Sivakumar P. and Vinodhini v. Panmana Grama Panchayath, represented by its Secretary, and Jamalukunju

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 14TH DAY OF AUGUST 2020 / 23RD SRAVANA, 1942** ## **WP(C).No.42289 OF 2018(I)** ## **PETITIONER/S:** **1 SIVAKUMAR.P., AGED 47 YEARS, S/O. PURUSHOTHAMAN, SMRUTHILAYAM HOUSE, PANMANA, PUTHENCHANDA P.O., KOLLAM DISTRICT.** **2 VINODHINI, W/O. SIVAKUMAR P., SMRUTHILAYAM HOUSE, PANMANA, PUTHENCHANDA P.O., KOLLAM DISTRICT.** **BY ADVS. SRI.M.T.SURESHKUMAR SRI.R.RENJITH** ## **RESPONDENT/S:** - **1 PANMANA GRAMA PANCHAYATH, CHAVARA, KOLLAM DISTRICT, PIN-695581,REPRESENTED BY ITS SECRETARY.** **2 THE SECRETARY, PANMANA GRAMA PANCHAYATH, CHAVARA, KOLLAM DISTRICT, PIN-695581. 3 JAMALUKUNJU, 14/524,PALACE NADUVATHUCHEERI, PUTHENCHANDA P.O., PANMANA, KOLLAM DISTRICT,PIN-691583.** **R1-R2 BY ADV. SRI.S.VIBHEESHANAN R1-R2 BY ADV. SRI.K.SUDHINKUMAR R1-R2 BY ADV. SRI.MUHAMMED IBRAHIM ABDUL SAMAD R1-R2 BY ADV. SRI.S.K.ADHITHYAN R1-R2 BY ADV. SRI.P.MOHANDAS (ERNAKULAM) R1-R3 BY ADV. DR.K.P.SATHEESAN (SR.) R3 BY ADV. SRI.N.KRISHNA PRASAD R3 BY ADV. SRI.N.ANAND R3 BY ADV. SRI.BIJITH S.KHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.42289 OF 2018(I) **2** ## **JUDGMENT** The petitioners, who are husband and wife, are joint owners of 2.02 ares of property comprised in Re.Sy.No.414/19-2 in Panmana Village. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P12 order dated 09.11.2018 of the Tribunal for Local Self Government Institutions in Appeal No.965 of 2017. That appeal was one filed by the 3[rd] respondent challenging Ext.P4 building permit dated 06.11.2014, granted to the petitioners by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat, whereby the petitioners where permitted to construct a residential building in the frist floor of their Commercial building situated in the property having an extent of 2.02 ares. In the appeal filed before the Tribunal for Local Self Government Institutions, the 3[rd] respondent challenged Ext.P4 building permit alleging violation of various provisions of the Kerala Panchayat Building Rules, 2011. That appeal was allowed by Ext.P12 order dated 09.11.2018 of the Tribunal, by holding that the petitioners cannot claim the benefit of the provisions under Rule 97A of the said Rules, since that provision is applicable only for alteration or addition/extension of the first WP(C).No.42289 OF 2018(I) **3** floor or second floor or both to buildings existing before the commencement of the Act, i.e., the Kerala Panchayat Raj Act, 1994. Since the petitioners have constructed the ground floor of the building only in the year 2013, the provisions under Rule 97A are not attracted. In Ext.P12 order, the Tribunal has also found that there is violation of the provisions of Section 220(b) of the Kerala Panchayat Raj Act, 1994 and also Rule 27(4) and (5) of the Kerala Panchayat Building Rules, 2011. Paragraph 11 and 12 of Ext.P12 order reads thus: “11. According to the appellant, Ext.P4 approved plan and the impugned permit are in violation of several Rules of Kerala Panchayat Building Rules. Learned counsel for the appellant submitted that misusing Ext.P1 NOC issued by him for the purpose of granting number to the ground floor of the building of 2[nd] and 3[rd] respondents, the impugned permit and Ext.P4 approved plan was obtained. But learned counsel for the 2[nd] and 3[rd] respondents submitted that in Ext.P1 it is not mentioned as if further construction over the building is not permitted. It is to be noted that as per Ext.P1 consent was given by the appellant and his wife not for the construction of the building abutting their property instead consent was given only for numbering the building which was unauthorizedly constructed abutting their boundary. Therefor it cannot be found that based on Ext.P1 2[nd] and 3[rd] respondents could further obtain any building permit for effecting construction abutting their boundary. Moreover it is to be noted that in the