**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE SHAJI P.CHALY**
**MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940**
**WP(C).No. 18281 of 2014**
## **PETITIONER :**
**THE SECRETARY, PORUR GRAMA PANCHAYAT, P.O.PORUR, MALAPPURAM DISTRICT - 679 339.**
**BY ADVS.SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI**
## **RESPONDENT :**
**P. MAHABOOB, S/O.IBRAHIM MUSLIAR, PULATH HOUSE, KOTTAKUNNU, PORUR P.O., MALAPPURAM DISTRICT - 679 339.**
**BY ADV. SRI.A.AHZAR**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**EL**
**WP(C).No. 18281 of 2014 (I)**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS**
- **P1 - TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT DT. 02.9.2010 SUBMITTED BY THE RESPONDENT BEFORE THE PETITIONER.**
- **P2 - TRUE COPY OF THE SITE PLAN SUBMITTED BY THE RESPONDENT BEFORE THE PETITONER.**
- **P3 - TRUE COPY OFTHE BUILDING PERMIT DT. 08.9.2010 ISSUED BY THE PETITIONER TO THE RESPONDENT.**
- **P4 - TRUE COPY OF THE REPORT SUBMITTED BY THE WARD CLERK.**
- **P5 - TRUE COPY OF THE NOTICE DT. 05.8.2013 ISSUED BY THE PETRITIONER TO THE RESPONDENT.**
- **P6 - TRUE COPY OF THE ORDER DT.28.9.2013 ISSUED BY THE PETITIONER TO THE RESPONDENT.**
- **P7 - TRUE COPY OF THE LETTER DT. 05.10.2013 SENT BY THE RESPONDENT TO THE PETITIONER.**
- **P8 - TRUE COPY OF THE ORDER DT. 24.5.2014 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.**
- **P9 - TRUE COPY OF THE DECISION OF THE PANCHAYAT COMMITTEE DT. 17.11.2003.**
- **P10 - TRUE COPY OF THE PANCHAYAT ASSET REGISTER.**
## **RESPONDENT(S)' EXHIBITS**
## **NIL**
**TRUE COPY**
**P.S. TO JUDGE**
## **EL**
## **3.7.2018**
## **SHAJI P. CHALY, J.**
--------------------------------------------------
## **W.P.(C) No.18281 of 2014 ----------------------------------------------Dated this the 2[nd] day of July, 2018**
## **JUDGMENT**
This writ petition is filed by the petitioner Panchayat seeking to quash Ext.P8 order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram in appeal No.1010/2013 filed by the respondent herein, whereby it is held that the inaction on the part of the Panchayat in issuing the occupancy to the respondent herein cannot be tolerated, and the respondent is entitled to secure deemed occupancy in accordance with the provisions of the Act and the Rules. Brief material facts for the disposal of the writ petition are as follows:
2. The respondent was issued with Ext.P3 building permit on 08.09.2010 for the construction of a residential building with a setback of 3 metres from PutiyathkunnuNaypally road as shown in Ext.P2 plan submitted along with Ext.P1 application seeking building permit. After completion of the construction, respondent applied for occupancy certificate and numbering of the building. But, when the ward clerk of
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**W.P.(C) No.18281 of 2014**
the petitioner Panchayat conducted inspection, it was found that the boundary of the property was not clearly demarcated. Subsequently, when the property was surveyed, it was found that, only 2 metres front open yard was there abutting the aforesaid road, which is in violation of the approved building plan. Hence, the application for occupancy certificate was rejected as per Ext.P6 order dated 28.09.2013. However, respondent had not challenged the said order and it has become final. Instead, respondent has submitted Ext.P7 letter to the petitioner Panchayat, contending that the respondent had failed to produce the completion certificate and plan along with the application for numbering the building. Subsequently, respondent approached the Tribunal, and the Tribunal as per Ext.P8 order confirmed the deemed occupancy, which according to the petitioner, without properly appreciating the facts of the case.
3. It is also submitted that, the Tribunal even went to the extent of holding that the road in question abutting the petitioner's property is not a notified Panchayat road. It is also submitted that, the Tribunal also failed to note that, since the Kerala Municipality Building Rules were made applicable to the
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Panchayat in the year 2007, the setback of 3 metres was mandatory and Ext.P6 has also became final. These are the background facts projected by the petitioner to secure the reliefs sought for in the writ petition.
