Nasarudheen and Ayshumma v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN FRIDAY, THE 21ST DAY OF NOVEMBER 2014/30TH KARTHIKA, 1936 WP(C).No. 28374 of 2014 (V) ---------------------------- PETITIONERS: --------------- 1. NASARUDHEEN, S/O.KUNJU MUHAMMED, CHALLAYIL HOUSE, KALLOOR.P.O VADAKKEKAD VAZHI, THRISSUR DISTRICT. 2. AYSGHUMMA, W/O.KUNJU MUHAMMED, CHALLAYIL HOUSE, KALLOOR.P.O VADAKKEKAD VAZHI, THRISSUR DISTRICT. BY ADV. SRI.D.KISHORE RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE VADAKKEKAD GRAMA PANCHAYATH, REPRESENTED BY ITS PRESIDENT, VADAKKEKAD CHAVAKKAD TALUK, THRISSUR DISTRICT-679562. 3. THE SECRETARY, (SPECIAL GRADE), VADAKKEKAD GRAMA PANCHAYATH VADAKKEKAD, CHAVAKKAD TALUK, THRISSUR DISTRICT-679562. 4. THE REVENUE DIVISIONAL OFFICER, THRISSUR-679001. 5.THE VILLAGE OFFICER VADAKKEKAD VILLAGE OFFICE THRISSUR DISTRICT 6.THE AGRICULTURAL OFFICER KRISHI BHAVAN, VADAKKEKAD P.O. CHAVAKKAD TALUK THRISSUR DISTRICT – 679 562 R2 & 3 BY ADV. SRI.P.SANTHOSH (PODUVAL) R2 & 3 BY ADV. SMT.R.RAJITHA R2 & 3 BY ADV. SRI.K.D.SREEVISAKH R BY SR. GOVERNMENT PLEADER SHRI. THOMAS JOHN AMBOOKEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28374 of 2014 (V) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 COPY OF THE RELEVANT EXTRACT OF THE DATA BANK REGISTER PERTAINING TO THE PETITIONERS' PROPERTY EXT.P2 COPY OF THE BUILDING PERMIT DATED 10.3.2010 ISSUED BY THE 3RD RESPONDENT EXT.P2(A) COPY OF THE APPROVED PLAN ISSUED BY THE 2ND RESPONDENT EXT.P3 COPY OF THE POSSESSION CERTIFICATE DATED 11.9.2014 ISSUED BY THE 5TH RESPONDENT IN FAVOUR OF THE IST PETITIONER EXT.P4 COPY OF THE JUDGMENT DATED 19.1.2012 IN WP(C)1531 OF 2012 OF THIS HONOURABLE COURT. EXT.P5 COPY OF THE PROCEEDINGS NO.D1/6775/2011 DTD 18.2.2012 OF THE 4TH RESPONDENT EXT.P6 COPY OF THE APPLLICATION FOR THE ISSUANCE OF OCCUPANCY CETIFICATE ALONG WITH THE PRIOR FOR REGULARIZATION OF ANAUTHORISED CONSTRUCTION EXT.P6(A) COPY OF THE SITE PLAN ALONG WITH THE PLAN FOR REGULARIZATION OF CONSTRUCTION EXT.P7 COPY OF THE RECEIPT EVIDENCING THE SUBMISSION OF EXT.P6 AND P6(A) EXT.P8 COPY OF THE PROCEEDINGS NO.B4-5357/14 DATED 18.10.2014 OF THE 3RD RESPONDENT EXT.P9 COPY OF THE CIRCULAR NO.45846/RA1/08/LSGD DATED 31.7.2008 ISSUED BY THE IST RESPONDENT EXT.P10 COPY OF THE JUDGMENT DATED 18.12.2013 IN W.P(C)23668/2013. RESPONDENT(S)' EXHIBITS NIL ------------------------- JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN,J. ------------------------------W.P(C) NO. 28374 OF 2014 ---------------------------------Dated this the 21[st ] November, 2014. ## JUDGMENT The petitioners have made a construction acting on the strength of Ext.P2 building permit and Ext.P2(a) approved plan. The construction is of a residential building in survey No: 167/4 of Vadakkekad village within the limits of the second respondent Panchayat. However, the construction has exceeded the area sanctioned for the building. Therefore, they submitted an application for regularisation of the construction. Exts.P6 and P6(a) are the applications. However, their applications have been rejected by Ext.P8. Ext.P8 has been issued on the basis of Ext.P9 circular issued by the first respondent. 2. According to Adv.D.Kishore who appears for the petitioners, Ext.P8 is unsustainable and liable to be set aside WPC 28374/2014 2 for the reason that, the power of the Panchayat to consider an application for regularisation cannot be restricted or fettered by the issue of a circular like Ext.P9 which does not have the force of a statutory enactment. The power of the Panchayat has to be exercised in accordance with the stipulations contained in the Kerala Panchayat Raj Act, 1994 (the 'Act' for short) as well as the Kerala Panchayat Building Rules, 2011 (the 'Rules' for short). It is also pointed out by the learned counsel that, this Court had by Ext.P4 judgment directed the fourth respondent to conduct an enquiry for the purpose of ascertaining the nature of the land owned by the petitioner. Pursuant to the judgment, with notice to the petitioner Ext.P5 proceedings have been issued by the fourth respondent. The counsel places specific reliance on the finding of the fourth respondent in page 5 that the land of the petitioner does not fall within the definition of either paddy land or wet land contained in Sections 2(xii) and 2(xviii) of Act 28/2008. Inasmuch as the petitioners' property is neither paddy nor wet WPC 28374/2014 3 land it is contended that Ext.P9 circular has no application. The counsel for the petitioners draws support for the above proposition for the dictum laid down by a Division Bench of this Court in Aishabeevi v. Superintendent of Police [2014(3) KLT 1078]. The counsel for the petitioners therefore seeks the issue of appropriate directions setting aside Ext.P8. 3. Adv.Santhosh P.Poduval appears for respondents 2 and 3. A counter affidavit has been filed on behalf of the said respondents. It is pointed out by the counsel that, in the light of Ext.P9 circular issued by the Director of Panchayats it is not possible for the Panchayat to consider the application for regularisation submitted by the petitioners otherwise than in accordance with the stipulations contained therein. It is for the said reason that, Ext.P8 has been issued rejecting the applications of the petitioners. 4. Section 234W of the Act confers power on the third respondent to regularise a construction. A similar power has been conferred by Rule 134 of the Rules, which is WPC 28374/2014 4 ## extracted hereunder for convenience of reference. “134. Power of the Secretary to regularise certain constructions.--The Secretary shall have the power to regularise construction or reconstruction addition or alteration of any building or digging of any well or telecommunication tower or any structure or land development or any work, for which permission of the Secretary is necessary under this rule commenced, being carried on completed without obtaining approved plan or in deviation of the approved plan: Provided that such construction or reconstruction or addition or alteration of any building or digging of any well or telecommunication tower or any structure or land development or any such work shall not be in violation of any of the provisions of the Act or these rules. Provided further that such power shall not relieve the Secretary of his responsibility in detecting and preventing such work and in taking other actions as per these rules. Provided also that where the construction WPC 28374/2014 5 or work was commenced, being carried on or completed after the statutory period specified in these rules, such construction or work shall be considered as duly permitted and not one requiring regularization.” The above power having been statutorily conferred on the second respondent, has to be exercised in accordance with the stipulations contained therein. Ext.P9 circular has been issued under the provisions of Act 28/2008. The said circular can have application only to lands that are subject matter of the provisions of the said enactment. The petitioners' property has been found by the fourth respondent to be a land that is neither a paddy land or wet land in terms of the definitions contained in the said enactment. Therefore, neither the provisions of Act 28/2008 nor Ext.P9 circular can have application to the land of the petitioners. In view of the above, the rejection of the applications for regularisation submitted by the petitioners by Ext.P8 cannot be sustained. WPC 28374/2014 6 For the above reasons, this writ petition is allowed. Ext.P8 is set aside. The third respondent shall consider Exts.P6 and P6(a) de hors the circular Ext.P9 and shall pass appropriate orders thereon, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment. Sd/K. SURENDRA MOHAN Judge jj /True copy/ WPC 28374/2014 7