K.H. Abdul Rasheed v. Thirumittacode Grama Panchayath & Secretary, Thirumittacode Grama Panchayath

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** **WP(C).No.27619 OF 2019(B)** ## **PETITIONER/S:** **K.H.ABDUL RASHEED AGED 49 YEARS** **RESIDING AT KOTTAPPURATH HOUSE, PATTAMBI P.O., PATTAMBI TALUK, PALAKKAD-679303.** **BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.A.HAROON RASHEED** ## **RESPONDENT/S:** **1 THIRUMITTACODE GRAMA PANCHAYATH, CHATHANNUR PO, PALAKKAD-679535, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY THIRUMITTACODE GRAMA PANAHCYATH, CHATHANNUR PO, PALAKKAD-679 535.** **BY ADV. SRI.T.A.RAJAGOPALAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.27619 OF 2019(B)** **2** ## **J U D G M E N T** The petitioner has approached this Court impugning Ext.P13 communication issued by the Secretary of the respondent Grama Panchayat, asserting that it is illegal and unlawful, since it cancels an earlier building permit granted to him, namely Ext.P11, without following the imperative procedure under Rule 18 of the Kerala Panchayat Building Rules (KPB Rules for short). 2. According to the petitioner, he had approached the Secretary of the Panchayat seeking building permit for commencement of a 'Drinking Water Purification Plant and Packaging Unit' but that, since no action was taken thereon, he approached the District Level Adalath, and issued Ext.P10 order, which was also signed by the said Secretary. He says that based on Ext.P10 decision, Ext.P11 building permit had been granted on 30.07.2019; but that on 09.08.2019, Ext.P13 was issued revoking the said permit solely for the reason that the Secretary has been so ordered by the President of the Panchayat Committee to do so. The petitioner contends that Ext.P13 is **WP(C).No.27619 OF 2019(B)** **3** illegal, unlawful and untenable and consequentially prays that the same be set aside. 3. The learned Standing Counsel appearing for the respondent Panchayat submits that Ext.P13 order has been issued because Ext.P11 permit had been granted by the Secretary without authority. He says that the petitioner is attempting to start a Drinking Water Unit, without obtaining necessary sanctions under Sections 232 and 233 of the Kerala Panchayat Raj Act and therefore, that any construction made by the petitioner on the strength of the said permit can only be found to be illegal and unlawful. He, therefore, prays that this writ petition be dismissed. 4. In response, Sri.Jaiju Babu, learned Senior Counsel instructed by Sri.A.Haroon Rasheed, learned counsel appearing for the petitioner, vehemently submits that the allegations now made by the learned counsel for the Panchayat are completely untenable going by Exts.P3 and P5 decisions taken by the District Level Appraisal Committee, under the aegis of the Single Window Clearance Board. He says that neither the Panchayat nor any objector has, until now, challenged these decisions and **WP(C).No.27619 OF 2019(B)** **4** therefore, that their contentions regarding the proposed Unit may not be countenanced by this Court. The learned Senior Counsel says that apart from this, the question as to whether construction of the building should be permitted or otherwise is not dependent on the decision of the Panchayat as regards the Trade Licence to be issued to the proposed Unit and therefore, that since the Secretary had issued Ext.P11 permit on the strength of the decisions taken by the District Adalath, he would obtain no powers to cancel the same, particularly, under Rule 18 of the KPB Rules. 5. The learned Senior Counsel further submitted, pointing to Rule 18 of the KPB Rules, that the Secretary can revoke a permit validly issued only if the applicant violates any of the conditions prescribed in the said permit or if the construction is carried on in deviation of the approved plan or if there is any violation of the Rule or Act thereunder. He asserts that the Secretary does not have any such case in Ext.P13 nor does he say that the permit was issued on the basis of any misrepresentation of facts or law by the petitioner; and consequently that, going by **Silvy v. Koovappady Grama** **WP(C).No.27619 OF 2019(B)** **5** **Panchayat [2019 (1) KLJ 98],** the Panchayat could not have intervened into the jurisdiction of the Secretary by directing him to cancel Ext.P11, especially since this is contrary to the provisions of Section 185B of the Kerala Panchayat Raj Act. 6. Sri.Jaiju Babu, learned Senior Counsel, also relies on the judgment of this Court in **Shunmughan v. Vandazhy Grama Panchayat [2016 (1) KLT 601]** to assert that if the Panchayat has any objection against commencement of the Unit, then they must approach the Single Window Clearance Board appropriately; and that, in this case, this is more so because, they have chosen not to challenge Exts.P3 and P5 decisions until now. The learned Senior Counsel, therefore, prays that this writ petition be allowed and Ext.P13 be set aside. 7. Sri.D.Sreekumar, learned counsel, submits that he is appearing for the party respondents in a connected matter, namely W.P.(C)No.3497/2019, but accuses the petitioner for not having impleaded any of his clients in this writ petition. He says that his clients are vitally interested in any decision to be taken by the Panchayat, particularly because, if the petitioner is allowed to start a Drinking Water Unit in the area, they would be **WP(C).No.27619 OF 2019(B)** **6** detrimentally affected on account of severe scarcity of water and that commercial exploitation of ground water resources by the petitioner would cause irreparable prejudice to them. He, therefore, prays that if this Court is so inclined, his clients may also be directed to be heard before any further decision is taken by any of the competent Authorities. 8. When I consider the afore submissions, it is ineluctable that Ext.P11 permit had been issued by the Secretary invoking the provisions of the KPB Rules. The petitioner is stated to have started construction and that the same is now midway. That being so, any action by the Secretary to cancel the permit could have been done in law only after hearing the petitioner and ascertaining whether any of the criterion, as are statutorily mandated, had been found attracted in the present case. Going by Ext.P13, it is unfortunate that the Secretary does not mention anything with respect to the imperative criterion under Rule 18 of the KPB Rules but merely says that he is constrained to do so under the dictation of the Panchayat Committee and in particular, its President. In fact, the said order has been issued by the Secretary clearly recording that it is under the orders of **WP(C).No.27619 OF 2019(B)** **7** the President of the Panchayat, but is totally silent as to whether Ext.P11 permit had been issued under a misrepresentation of facts or whether the petitioner had violated any of the conditions therein. I am, therefore, of the view that Ext.13 cannot find favour in law and will require to be set aside. In the afore perspective, I order this writ petition and set aside Ext.P13; and consequentially, direct the Secretary of the Panchayat to hear the petitioner, as well as the party respondents in W.P.(C)No.3497/2019, and then take a final decision as to whether any action under Rule 18 of the KPB Rules is warranted in this case, after adverting to the ratio of the afore cited judgments of this Court. The above exercise shall be completed by the Secretary as expeditiously as is possible but not later than two weeks from the date of receipt of a copy of this judgment and to enable him to expeditiously comply with the directions herein, I direct the petitioner and the party respondents in W.P.(C)No.3497/2019 to mark appearance in the office of the Secretary at 11.00 AM on 16.11.2019; on which day, the Secretary will hear them and issue orders within the time frame granted herein. **WP(C).No.27619 OF 2019(B)** **8** I make it clear that I have only dealt with the validity of Ext.P13 order in this judgment and that the Panchayat or any other objectors are at liberty to invoke their respective remedies against Exts.P3 and P5 subject to the laws and prescriptions of Limitation. **SD/-** **DEVAN RAMACHANDRAN JUDGE** rp **WP(C).No.27619 OF 2019(B)** **9** ## **APPENDIX OF WP(C) 27619/2019** |**PETITIONER'S/S EXHIBITS:**|| |---|---| |**EXHIBIT P1**|**TRUE COPY OF THE POSSESSION CERTIFICATE VIDE**| ||**NO.30210410 DATED 6.2.2018 ISSUED BY THE VILLAGE**| ||**OFFICER.**| |**EXHIBIT P2**|**TRUE COPY OF THE CERTIFICATE VIDE**| ||**NO.TIO/OTP/137/2018 DATED 1.6.2018 ISSUED BY THE**| ||**ASSISTANT DISTRICT INDUSTRIES OFFICER TO THE**| ||**PETITIONER.**| |**EXHIBIT P3**|**TRUE COPY OF THE PERMISSION VIDE**| ||**NO.GW.P.K/1276/16 DATED 25.6.2018 OF THE GROUND**| ||**WATER DEPARTMENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE JUDGMENT DATED 18.6.2018 IN WPC**| ||**NO.19731/2018 OF THIS HON'BLE COURT.**| |**EXHIBIT P5**|**TRUE COPY OF THE DECISION OF THE COMMITTEE HELD**| ||**IN THE CHAMBER OF THE DISTRICT COLLECTOR ON**| ||**30.10.2018.**| |**EXHIBIT P6**|**TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT OF**| ||**APPLICATION OF BUILDING PERMIT OF THE PETITIONER**| ||**ON 27.11.2018 AND RECEIPT SHOWING THE REMITTANCE**| ||**OF RS.20.**| |**EXHIBIT P7**|**TRUE COPY OF THE DEFECTS NOTE PREPARED BY THE**| ||**ASSISTANT ENGINEER, LSGD DATED 18.12.2018.**| |**EXHIBIT P8**|**TRUE COPY OF THE NO OBJECTION CERTIFICATE VIDE**| ||**NO.B-92/2019 DATED 8.1.2019 ISSUED BY THE**| ||**DISTRICT FIRE OFFICER ALONG WITH COVERING LETTER**| ||**DATED 10.1.2019 AND ACKNOWLEDGMENT DATED**| ||**10.1.2019.**| |**EXHIBIT P9**|**TRUE COPY OF THE COMMUNICATION VIDE NO.A7-**| ||**6717/2019 DATED 29.1.2019 ISSUED BY THE IST**| ||**RESPONDENT TO THE PETITIONER.**| |**EXHIBIT P10**|**TRUE COPY OF THE ORDER PASSED BY THE DISTRICT**| ||**LEVEL ADALATH VIDE NO.G2-8091/2019.**| |**EXHIBIT P11**|**TRUE COPY OF THE BUILDING PERMIT NO.A4-**| ||**BA(214473)/2019 DATED 13.12.2018 ISSUED BY THE**| ||**PANCHAYATH ON 30.7.2019.**| **WP(C).No.27619 OF 2019(B)** **10** **EXHIBIT P12** **EXHIBIT P13** **EXHIBIT P14** **TRUE COPY OF THE PHOTOGRAPHS OF THE CONSTRUCTIONS OF THE PETITIONER'S UNIT.** **TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 9.8.2019, VIDE NO.A4/4579/2018.** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 21.8.2019 BEFROE THE PANCHAYATH COMMITTEE.** **WP(C).No.27619 OF 2019(B)** **11**