Padmakumar v. Thirupuram Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** ## **WP(C).No.13734 OF 2019(N)** ## **PETITIONER:** **PADMAKUMAR, AGED 57 YEARS, S/O.APPAVU NADAR, PATTATHIL VEEDU, PAZHAYAKADA, THIRUPURAM P.O., THIRUVANANTHAPURAM - 695 133. BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH** ## **RESPONDENTS:** - **1 THIRUPURAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THIRUPURAM P.O., THIRUVANANTHAPURAM - 695 133.** - **2 SECRETARY, THIRUPURAM GRAMA PANCHAYATH, THIRUPURAM P.O., THIRUVANANTHAPURAM - 695 133.** - **3 STATION HOUSE OFFICER, POOVAR POLICE STATION, POOVAR P.O., THIRUVANANTHAPURAM - 695 525.** - **4 RAVEENDRAN, S/O.BALAKRISHNAN NADAR, VARUVILA VEEDU, THIRUPURAM P.O., THIRUVANANTHAPURAM - 695 133.** - **5 MERCY, W/O.RAVEENDRAN, VARUVILA VEEDU, THIRUPURAM P.O., THIRUVANANTHAPURAM - 695 133, NOW VICE PRESIDENT, THIRUPURAM GRAMA PANCHAYAT.** **R1-2 BY ADV. SMT.K.S.SHARMILA R1-2 BY ADV. SRI.S.PREMJITH KUMAR R1-2 BY ADV. SRI.GOVIND PADMANAABHAN R3 BY GOVERNMENT PLEADER R4-5 BY ADV. SRI.N.MAHESH SMT MABLE C.KURIEN- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)13734 OF 2019 ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of 24.50 cents of land comprised in Survey No.265/17 of Thirupuram Village, covered by Ext.P1 sale deed No.574/1994 dated 27.06.1994 of Sub Registrar Office, Poovar, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat to renew Ext.P3 building permit for the construction of a compound wall and Ext.P4 approved plan, based on the application submitted by the petitioner on 12.12.2018, as evidenced by Ext.P5 receipt dated 12.12.2018, within a time frame to be fixed by this Court. The further relief sought for is a writ of mandamus commanding the 2[nd] respondent to issue consequential direction to the 3[rd] respondent Station House Officer to remove the obstruction, if any, caused by the 4[th] and 5[th] respondents to the construction of compound wall in terms of the renewed building permit and plan. 2. On 14.05.2019, when this writ petition came up for 3 WP(C)13734 OF 2019 admission, urgent notice by speed post was ordered to respondents 1, 2, 4 and 5. The learned Government Pleader took notice for the 3[rd] respondent. 3. A counter affidavit has been filed the 3[rd] respondent. 4. Heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2, the learned Government Pleader appearing for the 3[rd] respondent and also the learned counsel for respondents 4 and 5. 5. The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for renewal of Ext.P3 building permit for the construction of a compound wall. 6. In **Muhammad Rafeeque v. Irinjalakuda Municipality [CDJ 2019 Ker HC 620]** , this Court held that, in view of the provisions under sub-rule (2) of Rule 98 of the Kerala Municipality Building Rules, 1999, an application for renewal of permit to construct or reconstruct a wall or fence shall be submitted within the validity of the permit. If the application for renwal is not one filed within the validity of the permit, it cannot be directed to be considered, since any such direction would be contrary to the mandate of sub-rule (2) of Rule 98. Paragraphs 6 to 9 of the said decision read thus; 4 WP(C)13734 OF 2019 “6. Chapter XIV of the Kerala Municipality Building Rules, 1999 deals with wall and fence. Rule 96 deals with prohibition of commencement of work. As per Rule 96, the construction or reconstruction of any wall or fence of whatever height bounding or abutting on any public street or public property or public water course shall not be begun unless and until the Secretary has granted permission for execution of the work. As per the proviso to Rule 96, any gate or grill or door or other structure shall not open or project into the adjacent property or street. 