Chandran Nair v. Akathethara Grama Panchayat and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 23RD DAY OF JULY 2019 / 1ST SRAVANA, 1941** ## **WP(C).No.14182 of 2019** ## **PETITIONER:** **CHANDRAN NAIR, AGED 77 YEARS S/O.LATE RAMAN NAIR, KALA NIVAS, CHITHRA NAGAR, AKATHETHARA, PALAKKAD.** **BY ADVS. SRI.K.MOHANAKANNAN SMT.T.V.NEEMA** ## **RESPONDENTS:** |**1**|**AKATHETHARA GRAMA PANCHAYAT**| |---|---| ||**REPRESENTED BY ITS SECRETARY, PALAKKAD-678008.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**CIVIL STATION, PALAKKAD-678013.**| |**3**|**THE REVENUE DIVISIONAL OFFICER,**| ||**PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD-678001.**| |**4**|**K.V.YESODHA,**| ||**SREEKRISHNA VIHAR, CHITHRA NAGAR, HOUSE NO.2,**| ||**13/144, AKATHETHARA, PALAKKAD-678008.**| ||**BY ADVS.**| ||**SRI.U.BALAGANGADHARAN**| ||**SRI.K.RAVI (PARIYARATH)**| ||**SRI K.P. HARISH- SENIOR GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 14182 of 2019 ## **JUDGMENT** The petitioner, who is residing in House No.XIII/143 within the area of the 1[st] respondent Grama Panchayat, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P11 order dated 12.12.2018 of the Secretary of the 1[st] respondent Grama Panchayat and Ext.P15 order dated 29.04.2019 of the Tribunal for Local Self Government Institutions in Appeal No.4 of 2019 filed against Ext.P11 order. 2. On 22.05.2019, when this writ petition came up for admission, urgent notice on admission by special messenger was ordered to respondents 1 and 2, returnable by 27.05.2019. The learned Government Pleader took notice for respondents 2 and 3. 3. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent Grama Panchayat, the learned Government Pleader appearing for respondents 2 and 3 and also the learned counsel for the 4[th] respondent. 4. A counter affidavit has been filed by the 1[st] -3- W.P.(C). No. 14182 of 2019 respondent opposing the reliefs sought for in this writ petition. The 4[th] respondent has also filed a counter affidavit. 5. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P11 order dated 12.12.2018 of the Secretary of the 1[st] respondent Grama Panchayat, whereby the petitioner has been directed to demolish the soak pit constructed in his property, on the ground that it is in violation of the distance rule in Rule 85 of the Kerala Panchayat Building Rules, 2011 and also Ext.P15 order of the Tribunal dated 29.04.2019, whereby the appeal filed by the petitioner challenging Ext.P11 order stands rejected. 6. The dispute between the petitioner and the 4[th] respondent, who is his neighbour, is in relation to a soak pit constructed in the petitioner's house bearing No.XIII/143 within the jurisdiction of the 1[st] respondent Grama Panchayat. The 3[rd] respondent Revenue Divisional Officer by Ext.P4 proceedings dated 05.06.2018 directed the Secretary of the 1[st] respondent Grama Panchayat to take necessary steps to -4- W.P.(C). No. 14182 of 2019 demolish the soak pit in the petitioner's property, within 15 days, invoking the provisions under sub-section (1) of Section 235W of the Kerala Panchayat Raj Act, 1994 on the ground that it is situated within the prohibited distance from the well situated in the property of the 4[th] respondent. 7. The petitioner challenged Ext.P4 before this Court by filing W.P.(C)No.20748 of 2018, in which this Court granted Ext.P7 interim order dated 26.02.2018. The said writ petition was disposed of by Ext.P8 judgment dated 10.08.2018, whereby the 1[st] respondent Grama Panchayat was directed to finalise the proceedings within a time frame and it was ordered that, Ext.P7 interim order shall continue till then. The petitioner submitted Ext.P9 objection dated 29.09.2018 before the Secretary of the 1[st] respondent Grama Panchayat. After conducting a personal hearing, the Secretary of the Grama Panchayat issued Ext.P11 order dated 12.12.2018, whereby the petitioner was directed to demolish the soak pit, which is constructed only at a distance of 4.20 meters from the well in the property of the 4[th] respondent, as against the statutory -5- W.P.(C). No. 14182 of 2019 requirement of 7.5 meters of distance in Rule 85 of the Kerala Panchayat Building Rules, 2011. 8. Ext.P11 order was under challenge before this Court in W.P.(C)No.42233 of 2018. By Ext.P12 judgment dated 12.12.2018, W.P.(C)No.42233 of 2018 was disposed of by relegating the petitioner to avail the statutory remedy against Ext.P11 order, by approaching the Tribunal for Local Self Government Institutions. In order to enable the petitioner to move an appeal and stay petition before the Tribunal, coercive action pertaining to Ext.P11 order was directed to be suspended for a period of two weeks. The petitioner filed Ext.P13 appeal before the Tribunal, challenging Ext.P11 order, in which the Tribunal granted Ext.P14 interim order staying the operation of Ext.P11 order. The Tribunal by Ext.P15 order dated 29.04.2019 rejected Appeal No.4 of 2019 and the reasoning of the Tribunal, as contained in paragraphs 7 and 8 of the said order, read thus; “7. Point No.(i) The impugned order is produced as Ext.P1. The -6- W.P.(C). No. 14182 of 2019 impugned order is issued directing to demolish the soak pit. Learned counsel for the appellant submitted that the statutory procedure is not complied in issuing the impugned order. Learned counsel for the respondent submitted that the soak pit directed to be demolished is an unauthorised construction and therefore the impugned order is issued complying the procedure under Section 235 W of Panchayat Raj Act. According to the learned counsel for the appellant no permit is required for construction of soak pit and therefore the same is not an unauthorized construction. Construction for which permit is not necessary are mentioned in Rule 10 of Kerala Panchayat Building Rules. As per Rule 10 a soak pit is not exempted from obtaining permit to effect the construction. Therefore for constructing a soak pit, building permit from the Secretary of the Panchayat is to be obtained. Even the appellant is having no case that the soak pit is constructed after obtaining permit. Therefore the soak pit mentioned in the impugned order is an unauthorized construction liable to be demolished, if not regularized. It is to be noted that as per Rule 85 of Kerala Panchayat Building Rules no leach pit, soak pit, refuse pit, earth closet or septic tank shall be allowed or made within a distance of 7.5 meters radius from any existing well used for supply of water for human consumption or domestic -7- W.P.(C). No. 14182 of 2019 purpose or within 1.20 meters distance from the plot boundaries. According to the respondents the distance between the well and the soak pit is only 4.20 m and therefore the soak pit is constructed in violation of Rule 85 of Kerala Panchayat Building Rules. Even the appellant is having no case that the distance between the soak pit and the well of the appellant is more than 7.5m. Learned counsel for the appellant submitted that a soak pit can be constructed from a distance of 1.20m from the plot boundary and therefore there is no violation of Rule 85 of Kerala Panchayat Building Rules. But on going through Rule 85 of Kerala Panchayat Building Rules it can be seen that if there is no well the soak pit can be constructed 1.20m away from the plot boundary and if there exist a well the soak pit can be constructed only 7.5 m away from the well. Therefore the contention of the appellant that if the soak pit is constructed 1.20m away from the plot boundary even if there is well there is no violation of Rule 85 of Kerala Panchayat Building Rules cannot be accepted. Since the distance between the soak pit and the well of the 2[nd] respondent is only 4.20m the said soak pit is constructed in violation of Rule 85 of Kerala Panchayat Building Rules and therefore not regularizable also. Since the soak pit is constructed admittedly without permit and the same is not -8- W.P.(C). No. 14182 of 2019 regularizable it is an unauthorized construction liable to be demolished. 8. An unauthorized construction can be proceeded against as stipulated in Section 235W of Panchayat Raj Act. It is to be noted that the impugned order was passed consequent to the judgment of Hon'ble High Court in WP(C) 20748/2018 copy of which is available in page No.163 to 173 of the file produced by the respondent. In the said judgment in WP(C)20748/18 Hon'ble High Court has found that Ext.P2 therein is the notice directing demolition of soak pit as per Section 235W(1) of Panchayat Raj Act, 1994. Accordingly the Hon'ble High Court has given liberty to the appellant to file objection to Ext.P2 therein within 3 weeks from the date of receipt of copy of the judgment and the Panachayat was directed to finalize the proceedings in accordance with Section 235 within one month from the date of receipt of objection from the respondent. Even though Hon'ble High Court has granted liberty to file objection to the provisional order under Section 235 W(1) within 3 weeks the appellant has not filed an objection. Thereafter respondent issued hearing notice dated 5/11/18, copy of which is available in page No. 199 of the file produced by the respondent to which appellant submitted an adjournment application which is available in page No.211 of the -9- W.P.(C). No. 14182 of 2019 file produced by the respondent. Thereafter respondent issued notice dated 13/11/18 to appear for a hearing on 21/11/18. Admittedly, appellant was heard. It was thereafter the impugned order was issued directing demolition of the unauthorized construction. From this it can be seen that the impugned order was issued as directed by Hon'ble High Court in WP(C)20748/18 and also following the procedure stipulated under Section 235 W of Panchayat Raj Act. Therefore there is no need to interfere with the impugned order. This point is found accordingly. Feeling aggrieved by Ext.P15 order of the Tribunal, the petitioner is before this Court in this writ petition. 9. Before the Tribunal, one of the contentions raised by the petitioner was that no permit is required for the construction of a soak pit and as such the soak pit constructed in his property is not an unauthorised construction. After referring to the provisions under Rule 10 of the Kerala Panchayat Building Rules, the Tribunal found that construction of soak pit is not exempted under the said Rule and therefore, a building permit from the Secretary of the Grama Panchayat -10- W.P.(C). No. 14182 of 2019 has to be obtained before constructing a soak pit. Admittedly, the petitioner constructed the soak pit without obtaining a building permit. Therefore, as rightly found by the Tribunal in Ext.P15 order, it is an unauthorised construction, which is liable to be demolished, if not regularised. 10. In Ext.P15 order, the Tribunal noticed that the soak pit constructed by the petitioner is at a distance of only 4.20 meters from the well of the 4[th] respondent, as against the statutory requirement of 7.5 meters. Before the Tribunal, the petitioner had no case that the distance between the soak pit and the well of the 4[th] respondent is more than 7.5 meters. The petitioner contended that, as the soak pit in question is constructed at a distance of 1.20 meters from the plot boundary, there is no violation of Rule 85 of the Kerala Panchayat Building Rules. 11. Rule 85 of the Kerala Panchayat Building Rules deals with wells. As per Rule 85, no leach pit, sock pit, refuse pit, earth closet or septic tank shall be allowed or made within a distance of 7.5 metres radius from any existing well used for -11- ## W.P.(C). No. 14182 of 2019 supply of water for human consumption or domestic purpose or within 1.20 metres distance from the plot boundaries. ## 12. In **Commissioner of Agricultural Income Tax, Kerala v. Plantation Corporation of Kerala Ltd. [(2001)** **1 SCC 207]** , the Apex Court reiterated the broadly accepted principle of interpretation of statute that when there is no ambiguity in the statutory language resort to any interpretative process to unfold the legislative intend becomes impermissible; and the need for interpretation arises only when the words of the Statue are on their own terms ambivalent and do not manifest the intention of the legislature. 13. In **Raghunath Rai Bareja v. Punjab National Bank [(2007) 2 SCC 230]** , the Apex Court held that the first and foremost principle of interpretation of statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g., the mischief rule, purposive interpretation, etc., can only be resorted to when the plain words of the stature are ambiguous or lead to no -12- W.P.(C). No. 14182 of 2019 intelligible result or if read literally would nullify the very object of the statute. 14. A plain reading of provisions under Rule 85 of the Kerala Panchayat Building Rules would make it explicitly clear that construction of soak pit is not permissible within a distance of 7.5 meters radius from any existing well used for supply of water for human consumption or domestic purpose. As per Rule 85 construction of soak pit is also not permissible within 1.20 meters distance from the plot boundary. Therefore, a soak pit can be constructed within 1.20 meters of distance from the plot boundary, in case there is no existing well used for supply of water for human consumption or domestic purpose. 15. In view of the provisions under Rule 85 of the Kerala Panchayat Building Rules, the construction of a sock pit is not permissible within a distance of 7.5 meters radius from any existing well used for supply of water for human consumption or domestic purpose, even if such construction is 1.20 meters away from the plot boundary. Therefore, the Tribunal rightly -13- W.P.(C). No. 14182 of 2019 rejected the challenge made by the petitioner against Ext.P11 order. The reasoning of the Tribunal in Ext.P15 is neither perverse nor patently illegal, warranting interference in exercise of the writ jurisdiction under Article 226 of the Constitution of India. In the result, the writ petition fails, and the same is accordingly dismissed. No order as to costs. **Sd/-** **ANIL K.NARENDRAN JUDGE** das -14- W.P.(C). No. 14182 of 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE REPORT NO.PH-51/2017 OF THE HEALTH INSPECTOR, DATED 21.8.2017.** - **EXHIBIT P2 TRUE COPY OF THE NOTICE NO.A53090/18(1) ISSUED U/S.235W BY THE 1ST RESPONDENT DATED 13.4.2018.** - **EXHIBIT P3 TRUE COPY OF THE REPLY TO EXT. P2 FILED ON 27.4.2018 BY THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO.D.5884/2017 OF THE 3RD RESPONDENT DATED 5.6.2018 WITH POSTAL COVER.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14.6.2018.** **EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 22.3.2018 ISSUED BY THE HON'BLE OMBUDSMAN.** - **EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER IN WRIT PETITION.20748/2018 DATED 22.6.2018.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.20748/2018 DATED 10.8.2018.** **EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 29.9.2019.** **EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGES OF THE KERALA PANCHAYAT BUILDING RULES, RULE 85.** -15- W.P.(C). No. 14182 of 2019 **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 12.12.2018 BEARING A5-7953/2018.** **EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WPC.NO.42233/2018 DATED 21.12.2018.** **EXHIBIT P13 TRUE COPY OF THE STATUTORY APPEAL FILED BEFORE THE LOCAL SELF GOVERNMENT DEPARTMENT TRIBUNAL DATED 1.1.2019.** **EXHIBIT P14** **TRUE COPY OF THE ORDER DATED 4.1.2019 IN I.A.NO.8/2019 IN APPEAL NO.4/2019 OF LOCAL SELF GOVERNMENT DEPARTMENT TRIBUNAL, THIRUVANANTHAPURAM.** **EXHIBIT P15** **TRUE COPY OF THE ORDER OF THE LOCAL SELF GOVERNMENT DEPARTMENT TRIBUNAL DATED 29.4.2019 IN APPEAL NO.4/2019.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A TRUE COPY OF THE COMMUNICATION DATED 12.10.2017** **EXHIBIT R1 B TRUE COPY OF THE COMMUNICATION DATED 09.04.2018**