4. A counter affidavit is filed by the respondent, refuting the allegations and claims and demands raised by the petitioner, wherein, it is submitted that, the respondent constructed a residential building in 7 cents of property comprised in Re-survey No.140/41/12 of Porur Village in Wandoor Block in Malappuram District, after obtaining valid permit. The Panchayat where the building situate is a Category-II Panchayat and no permit is required. After completion of the building, respondent applied for issuing Occupancy Certificate and assigning building number on 05.10.2013. However, the same was kept pending on the ground that 3 metres setback has to be left as contemplated under Sec.220(b) of the Kerala Panchayat Raj Act. As the Occupancy Certificate was not issued after long period, the respondent has approached the Tribunal on 24.05.2015, and the Tribunal allowed the appeal and declared that the respondent has obtained deemed occupancy with respect to
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the building, and further directions were issued accordingly. It is further submitted that, the road in question is not a notified road as contemplated under Sec.220(b) of the Kerala Panchayat Raj Act. Other contentions are also raised by the respondent justifying the order passed by the Tribunal in favour of the respondent.
5. I have heard respective counsel across the Bar and perused the documents on record and the pleadings put forth by the respective parties.
6. The sole question to be considered is, whether any manner of interference is warranted to Ext.P8 order passed by the Tribunal, exercising the power of judicial review under Article 226 of the Constitution of India. The Tribunal has clearly found that, in order to apply Sec.220(b) of the Kerala Panchayat Raj Act, the road should be a National Highway, State Highway, District Road or any other roads notified by the Village Panchayat. Since there is no specific description of this particular road even as per the decision relied upon by the Panchayat, it cannot be said that the road in question is a road notified by the Village Panchayat. The Tribunal has also relied on the judgment of this Court in _**'Mulamthuruthy Grama**_
**W.P.(C) No.18281 of 2014**
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_**Panchayat v. Ombudsman for L.S.G.I'**_ [2009 (4) KLT 451], in which, it is held that, a decision taken by the Grama Panchayat under Sec.220(b) of the Kerala Panchayat Raj Act to notify a Village Road for the purpose of distance rule is not a notification to be published in the official gazette as required under Rule 3, and it is only a notice to be published in terms of Rule 4. It was also held that, when Rule 220(b) of Kerala Panchayat Raj Act expressly says that the road should be a road notified by the Panchayat, there should be an express specific notification with respect to the road, for coming within the scope of Sec.220(b) of Kerala Panchayat Raj Act.
7. However, in the case at hand, the decision alleged to have been taken by the Panchayat is only a general decision without any specifications, and it cannot be invoked by the Panchayat to contend that the road in question is a notified road. That apart, it is found that, even though in the written statement of the Panchayat, it is contended that, the road has been included in the asset register of the Panchayat, the same is not produced before the Tribunal for perusal. So also, there is no notification produced before the Tribunal in respect of the road in question and the Asset Register is also not produced
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before the Tribunal. It was thereupon that the Tribunal entered into categoric finding that the respondent is entitled to get deemed licence in accordance with law, and further consequential directions were issued to issue Occupancy Certificate in favour of the respondent and assign building number and assess it to the property tax.
8. The paramount contention advanced by learned counsel for the petitioner is that, evident from Ext.P9 minutes of the Panchayat dated 17.11.2003, it is clear that, the Panchayat has taken a decision to include the road in question in Ext.P10 road register maintained by the Panchayat. However, the subject matter under consideration before this Court is a challenge made against the order passed by the Tribunal as per Ext.P8. The Tribunal has passed the order by taking into account the available pleadings and the documents before it. It is clear from Ext.P8 order that the petitioner Panchayat had taken a contention in the written statement that the property is included in the road register, however, no resolution or road register was produced before the Tribunal in order to consider the said issue. Therefore, by production of Ext.P9 minutes and Ext.P10 extract of the Asset Register will
**W.P.(C) No.18281 of 2014**
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not suffice the situation, since it would have been produced before the Tribunal and the documents should have been marked. Having not done so, the petitioner Panchayat is not entitled to canvass the illegality or arbitrariness of Ext.P8 order passed by the Tribunal by producing the said documents before this Court. That apart, it is clear from Sec.220(b) of the Kerala Panchayat Raj Act that, in order to include a particular road in the Road Register, it should have been published in the Gazette. What has been held by this Court in
' _**Mulamthuruty Grama Panchayat'**_ ( _supra_ ), is, in order to calculate the distance rule from a road, the notification is not required. But, that would not suffice the situation, so far as the building permit is concerned, as is held by the Tribunal.
9. Evaluating the whole situation and appreciating the _pros and cons_ , I am of the considered opinion that, petitioner Panchayat has not made out a case of arbitrariness or illegality on the part of the Tribunal in appreciating the pleadings and the documents produced before it, and arrive at a conclusion, evident from Ext.P8 order. Therefore, I do not find any reason to interfere with Ext.P8 order passed by the Tribunal.
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The writ petition fails, accordingly it is dismissed.
Sd/- **SHAJI P. CHALY JUDGE**
St/02.07.2018
