IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 WP(C).No. 17474 of 2010(H) ---------------------------------- PETITIONER(S): ------------------- AZHIKODE GRAMA PANCHAYATH, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY, M.P.MUHAMED ASHRAF. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): -------------------- 1. NAROTH CHAITHANYA, W/O.PRAJITH, AGED 24 YEARS, PARAMBIL HOUSE, VARAM P.O., KANNUR DISTRICT. 2. P.PRAJITH, S/O.BHARATHAN,AGED 34 YEARS, PARAMBIL HOUSE, VARAM P.O., KANNUR DISTRICT. 3. THE KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY, SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 4. DIRECTOR, CENTRE FOR EARTH SCIENCE STUDIES, THIRUVANANTHAPURAM. 5. TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. R1 & 2 BY ADVS. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU R3 BY ADV. SRI.S.RAMESH,SC,COASTAL ZONE MANAGEMENT R4 BY ADV. SRI.V.KRISHNA MENON, SC. R5 BY GOVT. PLEADER SRI.REMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 17474/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPLICATION DATED 31/09/2007 SUBMITTED BY 1ST AND 2ND RESPONDENTS BEFORE THE PETITIONER PANCHAYATH. P2: COPY OF THE ORDER DATED 05/12/2007 OF THE PETITIONER PANCHAYATH. P3: COPY OF THE ORDER DATED 29/04/2008 IN APPEAL NO.5/2008 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. P4: COPY OF THE LETTER DATED 12/06/2008 SENT BY PETITIONER TO THE 3RD RESPONDENT. P5: COPY OF THE LETTER DATED 22/12/2008 RECEIVED BY PETITIONER FROM THE 3RD RESPONDENT ALONG WITH THE COPY OF THE MINUTES OF THE 26TH MEETING OF THE KCZMA. P6: COPY OF THE APPLICATION DATED 19/12/2009 SUBMITTED BY THE RESPONDENTS 1 AND 2 BEFORE THE PANCHAYATH SECRETARY. P7: COPY OF THE REPLY TO EXT. P6, DATED16/12/2009 SENT BY PANCHAYATH SECRETARY. P8: COPY OF APPEAL NO.100/2010 FILED BY RESPONDENTS BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. P9: COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN APPEAL NO.100/2010. P10: COPY OF THE ORDER DATED 23/03/2010 IN APPEAL NO.100/2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 17474 OF 2010 -------------------------------------------- Dated this the 27th day of May, 2011 JUDGMENT The first respondent is the wife of the second respondent. They jointly own and possess 19.14 cents of land comprised in Re.Sy.No. 619/5 of Azhikode South Village near the sea shore within the jurisdiction of the petitioner panchayath. They submitted Ext.P1 application for building permit for constructing a residential house in the said property and the same was rejected as per Ext.P2 on the ground that the property in question situates only 131 metres away from the High Tide Line. Feeling aggrieved by Ext.P2, respondents 1 and 2 approached the Tribunal for Local Self Government Institutions by filing Appeal No.5/2008 and the same was allowed as per Ext.P3. As per Ext.P3, the impugned order viz., Ext.P2 order passed by the Secretary of the petitioner panchayath was set aside and the Secretary was directed to dispose of the application for building permit submitted by respondents 1 and 2 afresh after proper consideration whether the proposed construction would violate the CRZ regulations. Subsequently, respondents 1 and 2 submitted a fresh application for building permit on 16.5.2008. On its receipt, the petitioner panchayath W.P.(C) NO.17474/2010 2 submitted Ext.P4 application along with a copy of the application to the Coastal Zone Management Authority, the third respondent for getting a clarification. Obviously, as per Ext.P4, clarification as to whether permission could be granted to respondents 1 and 2 to carry out construction of the residential building in the property in question was sought for. Thereafter, the third respondent issued Ext.P5 with copy to the petitioner, requesting the fourth respondent to demarcate the correct distance of the construction site from the High Tide Line and to furnish a report to the Government urgently. Such a request was made pursuant to the receipt of Ext.P4. Thereafter, there was no information at all from the third respondent. Since the authorities including the petitioner panchayath did not take a decision in the matter, respondents 1 and 2 started construction of the house on the strength of the deeming provision under Rule 235 K(2) of the Kerala Panchayath Raj Act (for short 'the Act'). After completing the construction, respondents 1 and 2 submitted Ext.P6 application requesting the petitioner panchayath to allot building number and also to grant occupancy certificate. Thereupon, Ext.P7 was issued by the petitioner panchayath intimating the first respondent that on account of non-receipt of clarification from the third respondent, the petitioner W.P.