Surendran C.K. and Kunhimoosa v Chorodu Grama Panchayath and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **TUESDAY ,THE 27TH DAY OF NOVEMBER 2018 / 6TH AGRAHAYANA, 1940** ## **WP(C).No. 29674 of 2018** ## **PETITIONER/S:** |**1**||**SURENDRAN C.K.,**| |---|---|---| |||**AGED 58 YEARS,**| |||**S/O ACHUTHAN, CHERUVATH HOUSE,**| |||**CHORODU P.O., VADAKARA,**| |||**KOZHIKODE - 673106.**| |**2**||**KUNHIMOOSA,**| |||**S/O.KUNHIMAMMU,**| |||**MANOKOTH HOUSE,**| |||**ANIYARAM, CHOKLI P.O.,**| |||**KANNUR - 670 672.**| |||**BY ADV. SRI.P.DEEPAK**| |**RESPONDENT/S**<br>**:**||| |**1**||**CHORODU GRAMA PANCHAYATH,**| |||**REPRESENTED BY ITS SECRETARY,**| |||**CHORODU (PO), VADAKARA,**| |||**KOZHKODE - 673106**| |**2**||**THE SECRETARY,**| |||**CHORODU GRAMA PANCHAYATH,**| |||**CHORODU (PO),**| |||**VADAKARA,**| |||**KOZHIKODE - 673 106.**| |**3**||**CHORODU GRAMA PANCHAYATH COUNCIL,**| |||**REPRESENTED BY ITS PRESIDENT,**| |||**CHORODU (PO),**| |||**VADAKARA, KOZHIKODE- 673 106.**| |||**BY ADVS.**| |||**SRI.VINOD SINGH CHERIYAN**| |||**SMT.K.P.SUSMITHA**| |||**SRI.T.M.KHALID**| |||**SMT.V.MIMITA**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.29674 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioners seeking direction to the respondents to grant D&O licence as applied for by the 2[nd] petitioner as per Exts.P7 and P8 as expeditiously as possible, and further to declare that the 2[nd] petitioner is entitled for deemed licence under Rule 12(3)(c) of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (for short, 'the Rules, 1996'), as amended by the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Amendment Rules, 2017, and Sec.236(3) of the Kerala Panchayat Raj Act, 1994 (for short, 'the Act, 1994'), since the 2[nd] respondent failed to communicate after receipt of Exts.P7 and P8. Brief material facts for the disposal of the writ petition are as follows: 2. The 1[st] petitioner is the owner of a parcel of property comprised in R.S.No.18/42 of Chorodu Village, Vadakara Taluk, Kozhikode District. He applied for building permit and it was granted as per Ext.P2. Thereafter, he completed construction of four floors out of seven floors, obtained occupancy certificate and building numbers. First petitioner let out the premises W.P.(C) No.29674 of 2018 3 to the 2[nd] petitioner. The 2[nd] petitioner applied for D&O licence to start a business in the ground and first floors of the building in question, which were assigned with building numbers 16/444B and 16/444C respectively. Exts.P7 and P8 D&O licence applications given by the 2[nd] petitioner were received by the 2[nd] respondent on 16.07.2018, evident from Ext.P9 receipt. However, no communication was received by the petitioners within 30 days from the date of receipt of the D&O licence application by the 2[nd] respondent. According to the petitioners, the 2[nd] petitioner has spent substantial amounts for carrying on with the business activities in the 1[st] and 2[nd] floors of the building, and therefore, the lethargy and laches on the part of the 2[nd] respondent has caused innumerable difficulties and loss to the petitioners. 3. Respondents have filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioners. The prime contention advanced is that, petitioners have not availed the statutory remedies to prefer appeal against the inaction on the part of the Panchayat before the Tribunal for Local Self Government Institutions, which, according to the respondents, is a well-settled legal proposition. W.P.(C) No.29674 of 2018 4 The case projected by the respondents is that, petitioners have violated six of the conditions laid down in Ext.P1 by the Chief Town Planner, out of seven, during the completion of the second phase of the construction. Ext.P2 building permit was issued in accordance with the plan and sketches submitted by the 1[st] petitioner. It is admitted that the first phase of the construction was in accordance with the plan and the building permit and as such, building number was assigned, occupancy certificate was issued and property tax was collected as per Exts.P3 and P4 receipts for the four floors completed by the 1[st] petitioner. Therefore, according to the respondents, this is an ample proof to show that the respondents have no _malafide_ intention or prejudice against the petitioners. However, at the time of inspection for numbering the second phase of the building, it was found that the 1[st] petitioner has violated Rules 26(8), 28(1) and 112(1) of the Kerala Panchayat Building Rules, 2011. Besides, the waste management and solar energy systems were not arranged. Consequently, the above matter was communicated to the 1[st] petitioner as per Ext.R2(a) letter, in which there was no satisfactory explanation regarding the violation of the building Rules. W.P.