Ramanattukara Grama Panchayat v. V. M. Moideen

W. P. (C) No. 28430 of 2013 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 WP(C) NO. 28430 OF 2013** ## **PETITIONER/S:** - **1 RAMANATTUKARA GRAMA PANCHAYATH, REP.BY ITS SECRETARY** **RAMANATTUKARA P.O., KOZHIKODE DISTRICT - 673 633.** - **2 THE SECRETARY** **RAMANATTUKARA GRAMA PANCHAYATH, RAMANATTUKARA P.O., KOZHIKODE DISTRICT - 673 633.** **BY ADVS.** **SRI.R.RAMADAS SRI.T.SIVADASAN** ## **RESPONDENT/S:** **V.M.MOIDEEN** **S/O. MAMMED KUTTY, VADAKKE VEETIL, RAMANATTUKARA VILLAGE, KOZHIKODE DISTRICT, REPRESENTED BY HIS WIFE AND POWER OF ATTORNEY HOLDER, NADUKKANDI NAZEERA, ITTAPURAM HOUSE, P.O. FEROKE COLLEGE - 673 632.** **BY ADVS.** **SRI.K.D.BABU** **SRI.G.SANTHOSH KUMAR (P).** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. P. (C) No. 28430 of 2013 -2- ## **J U D G M E N T** This writ petition is filed by the Ramanattukara Grama Panchayat, seeking the following reliefs:- “a) Call for the records of the case leading upto Ext.P7 and to quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction; b) issue an interim order staying the operation of Ext.P7 order passed by the Hon'ble Tribunal for Local Self Government Institutions, Thiruvananthapuram in Appeal No. 444/2013, pending disposal of the above writ petition.” 2. Basically the writ petitioner is challenging Ext. P7 order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram in Appeal No. 444 of 2013, whereby the following observations and directions were made by the tribunal:- “12. As already stated the application for building permit was given on 24.12.2008. This application forms pages 1 to 4 of the file. There is an inspection report on page 4 of the file stating that the present structure does not have 3 meter set back from the road boundary. It was in view of the same only this application was rejected on an earlier occasion. From this report what could be made out is that on that date of inspection the building was W. P. (C) No. 28430 of 2013 -3- very much in existence. In paragraph 4 of the written statement it is stated as below:- "On inspection it was found that the existing building did not conform to the provisions of the Kerala Panchayat Building Rules, 2011." 13. From this averment also it is evident that when the inspection was conducted initially (the date of the inspection is not known) the building upon which addition or alteration was sought was very much in existence. 14. The direction in Appeal 1001/2012 was to consider the application in accordance with Rule 100 Kerala Municipality Building Rules. It is in order to get over the said direction the L.S.G.D. Engineer has reported an incorrect fact that the building upon which addition and alterations were sought is not in existence. It is to be noted that the application for permit was given in 2008 and there has been a long and unexplainable delay on the part of the respondents to consider the application. It is then possible that a portion of the building would have collapsed as stated by the appellant. 15. However, when the Secretary inspected the property for considering the application for the first time this building was in existence as already stated by me above. There is sufficient evidence forthcoming from the side of the appellant that this building is existing even now. 16. The appellant has produced certain photographs of the construction, as documents 11 to 14. These photographs are claimed to be in respect of the existing old building and the slight W. P. (C) No. 28430 of 2013 -4- construction effected therein on the basis of an alleged deemed permit. Such an averment by the appellant has not been specifically denied by the respondents. 17. Thus it is to be taken that these photographs are in respect of the building in question in this case. 18. These photographs would show that except the roof almost the entire structure of the building is still there. If so, the report of the Engineer referred in the impugned order that the old building was not found in existence is totally false, utter lie and incorrect. Giving such a report by the Engineer was totally illegal and relying on such a report also is illegal. The idea of the Secretary and the LSGD Engineer is only to put the appellant to great sufferings and to circumvent the provision of law and to take away the effect of the order of this Tribunal in Appeal 1001/2012. 19. These photographs would show an advertisement regarding 10[th] Annual Conference of an organization by name SSF, placed in front of the building referred in this case. in this advertisement board the dates of the conference are stated 26[th] to 28[th] April 2013. It is then possible to believe that this board/advertisement would have placed on this building in the first week of April 2015. The LSGD Engineer also appeared to have inspected the building on 2.4.2013. in view of the discussion on the photographs the date of the placing of the advertisement etc it is further proved that the LSGD Assistant Engineer was reporting before the Secretary an utter lie and the Secretary was accepting an utter lie just to put the appellant to W. P. (C) No. 28430 of 2013 -5- sufferings. I repeat that the said attitude of the Secretary is illegal for which he definitely could have been asked to remit compensation to the appellant. 20. Thus from the above evidence of the appellant and also in view of the fact that at the time of first inspection and at the time of the previous order this building was in existence the only conclusion that can be reached is the building is very much in existence even though a portion of the same including the roof is collapsed. This collapsing or getting demolition can only be because of the inaction on the part of the Secretary in not passing any proper orders for a long period of 5 years. For such collapse or demolition the appellant cannot be faulted but the Secretary can be faulted himself only. 21. Moreover, the definition of building given in Rule 2(e) the Kerala Municipality Building Rules includes every part of the building whether used for human habitation or not. The said definition is reproduced as below: “(l) 'building' means any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not and includes foundations, plinth, walls, floors, roofs, chimneys, plumbing and building services, verandah, balcony, cornice or projections, part of a building or anything affixed thereto or any wall enclosing or intended to enclose any land or space and signs and outdoor display structures." 22. The definition of 'building' given even in Rule 2 (m) of the Kerala Panchayat Building rules also is identical. W. P. (C) No. 28430 of 2013 -6- 23. In view of the above definition also when the foundation and walls are there as evidenced from the photographs given by the appellant it has to be concluded that the building upon which addition or alteration is sought is very much in existence. 24. However, as admitted by the appellant he has effected certain constructions of erecting pillars. He would say it is on the basis of a deemed permit he did so. Even as admitted by appellant in WP (C) 9284/2012, the Hon'ble High Court directed the Secretary to pass orders on permit. Thereafter the 1[st] impugned order which was set aside in Appeal 1001/12 was given. Facts being so, the case of deemed permit can not be accepted. Hence these constructions of pillars were effected without permit. Therefore the appellant may apply for regularisation. These constructions are actually erected for the safety of the existing and the proposed construction in view of the 3[rd] proviso to Rule 100 (1) of Kerala Municipality Building Rules which reads as below: “ **Special provisions for addition, etc. over existing buildings** , --(1) xxx Provided further that the owner shall be responsible for the structural stability and other safety of the building, both the existing and the proposed;” 25. Hence the said erection of pillars shall be regularized by the Secretary. 26. Thus I conclude that the building of the appellant upon which he was seeking to make addition or alteration is in existence and therefore with respect to making additions or W. P. (C) No. 28430 of 2013 -7- alteration Rule 100 of the Kerala Municipality Building Rules would definitely apply. 27. One more opportunity is given to the Secretary. The Secretary has to obey my above finding that the building upon which alterations or additions are sought to be effected by the appellant is still in existence and for such a building for making additions or alterations the principles contained in Rule 100 of the Kerala Municipality Building Rules will have to be applied. He has to verify whether the application for permit would comply with the requirements of Rule 100 of the Kerala Municipality Building Rules and if so, grant permit to the appellant. 28. In view of the above discussion the impugned order is not at all legally sustainable. The points are found so. In the result, the impugned order is set aside and the appeal is allowed. The Secretary is directed to reconsider the application for permit, strictly obeying the directions contained in paragraph 27 of this order that the building upon which alteration is sought is still in existence and grant building permit to the appellant if the requirements of Rule 100 of the Kerala Municipality Building Rules are complied with. The appellant is directed to apply for regularization of the erection of the pillars in accordance with the provisions contained in the Kerala Municipality Building Rules, since the said construction also was effected immediately after the filing of the application for making additions and the Secretary shall regularize the said construction since the same is required for safety of the building. W. P. (C) No. 28430 of 2013 -8- These two processes will have to be completed by the Secretary within a period of 30 days from today and within 30 days of receiving of applications for regularization of the erection of pillars respectively.” 3. The grievance put forth by the writ petitioner is that the tribunal was not correct in directing the Grama Panchayat to consider the application submitted by the respondent, taking into account the Kerala Municipality Building Rules, 1999, which was made applicable to the Grama Panchayats on and with effect from 06.06.2007 by the State Government as per the powers vested under Section 274 of the Kerala Panchayat Raj Act, 1994, especially due to the fact that by the time the tribunal passed the order, the Kerala Panchayat Building Rules, 2011 has come into force. 4. It is also the contention of the Panchayat that any application is to be considered taking into account the law in force at the time of considering the application and the learned counsel has invited my attention to the judgment of this Court in **Asset Homes (P) Ltd. v. State of Kerala [2011 (2) KLT 1]** and the Hon'ble Apex Court in **Howrah Municipal Corporation and others v. Ganges Rope Company Ltd. And Others [(2004) 15 SCC 663].** I have absolutely W. P. (C) No. 28430 of 2013 -9- no quarrel or doubt with respect to the submission advanced by the learned counsel for the petitioner Sri. R. Ramdas that any application shall be considered taking into account the law in force at point of time of consideration of an application. 5. However this is a case where the construction carried out by the respondent herein namely Sri. V. M. Moideen, Ramanattukara Village, Kozhikode District when the Municipality Building Rules was made applicable to the Panchayat area, as I have pointed out above, by virtue of powers conferred on the State Government under Section 274 of the Kerala Panchayat Raj Act, 1994. The tribunal has taken note of the said aspect and it was accordingly that the directions and observations extracted above were made. 6. Anyhow while this writ petition was admitted to the files of this Court, a stay was granted by this Court, which is even now in force. Therefore, according to the learned counsel appearing for the respondent, the respondent could not file any application consequent to the stay granted by this Court against the order of the tribunal. 