7. Rule 97 deals with submission and disposal of application to construct or reconstruct a wall or fence. As per sub-rule (1) of Rule 97 an application to construct or reconstruct a wall or fence shall be submitted in white paper, typed or written in ink and affixed with necessary court fee stamp. As per sub-rule (2), application shall contain documents to prove ownership and a site plan. As per sub-rule (3), the site plan shall clearly show all the streets, paths, lanes abutting or leading to the plot and also description of the materials used for the work. As per sub-rule (4), application fee shall be paid as in Schedule -I. As per sub-rule (5), the Secretary shall, if convinced of the plan and genuineness of the ownership, issue permit not later than 30 days from the date of receipt of the application. As per sub-rule (5a), a wall or fence abutting a street junction shall be sufficiently splayed. As per sub-rule (6), the permit fee shall be as in Schedule - II. 8. Rule 98, which deals with period of permit and its 5 WP(C)13734 OF 2019 renewal. As per sub-rule (1) of Rule 98, the permit shall be valid for one year from the date of issue and may be renewed for further one year by filing an application in white paper, typed or written in ink and affixed with necessary court fee stamp. As per sub-rule (2) of Rule 98, the application for renewal shall be submitted within the valid period of the permit and the renewal fee shall be 50% of the permit fee. 9. In the instant case, the validity of Ext.P2 permit expired on 04.06.2016, much before the submission of Ext.P4 application dated 26.02.2019. Moreover, Ext.P4 application is not one submitted in the manner prescribed in sub-rule (1) of Rule 98, inasmuch as the requisite court fee stamp is not seen affixed on that application. When Ext.P4 application is not one filed within the period of validity of Ext.P2 building permit, that application cannot be directed to be considered by this Court, since any such direction would be contrary to the mandate of sub-rule (2) of Rule 98.” 7. The provisions under sub-rule (2) of Rule 98 of the Kerala Municipality Building Rules are _pari materia_ to the provisions under sub-rule (2) of Rule 89 of the Kerala Panchayat Building Rules, 2011. As per sub-rule (2) of Rule 89 of the Kerala Panchayat Building Rules, the application for renewal of a permit to construct or reconstruct any wall or fence shall be submitted within the valid period of the permit. 6 WP(C)13734 OF 2019 The validity of Ext.P3 permit expired on 16.10.2018. As evidenced by Ext.P5 receipt, the application made by the petitioner for renewal of Ext.P3 permit is one filed on 12.12.2018, which is submitted after the expiry of the period of validity of Ext.P3 permit. Any direction to consider that application for renewal would be contrary to the mandate of sub-rule (2) of Rule 89 of the Kerala Panchayat Building Rules. 8. The learned counsel for the petitioner would submit that the application for renewal of Ext.P3 permit has already been rejected by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat. Therefore, the petitioner shall file an application for fresh building permit for the construction of compound wall, after complying with the statutory requirements. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of, without prejudice to the right of the petitioner to file a fresh application for building permit for the construction of a compound wall, after complying with the statutory requirments and pursue the same in accordance with law. If any such application is received and the same is in order, the 2[nd] respondent 7 WP(C)13734 OF 2019 Secretary of the Grama Panchayat shall take an appropriate decision on that application, strictly in accordance with law, without any delay. Sd/- **ANIL K. NARENDRAN JUDGE** ## **yd** 8 WP(C)13734 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.574/1994 DATED 27/6/1994.** **EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 18/12/2018 PERTAINING TO HIS 24.50 CENTS OF PROPERTY IN RE-SURVEY NO.265/17 OF THIRUPURAM VILLAGE.** **EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT DATED 17/10/2017 FOR CONSTRUCTION OF COMPOUND WALL IN THE PROPERTY OF PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE APPROVED PLAN DATED 17/10/2017 WHICH IS VALID UPTO 16/10/2018.** - **EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 12/12/2018 AS REGARD SUBMISSION OF APPLICATION FOR RENEWAL OF PERMIT.** ## **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**