(C) No.29674 of 2018 5 4. It is also submitted that, Exts.P5 and P6 certificates were issued by the Health Inspector, which do not comply with the Building Rules. The 2[nd] petitioner had applied for D&O licence as per Exts.P7 and P8 and he had remitted fee as per Ext.P9 receipt, but the structure owned by the 1[st] petitioner is an illegal construction. Therefore, according to the respondents, the contention of the 2[nd] petitioner that 2[nd] petitioner got all statutory permissions from all authorities for running the business is not at all true or correct. So also, it is pointed out that, the application submitted by the 2[nd] petitioner was rejected and the matter was communicated to the 2[nd] petitioner as per Ext.R2(c), evident from the dispatch register as per Ext.R2(d). The sum and substance of the contention put forth by the respondents is that, a communication was addressed to the 2[nd] petitioner on 30.07.2018, i.e. within the period, as is evident from Ext.R2(d) dispatch register maintained by the Panchayat. Therefore, it is submitted that, petitioners are not entitled to get a deemed licence, since the Secretary has communicated the 2[nd] petitioner with Ext.R2(c), from where, I could gather that, since there is violation of the Building Rules, in the building constructed by the 1[st] petitioner in the second phase of the construction, W.P.(C) No.29674 of 2018 6 no D&O licence can be granted to the 2[nd] petitioner. 5. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition, and also submitted that, so far as the first phase of the construction is concerned, it was regarding four floors and the entire four floors were numbered by the Secretary of the Panchayat and issued occupancy also. Therefore, if there are any deficiencies or shortcomings in the matter of second phase of the construction by the 1[st] petitioner, the licence sought for by the petitioners to conduct business in the two floors in which occupancy was granted and building number was assigned, is not a sustainable reason to deny D&O licence. So far as the receipt of the applications viz., Exts.P7 and P8 by the Panchayat on 16.07.2018 is admitted. Merely because Ext.R2(c) communication was issued, pointing out some deficiencies in the construction of the second phase, that is not a properly constituted communication so as to disable the 2[nd] petitioner from securing a deemed licence, since the reasons assigned in Ext.R2(c) are not germane to the application submitted by the 2[nd] petitioner for D&O licence. W.P.(C) No.29674 of 2018 7 6. I have heard learned counsel for the petitioners and the learned counsel appearing for the respondents and perused the pleadings and the documents on record. 7. Learned counsel for the petitioners submitted that, there is no communication received by the petitioners, like Ext.R2(c), and also pointed out that, the manner in which the notices are to be served is prescribed in Panchayat Raj (Manner of Service of Notices) Rules, 1996, wherein as per Rule (3), if personal service of notice is not resorted to, service of notice has to be by registered post. The said issue was considered by a learned Single Judge of this Court in ' _**B.B.P Properties (P) Ltd. v. Chengamanadu Grama Panchayat**_ ' [2010(1) KLT 306], elaborately, and held that, the petitioner therein can be imputed with notice only upon delivery of the said notice by registered post or by other mode by which the original or an authenticated copy is delivered to it. Therefore, Ext.R2(d) dispatch register can never be treated as a proof at all to arrive at a conclusion that Ext.R2(c) is received by the petitioners. So much so, when there is a mode of service prescribed under a rule, the respondents are duty bound to effect service in that manner. Moreover, there is no presumption available under any law, at least to _prima_ W.P.