Veeran Kutty and Sabiya v. Unnikulam Grama Panchayath and The President, Unnikulam Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 22ND DAY OF AUGUST 2017/15TH PHALGUNA, 1927** **WP(C).No. 9086 of 2017 (I) ---------------------------** ## **PETITIONERS:** - **-----------** **1. VEERANKUTTY, S/O.ALIMAMMU, AGED 55 YEARS, MANNA POYILIL HOUSE, KOORACHUNDU, KOZHIKODE DISTRICT, REPRESENTED BY IS POWER OF ATTORNEY HOLDER SALIM.E., S/O.IBRAHIM, AGED 46 YEARS, NADUPARAMBIL HOUSE, VATTOLI BAZAR POST, BALUSSERY VIA., KOZHIKODE DISTRICT, PIN - 673612.** **2. SABIYA, W/O.VEERANKUTTY, AGED 50 YEARS, NADOO PARAMBIL, ATHIYODE, KOORACHUNDU, KOZHIKODE DISTRICT, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER SALIM.E., S/O.IBRAHIM, AGED 46 YEARS, NADUPARAMBIL HOUSE, VATTOLI BAZAR POST, BALUSSERY VIA., KOZHIKODE DISTRICT, PIN - 673612.** ## **BY ADVS.SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN** **RESPONDENTS:** ## **------------** **1. UNNIKULAM GRAMA PANCHAYATH,UNNIKULAM, KOZHIKODE DISTRICT, PIN - 673574, REPRESENTED BY ITS SECRETARY.** **2. THE PRESIDENT, UNNIKULAM GRAMA PANCHAYATH, UNNIKULAM, KOZHIKODE DISTRICT, PIN - 673574.** ## **BY ADV. SRI.T.SHIHABUDHEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 9086 of 2017 (I) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT-P1:**|<br>**TRUE COPY OF SALE DEED DATED 3.5.2016 REGISTERED**| |---|---| ||**AS DOC.NO.1746/2006 OF THAMARASSERY TOWN SRO.**| |**EXHIBIT-P2:**|<br>**TRUE COPY OF POSSESSION CERTIFICATE**| ||**DATED 18.7.2016 ISSUED BY VILLAGE OFFICER,**| ||**UNNIKULAM.**| |**EXHIBIT-P3:**|<br>**TRUE COPY OF JUDGMENT DATED 24.1.2017 IN**| ||**WP(C) NO.1106/2017 PASSED BY THIS HON'BLE COURT.**| |**EXHIBIT-P4:**|<br>**TRUE COPY OF ORDER NO.A2-12591/16**| ||**DATED 18.2.2017 ISSUED BY THE 1ST RESPONDENT.**| |**RESPONDENTS' **|**EXHIBITS**<br>**:**| |**EXHIBIT R1:**|**A TRUE COPY OF THE APPLICATION DATED 28.9.2016**| ||**SUBMITTED BY THE PETITIONERS.**| |**EXHIBIT R2:**|**A TRUE COPY OF THE LETTER DATED 30.11.2016**| ||**ISSUED BY THE FIRST RESPONDENT.**| |**EXHIBIT R3:**|**A TRUE COPY OF THE LETTER DATED 13.1.2017 ISSUED**| ||**BY THE FIRST RESPONDENT.**| |**EXHIBIT R4:**|**A TRUE COPY OF THE LETTER DATED 13.1.2017 ISSUED**| ||**BY THE FIRST RESPONDENT TO THAHSILDAR LAND**| ||**ACQUISITION CALICUT.**| ||**/TRUE COPY/**| ||**P.S.TO JUDGE**| |**mbr/**|| ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 9086 of 2017 I - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of August, 2017 **==> picture [128 x 21] intentionally omitted <==** The petitioners are aggrieved with Ext.P4 order passed by the Grama Panchayat; which according to them, is in total violation of Ext.P3 judgment of this Court. The petitioners together own 25.5 cents in Re.Sy.No.59/4 of Unnikulam desom in Thamarassery Taluk. They acquired the property as per Ext.P1 and the possession certificate is issued at Ext.P2. The petitioners approached the Grama Panchayat for constructing a residential building which was not considered for reason of there being a proposal for widening of road. Petitioners approached this Court by filing W.P(C) No.1106/2017. Ext.P3 judgment was passed in the said writ petition since there is no notified scheme for the area. It was WPC.No. 9086/2017 **==> picture [20 x 10] intentionally omitted <==** found that it will not be open to the Panchayat to reject an application for building permit solely on the ground that there is a proposal for road widening. The said writ petition was disposed of directing the Panchayat to consider and pass orders on the application for building permit. 