Gopalakrishnan Nair Gokulam v. Velloor Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 23RD DAY OF JANUARY 2017/3RD MAGHA, 1938** ## **WP(C).No. 28183 of 2014 (W)** **----------------------------** **PETITIONER(S): -------------** **GOPALAKRISHNAN NAIR GOKULAM, MEVELLOOR, KOTTAYAM.** **BY ADV. SRI.P.P.JACOB** **RESPONDENT(S):** **--------------** ## **1. VELLOOR GRAMA PANCHAYATH** **VELLOOR, KOTTAYAM-686 50, REPRESENTED BY ITS SECRETARY.** ## **2. THE TAHSILDAR** **TALUK OFFICE, VAIKOM, KOTTAYAM, PINL:686 501.** **3. THE ASSISTANT ENGINEER** **PUBLIC WORKS DEPARTMENT, ROAD DIVISION, THALAYOLAPARAMBU, KOTTAYAM, PIN:686 141.** **Addl. 4. SHAJIHAN,** **PALAKKAVYPPEL HOUSE, VELLOOR, KOTTAYAM, PIN-686501. (ADDL.R4 IMPLEADED AS PER ORDER DATED 27.05.2015 IN IA NO.6464/15)** **Addl. 5. THE DISTRICT COLLECTOR, KOTTAYAM.** **(ADDL.R5 SUO MOTU IMPLEADED AS PER ORDER DATED 26.09.16)** **R1 BY ADV. SRI.SAJI KURIACHAN R ADDL4 BY ADV. SRI.JOHNSON ALLESE R2 BY ADV. GOVERNMENT PLEADER SRI.MANU RAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-01-2017, ALONG WITH W.P.(C).NO.5292/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 28183 of 2014 (W) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1: TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT DATED 21.3.2012 ISSUED BY VELLOOR VILLAGE OFFICE.** **EXHIBIT P2: TRUE PHOTOCOPY OF THE BUILDING PERMIT AND PLAN ISSUED BY THE FIRST RESPONDENT DATED 8.6.2009.** **EXHIBIT P3: TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY FIRST RESPONDENT DATED 28.8.2014.** **EXHIBIT P4: TRUE PHOTOCOPY OF THE LETTER ISSUED BY SURVEY SUPERINTENDENT, KOTTAYAM TO THE PETITIONER DATED 29.9.2014.** **EXHIBIT P5: TRUE PHOTOCOPY OF THE JUDGMENT IN WPC 31240/2012 DATED 27.3.2013.** **EXHIBHIT P6: TRUE PHOTOCOPY OF THE LETTER ISSUED BY FIRST RESPONDENT TO THE SECOND RESPONDENT DATED 19.9.2014.** **EXHIBIT P7: TRUE PHOTOCOPY OF THE LETTER ISSUED BY FIRST RESPONDENT TO THE THIRD RESPONDENT DATED 19.9.2014.** **EXHIBIT P8: TRUE PHOTOCOPY OF THE LETTER ISSUED BY PETITIONER TO THE SECOND RESPONDENT DATED 13.10.2014.** **EXHIBIT P9: TRUE PHOTOCOPY OF THE LETTER ISSUED BY FIRST RESPONDENT TO THE PETITIONER DATED 24.9.2014.** **EXHIBIT P10: TRUE COPY OF THE SAID LETTER FILED BY THE SHAJAHAN BEFORE THE FIRST RESPONDENT DATED 26.2.2015** **EXHIBIT P11: TRUE COPY OF THE CONSENT LETTER ISSUED BY THE PETITIONER DATED 26.02.2015 BEFORE THE FIRST RESPONDENT.** **RESPONDENT(S)' EXHIBITS -----------------------** ## **EXHIBIT R2(a): TRUE COPY OF THE SKETCH** **//TRUE COPY//** **P.A.TO JUDGE** **sm** ## **A.K.JAYASANKARAN NAMBIAR, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **W.P.(C) Nos.28183 of 2014 & 5292 of 2016** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd ] day of January, 2017 ## **JUDGMENT** As the issue involved in both these writ petitions is the same, they are taken up together for consideration, and disposed by this common judgment. For the sake of convenience, the reference to facts and exhibits is from W.P.(C) No.5292 of 2016. 2. The petitioner in W.P.(C).No.5292/2016 is the owner of 2.83 Ares of landed property in Re.Sy.No.637/3 of Vellor Village situated on the side of the Vettikkattumukku-Vellor road. The petitioner purchased the property from one Gopalakrishnan Nair, who is the petitioner in W.P.(C).No.28183/2014. The said Gopalakrishnan Nair had approached this Court through the aforementioned writ petition, aggrieved by the refusal on the part of the respondent Panchayath to number a building, that was constructed by the said Gopalakrishnan Nair. At the time of Sri.Gopalakrishnan Nair approaching this Court, the construction of the building had been completed only up to the ground floor and the numbering was sought in respect of the said floor. Through interim orders passed in the said writ petition, the ground floor of W.P.(c).Nos. 28183 of 2014 & 5292 of 2016 : 2 : the building was provisionally numbered and later on, the said Gopalakrishnan Nair was also given permission to transfer the property in question to the petitioner in W.P.(C).No.5292/2016 and appropriate directions were issued to the Registering Authorities to register the said transaction in the land register. The proceedings have, thereafter, been carried on by the petitioner in W.P.(C). No.5292/2016, who now appears to have gone ahead with the construction and completed two additional floors to the building, and now seeks a numbering of the said Floors, as also a license from the respondent Panchayath to carry on business in the said building. During the pendency of the writ petition, and by virtue of an interim order dated 21.10.2016, this Court directed the petitioner's building to be provisionally numbered and to consider the application preferred by the petitioner for license, during the pendency of the writ petition and subject to the result of the writ petition. It is the case of the petitioner herein that, pursuant to the interim order, numbers have been allotted to the first floor and the second floor of the building as well. The application preferred by the petitioner for license, produced as Ext.P14 along with I.A.No.917 of 2017, has not however been considered by the respondent Panchayath, till date. W.P.(c).Nos. 28183 of 2014 & 5292 of 2016 : 3 : 2. I have heard the learned counsel for the petitioner, the learned standing counsel for the respondent Panchayath and the learned Government Pleader for the official respondents in both the writ petitions. 3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, both the writ petitions pertain to the same building and W.P.(C).No.28183/2014 was preferred by the erstwhile owner of the building seeking a direction to the respondent Panchayath to number the ground floor of the building, that was then constructed. Pursuant to the interim order granted by this Court, the ground floor of the building was numbered, and thereafter, the said Gopalakrishnan Nair transferred the building to the petitioner in W.P.(C).No.5292/2016, who has in turn constructed two additional floors, which were also numbered provisionally pursuant to the directions of this Court. The crux of the objection of the respondent Panchayath, in relation to the constructions effected by the petitioner in W.P.(C).No.5292/2016 and his predecessor in interest, is that the construction in question is not beyond the distance of 3 meters from the road, and therefore, in violation of the provisions of Section 222 of the Kerala Panchayath Raj W.P.(c).Nos. 28183 of 2014 & 5292 of 2016 : 4 : Act 1994. To ascertain whether the building constructed by the petitioner was in fact beyond the distance of 3 meters from the edge of the road or not, a reference has to be made to the Taluk Survey Records and, in particular, the relevant sketch pertaining to the property as available in the said office. Through Ext.P3 judgment, that is produced by the petitioner in W.P.(C).No.5292/2016, I notice that in respect of an adjacent property, where a measurement had to be done from the edge of the road to the property of the petitioner therein, this Court found that it was the stand of the Tahsildar that the survey records in respect of the area in question were not available in the Taluk Surveyor Office or in the Central Survey office, and therefore, the Tahsildar had expressed his helplessness to give clarifications with regard to the distance of the building from the edge of the road. Taking note of the said situation, this Court had directed the Secretary of the Panchayath to pass appropriate orders on the application preferred by the petitioners therein, after seeking the assistance of the Tahsildar to find out whether there was any trespass into the 'puramboke' land as alleged. The construction activities in relation to the buildings were thereafter directed to be proceeded with in accordance with the building permit obtained by the petitioner therein. Taking cue from the said judgment, that has already been W.P.(c).Nos. 28183 of 2014 & 5292 of 2016 : 5 : passed by this Court in connection with an adjacent property to that of the petitioner herein, and finding that, in the instant case the construction of the building is now complete in respect of three floors and this Court had provisionally directed the numbering of the various floors in the building, during the pendency of these writ petitions, I am of the view that these writ petitions can now be disposed with the following directions: (i) The Secretary of the Panchayath shall consider and pass orders on Ext.P14 application preferred by the petitioner in W.P.(C). No.5292/2016 for grant of license for carrying on business activities in the premises in question. In this connection, it is made clear that if the respondent Panchayath has not issued any order or direction to the petitioner within the period of one month specified in Section 236(3) of the Kerala Panchayath Raj Act 1994, then the petitioner shall be seen as the beneficiary of the deeming provision envisaged therein and the Secretary shall forthwith issue a license in physical format to the petitioner as contemplated in the judgment of the Division Bench of this Court in **Sudhakaran v. Pallichal Grama Panchayath - [2016 (2) KLT 175]** . W.P.(c).Nos. 28183 of 2014 & 5292 of 2016 : 6 : (ii) If, on the other hand, the Panchayath has issued a notice within the period of one month from the date of receipt of Ext.P14 application, then the Secretary shall, after seeking the assistance from the Tahsildar, and the Taluk Surveyor concerned, who has jurisdiction in the matter, find out whether there is any trespass occasioned into 'Puramboku' land as alleged and thereafter, pass orders on Ext.P14 application preferred by the petitioner, within a period of two months from the date of receipt of a copy of this judgment. (iii) It is made clear that, if no orders are passed by the Secretary within the aforesaid period of two months, then it will be open to the petitioner to proceed with the business activities, by treating the license as having been granted for the said purposes. The interim orders passed by this Court with regard to the numbering of the building are made absolute. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** sm/