copy of the impugned permit WP(C).No.42289 OF 2018(I) **4** available in page No.5 of the file produced by the 1[st] respondent and also in Ext.P4 approved plan no where it is stated that the said permit and approved plan was issued based on any consent given by the appellant. It is also to be noted that the definite case of the 1[st] respondent in his written statement is that the impugned permit was granted in favour of the 2[nd] and 3[rd] respondents as per Rule 97 A of Kerala Panchayat Building Rules. Even according to the 2[nd] and 3[rd] respondents the ground floor portion was constructed by them during 2013, Rule 97 A of Kerala Panchayat Building Rules is applicable only for addition over the buildings existing before the commencement of Panchayat Raj Act. Since the existing ground floor was constructed only during 2013, Rule 97 A of Kerala Panchayat Building Rules is having no application in issuing the impugned permit. The 1[st] respondent is having no case that the impugned permit and Ext.P4 plan was approved accepting Ext.P1 consent from the appellant and his wife. As stated earlier since Ext.P1 consent was given only for numbering the building which was constructed unauthorizedly abutting the boundary of the appellant it cannot be found to be a consent given for construction of a building. 12. It is the specific case of the appellant that the impugned permit and Ext.P4 plan is in violation of Kerala Panchayat Building Rules. In Ext.P2 completion plan of the ground floor the set back provided on all the four sides is available. 1[St] respondent has admitted in his written statement that the proposed 1[st] floor is having an open space of 60 cm on its rear side, 90 cm on its western side 220 cm on its eastern side and 2.95 meters and 3.10 meters on its southern side. WP(C).No.42289 OF 2018(I) **5** The inspection reports available in page No.29 & 30, 32 and the report submitted by the Assistant Engineer to the 1[st] respondent available in page No.38 of the file produced by the respondent there is reference regarding violation of Section 220(b) of Panchayat Raj Act and Rule 27 (4) & (5) of Kerala Panchayat Building Rules. The available open space of the proposed 1[st] floor, admitted in the written statement of 1[st] respondent also shows that there is violation of Section 220(b) of Panchayat Raj Act and Rule 27(4) & (5) of Kerala Panchayat Building Rules. Even if the eastern side where 220 cm set back is provided is taken as the rear yard, then also there is violation of Rule 27 (5) as the side yards are having only 90 cm and 60 cm as against the mandatory open space of 1.2 meter and 1 meter. Since it is admitted in the written statement of the 1[st] respondent that an open space of 2.95 meters and 3.10 meter alone is available on either side of the front yard, there is violation of Section 220(b) of Panchayat Raj Act also. From these it can be seen that the impugned permit and Ext.P4 approved plan are in violation of Kerala Panchayat Building Rules and hence liable to be set aside. This point is found accordingly.” 2. On 21.12.2018, when this writ petition came up for admission, this Court admitted the matter on file and issued notice by special messenger to the respondents. 3. A counter affidavit has been filed by respondents 1 and 2 and also by the 3[rd] respondent opposing the reliefs sought for in this writ petition. 4. In **Kumari Mohanam K.P. v. The Corporation of** WP(C).No.42289 OF 2018(I) **6** **Thiruvananthapuram [2019(4) KHC 538]** , this Court held that in exercise of jurisdiction under Article 226 of the Constitution of India, this Court is not sitting in appeal over the order of the Tribunal for Local Self Government Institutions. When the reasoning of the Tribunal is neither perverse or patently illegal, no interference is warranted under Article 226 of the Constitution of India. 5. As already noticed by the Tribunal in Ext.P12 order, the proposed construction on the first floor of the petitioners building will not come within the purview of Rule 97A of the Kerala Panchayat Building Rules, 2011, since the petitioner have constructed the ground floor of the building only in the year 2013. Moreover, there is violation of Rule 27(4) and (5) of the said Rules and also Section 220(b) of the Kerala Panchayat Raj Act, 1994. Therefore, the reasoning of the Tribunal in Ext.P12 order is perfectly legal, which warrants no interference by this Court, in exercise of the writ jurisdiction under Article 226 of the Constitution of India. The challenge made in this writ petition against Ext.P12 accordingly fails. 6. The learned Senior Counsel for the petitioners, after referring to the provisions under Rule 26 of the Kerala Panchayat WP(C).No.42289 OF 2018(I) **7** Building Rules, 2019 would submit that as per Table 4 of sub-rule (4) of Rule 26, for buildings in small plots under Group A1 and F (built up area not exceeding 200 sq. metres and plot area not exceeding 125 sq. metres), the requirement of side yards is only 0.6 metres. Therefore, the petitioners have submitted a fresh application, i.e., Ext.P13 application dated 10.06.2020, before the 2[nd] respondent for building permit, in order to construct a floor above the ground floor of the existing building, in confrimity with the provisions under the Kerala Panchayat Buildings Rules, 2019. 7. The learned counsel for the 3[rd] respondent would submit that consideration of Ext.P13 application may be made with a notice to the said respondent and after affording him an opportunity of being heard. In such circumstances, this writ petition is disposed of directing the 2nd respondent to consider and pass appropriate orders on Ext.P13 application made by the petitioners for building permit, strictly in accordance with law, with notice to the petitioners and also to the 3rd respondent and after affording them an opportunity of being heard, as expeditiously as possible. WP(C).No.42289 OF 2018(I) **8** The legal and factual contentions raised by both sides are left open to be raised before the 2nd respondent, at appropriate stage. Sd/- **ANIL K NARENDRAN** MIN **JUDGE** WP(C).No.42289 OF 2018(I) **9** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**TRUE COPY OF THE BUILDING PERMIT DATED**| ||**06.7.2010 AND THE APPROVED PLAN.**| |**EXHIBIT P2**|**TRUE COPY OF THE CONSENT LETTER ISSUED**| ||**BY THE 3RD RESPONDENT IN THE YEAR 2013.**| |**EXHIBIT P3**|**TRUE COPY OF THE OWNERSHIP CERTIFICATE**| ||**ISSUED BY THE RESPONDENT PACHAYATH DATED**| ||**20.05.2015.**| |**EXHIBIT P4**|**TRUE COPY OF THE BUILDING PERMIT DATED**| ||**06.11.2014 AND THE APPROVED PLAN.**| |**EXHIBIT P5**|**TRUE COPY OF THE MEMORANDUM OF APPEAL IN**| ||**APPEAL NO. 965/2017 DATED 16.12.2017.**| |**EXHIBIT P6**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**12.12.2017**| |**EXHIBIT P7**|**TRUE COPY OF THE STATEMENT OF OBJECTION**| ||**FIELD BY THE PETITIONERS DATED**| ||**20.04.2018**| |**EXHIBIT P8**|**TRUE COPY OF THE WRITTEN STATED FILED BY**| ||**THE 2ND RESPONDENT DATED FEBRUARY 2018.**| |**EXHIBIT P9**|**TRUE COPY OF THE PROOF AFFIDAVIT FILED**| ||**BY THE 2ND RESPONDENT DATED 07.09.2018.**| |**EXHIBIT P10**|**TRUE COPY OF THE DEPOSITION/CROSS**| ||**EXAMINATION OF 2ND RESPONDENT DATED**| ||**07.09.2018.**| |**EXHIBIT P11**|**TRUE COPY OF THE MAINTAINABILITY**| ||**PETITION AND AFFIDAVIT FIELD BY THE 2ND**| ||**PETITIONER DATED 06.03.2018.**| |**EXHIBIT P12**|**TRUE COPY OF THE ORDER DATED 09.11.2018**| ||**IN APPEAL NO.965/2017 BY THE TRIBUNAL**| ||**FOR LOCAL SELF GOVERNMENT INSTITUTIONS.**| |**EXHIBIT P13**|**TRUE PHOTOSTAT COPY OF THE**| ||**REPRESENTATION DATED 10.06.2020**| ||**SUBMITTED BY THE PETITIONER BEFORE THE**| ||**2ND RESPONDENT.**| WP(C).No.42289 OF 2018(I) **10** ## **RESPONDENT'S/S EXHIBITS:** **EXIBIT R(3)(A) TRUE COPY OF THE COMPLAINT DATED 14.11.2017 PREFERRED BEFORE THE 1ST RESPONDENT PANCHAYAT EXIBIT R(3)(B) TRUE COPY OF THE REPLY RECEIVED FROM THE 1ST RESPONDENT PANCHAYAT DATED 10.10.2017**