2. It is in compliance of the directions issued in Ext.P3 that Ext.P4 has been passed; is the submission of the Secretary of the Panchayat. In Ext.P4, the request has been rejected for reason of a proposal for acquisition, for the purpose of expanding the building of the Panchayat itself and not for road widening. There was no for road and the proposal widening non-consideration was due to the proposal for acquisition. The petitioner had attempted to mislead this Court on the earlier occasion, is the argument. According to the petitioner the decision to construct a new building is by a resolution of the Council on 07.02.2017, aimed at defeating the claim of the petitioner and to get over the directions in Exhibit P3. WPC.No. 9086/2017 : 3 : 3. The learned Counsel appearing for the respondent Panchayat would argue that in fact the decision was taken as per Ext.R4/2 on 29.11.2016. The petitioner was also intimated of the decision as per Ext.R2/1 dated 30.11.2016 but however, the communication was returned as is evidenced by Ext.R2/2. It is later to that, the order impugned in the above writ petition has been issued; is the contention of the Panchayat. The learned Counsel would also rely on Section 235 L of the Kerala Panchayat Raj Act, 1994 to urge that the rejection is proper. 4. In 2011 (4) KHC 844 (Kalpetta Municipality v. M. Mohandas and Others) it was categorically held that the expression “acquisition proceedings” as available in Section 393 (6) of the Municipality Building Rules, 1999 refers to the acquisition proceedings contemplated under an enactment aiding and providing for acquisition of immovable property like the Land Acquisition Act, 1984. Hence unless a proceeding under a statute providing for acquisition of land is initiated, there can WPC.No. 9086/2017 : 4 : be no rejection by the local authority of a building permit application. In fact the Division Bench held that even a notification under section 4 of the Land Acquisition Act, would not restrict the enjoyment of a property; which includes making constructions thereon. Only a declaration could lead to such restrictions. The wordings in Section 235 L of the Kerala Panchayat Raj Act, 1994 is similar to that found in the Building Rules, which came up for interpretation in the afore cited judgment. What is available in the case is only a resolution by the Council to acquire the property of the petitioners and there is a lot remaining to be done before a proceeding under an enactment for acquisition is commenced. 5. It is also to be noticed that in the earlier writ petition, the petitioner had taken up a contention that there is a road widening proposal for which acquisition was contemplated. This Court had called for the judges papers of W.P(C) No.1106/2017. It is seen that the writ petition was admitted on WPC.No. 9086/2017 : 5 : 12.01.2017 and the petitioner had taken out special messenger against the Panchayat and the President who were parties in the aforesaid case. Special messenger was served prior to 17.01.2017 and the matter was posted on 20.01.2017. It stood adjourned to 24.01.2017 when there was no appearance for the Panchayat. If there were any acquisition proceedings pending, it was for the Secretary to have appeared before Court and apprised the Court of the pending acquisition proceedings. In any event, as of now, there is only a proposal for acquisition as decided by the Council. The Government has to first accord sanction and then initiate proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-settlement Act, 2013 (LARR Act). Unless such proceedings are initiated, the Panchayat cannot reject the building permit applications. 6. In such circumstances, the Panchayat is directed to consider the building permit application de hors the decision of WPC.No. 9086/2017 : 6 : the Council. It is made clear that this would not in any manner stand against the acquisition proceedings if validly taken and the only right available to the petitioner is for compensation for the improvements made in the property. It is also observed that the petitioner cannot claim any equity on the basis of the now made to the improvements challenge acquisition proceedings. Writ petition is allowed. Consideration shall be made, in accordance with Kerala Panchayat Building Rules, 2011 within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge