: A TRUE COPY OF THE PETITION DATED 15.12.2009 BY THE PETITIONER.** - **EXT. P11: A TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 24.12.2009.** - **EXT. P12: A TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER DATED 21.1.2010.** - **EXT. P13: A TRUE COPY OF THE PROCEEDINGS DATED 24.2.2010 BY THE 3RD RESPONDENT.** - **EXT. P14: A TRUE COPY OF THE APPLICATION DATED 4.3.2010 BY THE PETITIONER.** - **EXT. P15: A TRUE COPY OF THE LETTER DATED 24.11.2008.** - **EXT. P16: A TRUE COPY OF THE NOTICE DATED 19.6.2009 ISSUED BY THE SPL. TAHSILDAR, CHANGANACHERRY.** ## **RESPONDENTS' EXHIBITS:** - **EXT.R1A: TRUE COPY OF THE RELEVANT PORTION OF THE ASSESSMENT REGISTER.** **--2--** **--2--** **WP(C).No. 7966 of 2010 (U) --------------------------** **EXT.R1B: TRUE COPY OF THE PETITIONER DATED 29.9.2008 FILED BY THE PETITIONER. EXT.R1C: TRUE COPY OF THE REPORT DATED 10.11.2008. EXT.R1D: TRUE COPY OF THE LETTER DATED 10.11.2008. EXT.R1E: TRUE COPY OF THE LETTER DECISION NO.8 DATED 30.1.2010 ISSUED BY THE PANCHAYAT. EXT.R1F: TRUE COPY OF THE PETITION DATED 9.2.2010 FILED BY THE 1ST RESPONDENT. EXT.R1G: TRUE COPY OF THE DECISION NO.9 DATED 16.2.2010. EXT.R1H: TRUE COPY OF THE REPLY DATED 15.3.2010 ISSUED BY THE 1ST RESPONDENT.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017 ............................................................. Dated this the 4[th] day of October, 2017 J U D G M E N T** Since the issue involved in both these writ petitions is the same they are taken up for consideration together and disposed by this common judgment. For the sake of convenience, the reference to the facts and the exhibits is from W.P.(C).No.7966 of 2010. 2. The petitioner's wife owned 1.60 Ares of land within the territorial limits of the 1[st] respondent Panchayat. The said land abutted the M.C Road, and on the said land, there stood a building with five rooms and a lean-to. The building was assigned five numbers, namely, 2/15, and 2/16 to 19 and the individual rooms were let out to tenants and also assessed to property tax at the applicable rates. It would appear that, in the year 2003, consequent to a proposal that was mooted for widening the road, a portion of the property belonging to the petitioner's wife, together with the portion of the building that stood on the said property, fell -2- ## **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017** within the alignment area proposed for the widening of the road. The petitioner, therefore, demolished the portion of the building, which came within the alignment of the road widening scheme, and thereafter, strengthened the remaining portion of the building and put up two additional floors to the structure that remained after the initial demolition works. The rooms in the additional floors, as also the remaining rooms of the old building, were thereafter let out to tenants. The petitioner's wife, who was the owner of the building, died in February, 2007 and, subsequent to a partition that was effected between the legal heirs of the deceased wife, the ownership of the building came to be vested in the petitioner. The petitioner, therefore, preferred Ext.P4 application before the respondent Panchayat seeking a change of the ownership of the building in the records of the Panchayat. To the said application dated 29.09.2008, the petitioner was served with Ext.P5 reply dated 10.11.2008, which indicated that, inasmuch as the building that now stood in the property had no resemblance to the earlier building that was described by the petitioner, and further, there was no permission produced by the petitioner in terms of the Kerala Municipality Building Rules to justify the -3- ## **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017** additional construction effected by the petitioner, the application of the petitioner for change of ownership could not be acted upon. Faced with the said situation, the petitioner preferred Ext.P6 application for regularisation of the alleged unauthorised construction. The said application was rejected by the respondent Panchayat through Ext.P7 communication dated 24.01.2009 stating that the construction put up by the petitioner was within the prohibited distance from the Highway, and further, the necessary No Objection Certificate (NOC) from the Highway Authority in terms of the Kerala Highway Protection Act had not been obtained by the petitioner prior to putting up the construction. The request of the petitioner for regularisation, as also for assignment of building numbers, was rejected. The petitioner impugned Ext.P7 communication through W.P(C).No.22261 of 2009 before this Court. By Ext.P9 judgment, the said writ petition was allowed following the decision of this Court in **Mohammed v. Chirakandam Grama Panchayath (2008 (3) KLT 300)** , which dealt with the circumstances under which the NOC from the Highway Authority could be insisted upon, and by quashing Ext.P7 communication, and directing the -4- ## **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017** respondent Panchayat to pass fresh orders in the matter after hearing the petitioner and in accordance with law. 3. Immediately on receipt of Ext.P9 judgment, the petitioner approached the respondent Panchayat once again through Ext.P10 application dated 15.12.2009 seeking an allotment of numbers to the building put up by the petitioner. The petitioner was then served with Ext.P11 order dated 24.12.2009 of the Secretary of the Panchayat stating that the request of the petitioner could not be acceded to since, according to the respondents, the construction was in violation of Section 220(b) of the Kerala Panchayat Raj Act, which mandated the maintenance, by the building, of a prescribed distance from the road. Aggrieved by Ext.P11 order of the Secretary, the petitioner preferred an appeal before the appellate authority, namely, the Committee of the Panchayat. By proceedings dated 30.01.2010, the said Committee allowed the appeal preferred by the petitioner and directed the Secretary to number the building put up by the petitioner. Thereafter, the petitioner was served with Ext.P13 communication dated 24.02.2010 from the Secretary of the Panchayat, which -5- **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017** informed the petitioner that the petitioner's building could not be numbered since there was a violation of provisions of Section 220(b) of the Panchayat Raj Act. In W.P.(C).No.7966 of 2010, the petitioner impugns Exts.P11 and P13 orders, inter alia, on the ground that, it was not open for the Secretary of the Panchayat to go behind the proceedings dated 30.01.2010 of the appellate authority that found in favour of the petitioner, more so when there was no further appeal or revision preferred by the Secretary against the order of the appellate authority. 4. In W.P.(C).No.17289 of 2017, the challenge is to Ext.P15 series, Ext.P16 series and Ext.P17 series of demand notices issued by the respondent Panchayat, demanding property tax at higher rates from the petitioner for various periods, on the ground that, the petitioner would have to pay a higher rates of property tax since the building put up by the petitioner was an unauthorised construction. The challenge in the writ petition is premised on the contentions raised in W.P.(C).No.7966 of 2010, and it is the case of the learned counsel for the petitioner that, if the impugned orders in W.P.(C).No.7966 of 2010 are found to be legally unsustainable, -6- ## **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017** then the petitioner would be entitled to the benefits flowing from such a finding and would be justified in seeking a quashing of the impugned demand notices in W.P.(C).No.17289 of 2017 as well. 5. Counter affidavits have been filed on behalf of the respondent Panchayat in both the writ petitions. The stand of the respondent Panchayat in W.P.(C).No.7966 of 2010 is essentially that, although the Appeal Committee had allowed the appeal preferred by the petitioner through the proceedings dated 30.01.2010 (produced as Ext.R1(e) along with the counter affidavit of the Panchayat), the Secretary of the Panchayat had, in exercise of the powers vested under Rule 29 (3) of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995, sought for a review of the decision of the Committee, on the ground that, the decision was not in accordance with law, and thereupon, the Committee had through proceedings dated 16.02.2010 (produced as Ext.R1(g) along with the counter affidavit) modified the earlier decision and held that the Secretary could grant the building numbers to the petitioner, if the petitioner complied with the statutory provision for the same. It is stated that Ext.P13 -7- **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017** communication that is impugned in W.P.(C).No.7966 of 2010 is the result of the exercise by the Secretary of the said power pursuant to Ext.R1(g) proceedings of the Committee of the Panchayat. The case of the petitioner on merits is met with the contention that, the building put up by the petitioner, in place of the earlier building that belong to the petitioner's wife, is one that offends the provisions of Section 220 (b) of the Panchayat Raj Act, and therefore, cannot be numbered. The same objection also forms the basis of the counter affidavit filed in W.P.(C).No.17289 of 2017 to contend that the building put up by the petitioner is an unauthorised construction, and therefore, to justify the demand notices that were served on the petitioner, which are impugned by the petitioner in the said writ petition. 6. I have heard the learned counsel appearing for the petitioner in both the writ petitions and the learned Standing counsel for the Panchayat in both the writ petitions. 7. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find from a -8- ## **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017** perusal of the orders impugned in W.P.(C).No.7966 of 2010 that, pursuant to Ext.P9 judgment of this Court in an earlier round of litigation, the application submitted by the petitioner for numbering of the building in question was directed to be considered by the respondent Panchayat in accordance with law. Although the Secretary of the Panchayat in obedience to the said direction proceeded to hold that the numbers could not be assigned to the building put up by the petitioner for the reason that the petitioner had constructed the building in violation of Section 220 (b) of the Panchayat Raj Act, the said decision of the Secretary was impugned by the petitioner in an appeal preferred under Section 276 of the Panchayat Raj Act. The Committee that met to consider the appeal preferred by the petitioner found, through the proceedings dated 30.01.2010, that the petitioner was entitled to get a number for the building put up by him primarily on the finding that, the new construction was essentially a fortification of the earlier construction, together with the addition of two floors to the existing construction. While it may be a fact that there was a review of the said decision at the instance of the Secretary of the Panchayat, I am of the view that the -9- ## **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017** provisions of Rule 29 (3) of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995 would not come to the aid of the Secretary of the Panchayat in contending that he had the power to insist on a review of a decision of the Panchayat Committee passed in an appeal preferred in terms of Section 276 of the Kerala Panchayat Raj Act, 1994. It is trite that when an appellate authority passes an order, in an appeal preferred against an order under the Panchayat Raj Act, in the absence of a specific power of review granted to the appellate authority, the appellate authority cannot review its own orders. The power of review of an appellate order is one that has to be specifically provided under the statute and, in the instant case, there is none. The power conferred on the Secretary, under R. 29(3) referred above, to seek a review can only be seen as referring to the power of the Secretary to request the Committee to review a decision taken in the ordinary course of administration of the Panchayat. The provisions of Rule 29 (3) can have no application in a case where the decision of the Panchayat Committee is one that is taken in an appeal preferred in accordance with the provisions of Section 276 of the Panchayat Raj Act, I am therefore of the view that Ext.P13 -10- ## **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017** order of the Secretary, to the extent it goes contrary to the directions of the Panchayat Committee in the proceedings dated 30.01.2010 cannot be legally sustained and, therefore, I quash the said order of the Secretary. Inasmuch as Ext.P11 order of the Secretary was the subject matter of the appeals before the Panchayat Committee, and by the proceedings dated 30.01.2010, the Committee had taken a decision to direct the Secretary to allot numbers to the building of the petitioner, the proceedings of the Panchayat Committee must be seen as setting aside Ext.P11 order of the Secretary to that extent. Accordingly, I am of the view that W.P.(C).No.7966 of 2010 must necessarily succeed. I, accordingly, allow W.P.(C).No.7966 of 2010 by quashing Ext.P11 and P13 orders, and making the interim order dated 03.06.2010 passed by this Court, directing the Panchayat to provisionally number the petitioners building, absolute. As regards W.P. (C).No.17289 of 2017, in the light of my findings in W.P. (C).No.7966 of 2010, I am of the view that the said writ petition must also succeed, and accordingly, I allow the said writ petition by quashing Ext.15 series, Ext.P16 series and Ext.P17 series of demand notices, which proceed on the basis that the building put -11- ## **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017** up by the petitioner is an unauthorised construction. The quashing of the said demand notices will now mean that the petitioner would be liable to pay only the property tax as applicable for an authorised construction within the limits of the respondent Panchayat. Taking note of the submission of the learned counsel for the petitioner that the amounts demanded in Ext.P15 series, Ext.P16 series and Ext.P17 series of demand notices have already been paid prior to the writ petition, I make it clear that the excess amounts collected from the petitioner shall either be adjusted towards the future dues of the petitioner towards property tax or refunded to the petitioner as the case may be. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/04.10.17 -12- **W.P.(C).No.7966 of 2010 & W.P.(C).No.17289 of 2017**