(C) No.29674 of 2018 8 _facie_ think that there is service of Ext.R2(c). 8. Apart from all these aspects, even assuming that such a communication was served on the petitioners, the reasons assigned thereunder are not germane to the applications submitted by the petitioners for issuing D&O licence to buildings which are numbered and occupancy certificates issued, and therefore, such a communication pointing out defects in the matter of 2[nd] phase of construction carried out by the 1[st] petitioner, can cause any manner of legal implication disabling the 2[nd] petitioner from securing deemed licence as provided under law. So also, as is noticeable from Ext.R2(d), a communication is sent by the Panchayat to Justice Siri Jagan Committee by registered post, affixing a stamp of Rs.25/-, whereas the entry against the petitioners, the stamp value is shown as Rs.5/-, which thus means, the burden of proof is absolutely on the Panchayat to establish the service of notice by post to the petitioners, however, respondents have not made any attempt to do so. 9. Evaluating the factual and legal situations, I am of the considered opinion that, 2[nd] petitioner is entitled to secure deemed licence in accordance with Rule 12(3)(c) of the Rules, 1996, as amended by the Amendment W.P.(C) No.29674 of 2018 9 Rules, 2017 read along with Sec.236(3) of Act, 1994. Accordingly, there will be a direction to the 2[nd] respondent to issue D&O licence to the 2[nd] petitioner in paper form, at the earliest, and at any rate, within three weeks from the date of receipt of a copy of this judgment. However, I make it clear that, the action initiated by the 2[nd] respondent against the 1[st] petitioner in respect of the second phase of the construction of building can be continued, in accordance with law, and the observations and directions contained above shall not stand in the way of the Panchayat proceeding with the said matter in accordance with law. The questions of fact and law, if any, raised in that regard are all left open. The writ petition is allowed to the above extent. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** W.P.(C) No.29674 of 2018 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE PROCEEDINGS OF THE CHIEF**| |---|---| ||**TOWN PLANNER NO.D1-216/208 K.DIS DATED**| ||**23/4/2008.**| |**EXHIBIT P2**|**TRUE COPY OF THE BUILDING PERMIT ISSUED TO**| ||**THE 1ST PETITIONER AS B.A.21/07/08 ON**| ||**19/5/2008.**| |**EXHIBIT P3**|**TRUE COPY OF THE PROPERTY TAX RECEIPT FOR**| ||**THE FINANCIAL YEAR 2017-18 IN RESPECT OF**| ||**BUILDING NO.16/444-B AND 16/444C ON**| ||**20/11/2017.**| |**EXHIBIT P4**|**THE TRUE COPY OF THE PROPERTY TAX RECEIPT**| ||**FOR THE FINANCIAL YEAR 2018-19 DATED**| ||**5/9/2018.**| |**EXHIBIT P5**|**TRUE COPY OF THE CERTIFICATE ISSUED BY THE**| ||**HEALTH INSPECTOR, PRIMARY HEALTH CENTRE,**| ||**CHORODE IN RESPECT OF BUILDING NO.16/444B**| ||**DATED 2/5/18.**| |**EXHIBIT P6**|**TRUE COPY OF THE CERTIFICATE ISSUED BY THE**| ||**HEALTH INSPECTOR, PRIMARY HEALTH CENTRE,**| ||**CHORODE, IN RESPECT OF BUILDING NO.16/444C**| ||**DATED 2/5/18.**| |**EXHIBIT P7**|**TRUE COPY OF THE APPLICATION FOR D & O**| ||**LICENCE APPLIED BY THE 2ND PETITIONER IN**| ||**RESPECT OF BUILDING NO.16/444B DATED**| ||**16/7/2018.**| |**EXHIBIT P8**|**TRUE COPY OF THE APPLICATION FOR D & O**| ||**LICENCE APPLIED BY THE 2ND PETITIONER IN**| ||**RESPECT OF BUILDING NO.16/444 C DATED**| ||**16/7/2018.**| |**EXHIBIT P9**|**TRUE COPY OF THE RECEIPT SHOWING THE RECEIPT**| ||**OF EXT.P7 AND P8 APPLICATIONS BY THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P10**|**A TRUE COPY OF THE REPLY DATED 18.8.2018**| ||**SUBMITTED BY THE 1ST PETITIONER IN RESPONSE**| ||**TO EXHIBIT R2(1) NOTICE DATED 08.8.2018.**| W.P.(C) No.29674 of 2018 11 **EXHIBIT P11 A TRUE COPY OF THE REPLY DATED 09.10.2018 SUBMITTED BY THE 1ST PETITIONER IN RESPONSE TO EXHIBIT R2(2) PROVISIONAL ORDER DATED 15.9.2018. RESPONDENT'S/S EXHIBITS: EXHIBIT R2(A) COPY OF THE LETTER NO.A1-549/18 DATED 8.8.2018 SENT TO THE 1ST PETITIONER. EXHIBIT R2(B) COPY OF THE ORDER NO-A1-549/18 DATED 15.9. 2018 SENT TO THE 1ST PETITIONER,. EXHIBIT R2(C) COPY OF THE LETTER N.B3-4764/18 DATED 30.7.2018 SENT TO THE 2ND PETITIONER. EXHIBIT R2(D) COPY OF THE EXTRACT OF THE DESPATCH REGISTER DATED 30.7.2018.** //TRUE COPY// P.S. TO JUDGE St/-