7. I have heard, Sri. R. Ramdas learned counsel appeared for the Ramanattukara Grama Panchayat, at present upgraded as W. P. (C) No. 28430 of 2013 -10- Ramanattukara Municipality, and learned counsel appeared for the respondent Sri. G. Santosh Kumar and perused the pleadings and materials on record. 8. It is an admitted fact that the Kerala Panchayat Building Rules, 2011 came into force only in the year 2011. In fact the Kerala Municipality Building Rules, 1999 came into force in the year 1999. Before the introduction of the Kerala Panchayat Building Rules, 2011, there was no building rules applicable for the Grama Panchayats, however by virtue of the powers conferred under Section 274 of the Kerala Panchayat Raj Act, 1994, Government was vested with ample powers to make applicable the provisions of the Kerala Municipality Building Rules to the Panchayat area. It is by virtue of the said powers that the Kerala Municipality Building Rules, 1999 was made applicable to Panchayat area on and with effect from 06.06.2007. 9. Therefore the question with respect to the construction was considered by the tribunal taking into account the above said aspect and the directions were issued after realizing the fact that the construction was carried out by the petitioner when the Municipality Building Rules was in force in the Panchayat area. W. P. (C) No. 28430 of 2013 -11- 10. In that view of the matter, I am of the considered opinion that there is no illegality or arbitrariness on the part of the tribunal in making the observations and directions to the Panchayat. 11. It is also clear from the order passed by the tribunal that various factual circumstances were taken into account by the tribunal and it was applying the law in vogue relatable to the facts on hand that directions were issued. 12. I do not think the petitioner has made out a case for interference with the order of the tribunal exercising the powers conferred under Article 226 of the Constitution of India. Therefore the petitioner is not entitled to get any relief as are sought for in the writ petition, however fact remains whenever an unauthorized construction is carried out by the respondent and detected by the Panchayat or otherwise, necessary application shall be submitted for regularization of the construction which can be done by the Secretary of the Panchayat / Municipality if the constructions are carried out in accordance with the respective building rules and the Act 1994. However if it is not in accordance with the rules, the respondent has to approach the statutory authority in terms of the Kerala Municipality W. P. (C) No. 28430 of 2013 -12- Act, 1994 / Kerala Panchayat Raj Act, 1994, wherein the Government is vested with powers to consider any application for regularization of building construction in violation of the Rules by imposing appropriate fine apart from the fees that are liable to be levied for the building construction. 13. Therefore it is only appropriate that the respondent is granted the liberty to approach the suitable statutory authority for regularizing the unauthorized construction carried out. Therefore the writ petition is disposed of leaving open the liberty of the respondent to file suitable application before the Secretary of the present Municipality namely Ramanattukara Municipality, within one month from the date of receipt of a copy of this judgment, along with all the requisite documents, and if any such application is received, it shall be considered by the appropriate statutory authority, in accordance with law, at the earliest and at any rate within four months from the date of receipt of the application and the requisite documents from the respondent, after providing opportunity of hearing and participation to the respondent. 14. Respondent has also made a submission that respondent has W. P. (C) No. 28430 of 2013 -13- surrendered a portion of the property for widening of the road and on account of the same, as per the provisions of the Kerala Municipality Building Rules, 1999 and the Kerala Municipality Act, 1994, respondent is entitled to get benefit of the scheme framed thereunder. The said aspect shall also be considered by the appropriate statutory authority. I also make it clear that in view of the directions of the tribunal and the checkered history in this case, the Secretary of the Municipality or the statutory authority, shall consider the application, taking into account the provisions of Kerala Municipality Building Rules, 1999 which was made applicable to the Panchayat area at that point of time, and the Kerala Panchayat Raj Act, 1994. **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 28430 of 2013 -14- ## **APPENDIX OF WP(C) 28430/2013** ## **PETITIONER EXHIBITS** **EXHIBIT-P1-** **TRUE COPY OF THE NOTICE NO. B 1106/11 DATED 02/02/2011 TO THE RESPONDENT BY THE PANCHAYATH.** **EXHIBIT-P2-** **TRUE COPY OF THE OBJECTION SUBMITTED BY THE RESPONDENT DATED 11/02/2011.** **EXHIBIT-P3TRUE COPY OF THE JUDGMENT DATED 13/04/2012 IN W.P(C) 9284/2012.** **EXHIBIT-P4TRUE COPY OF THE ORDER NO. B4-1106/2011 DATED 05/11/2012 TO THE RESPONDENT ISSUED BY THE 2ND PETITIONER.** **EXHIBIT-P5TRUE COPY OF THE ORDER DATED 11/03/2013 IN APPEAL NO. 1001/2012 PASSED BY THE HONOURABLE TRIBUNAL.** **EXHIBIT-P6TRUE COPY OF THE ORDER NO. B4/1106/2011 DATED 03/04/2013 BY THE PETITIONERS.** **EXHIBIT-P7TRUE COPY OF THE ORDER DATED 21/10/2013 IN APPEAL NO. 444/2013 BY THE HONOURABLE TRIBUNAL.**