(C) NO.17474/2010 3 panchayath was not in a position to take a decision on the application for occupancy certificate submitted by respondents 1 and 2. Aggrieved by the same, respondents 1 and 2 preferred Appeal No.100 of 2010 before the Tribunal for Local Self Government Institutions and it was allowed as per Ext.P10 order dated 23.3.2010. Ext.P7 dated 16.12.2009 was set aside by the Tribunal and it was further declared that the appellants therein viz., respondents 1 and 2 herein, became entitled to proceed as if occupancy certificate had been duly issued to them in terms of proviso to Rule 22(3) of the Kerala Municipality Building Rules (for short 'the Rules'). The petitioner panchayath filed this Writ Petition challenging Ext.P10 passed by the Tribunal for Local Self Government Institutions and seeking for issuance of a writ of mandamus commanding respondents 3 and 4 to take a decision on the basis of Ext.P4 within a specified period and also to grant permission to the petitioner to consider the application submitted by respondents 1 and 2 for building permit on the basis of the decision to be taken by the third respondent on Ext.P4. 2. Respondents 1 and 2 have jointly filed a counter affidavit in this Writ Petition and a separate counter affidavit has been filed by the third respondent. W.P.(C) NO.17474/2010 4 3. The indisputable position obtained in this case is that respondents 1 and 2 have submitted a fresh application for building permit as early as on 16.5.2008 pursuant to Ext.P3 order of the Tribunal. So far, no decision has been taken thereon. In fact, only a copy of the application submitted by them along with Ext.P4 was forwarded to the Coastal Zone Management Authority for getting a clarification as to whether building permit could be granted to respondents 1 and 2. However, no clarification was so far been given to the petitioner panchayath by the third respondent. Ext.P5 would reveal that on receipt of Ext.P4, the third respondent requested the fourth respondent to demarcate the correct distance of the construction site from the High Tide Line in the area and to furnish a report to the Government. The copy of the minutes of the 26th meeting of the KCZMA appended along with Ext.P5 would reveal the following:- “As per the site plan of the Village Officer, the site is at 211m from the sea and as per panchayat records, it is 131m. During the site inspection, it is found that the site is at about 190 m from the sea.” It is also not in dispute that at no point of time since the submission of application for building permit on 16.5.2008, any communication whatsoever was given, in writing, to respondents 1 and 2 by the petitioner panchayath and in that matter, by any other authority. It is also a fact that W.P.(C) NO.17474/2010 5 in the circumstances, respondents 1 and 2 have commenced and completed the construction of the building in the property in question and thereafter, applied for allotment of building number and also to grant occupancy certificate as per Ext.P6. Ext.P7 is the reply given by the petitioner panchayath. In view of the circumstances explained earlier, no decision could be taken on Ext.P6. The question to be decided in view of the factual position obtaining in this case is whether Ext.P10 is sustainable? For a proper consideration of the said issues, it is relevant to refer to Section 235K(2) of the Act and it reads thus:- “Whether the Village Panchayat does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, and the applicant may proceed to execute the work. But it shall not be so as to contravene any of the provision of this Act or any rules or bye-laws made thereunder.” Paragraph 8 of Ext.P10 order dealt with the issue regarding the entitlement of respondents 1 and 2 to claim the benefit under Section 235K(2) of the Act. The relevant files were produced before the Tribunal. After perusing the files, the Tribunal found that pages 55 and 56 of the relevant file would reveal that the application for building permit was submitted by respondents 1 and 2 on 16.5.2008. On account of the failure on the part of W.P.(C) NO.17474/2010 6 the Secretary of the petitioner panchayath to take a decision thereon, the respondents 1 and 2 had approached the council of the petitioner panchayath. To sustain the said contention, respondents 1 and 2 have produced Exts.R1(a) and R1(b). Ext.R1(a) is the application submitted before the council of the panchayath and Ext.R1(b) is the receipt evidencing the fact that Ext.R1(a) was sent by registered post in the name of the President of the petitioner panchayath. Though such a contention was specifically raised in the counter affidavit filed by respondents 1 and 2, the specific contention that they have approached the council of the panchayath as per Exts.R1(a) has not been refuted by the petitioner panchayath. Admittedly, even thereafter, the council had not taken any decision on the application submitted by respondents 1 and 2. It was considering all such aspects that the Tribunal arrived at the conclusion that respondents 1 and 2 were entitled to effect construction by virtue of the deeming provision under Section 235K(2) of the Act. In view of the factual position obtained in this case, I do not find any reason to disagree with the said finding of the Tribunal. The finding of the Tribunal could be interfered only if it is unsupported by any material. In this case, as already noticed, the said finding of the Tribunal in Ext.P10 is well supported by W.P.(C) NO.17474/2010 7 materials and therefore, calls for no interference at all. 4. After effecting construction on the strength of deemed permit, respondents 1 and 2 have, admittedly, filed Ext.P6 requesting for allotment of building number and also for occupancy certificate. Ext.P7 is the reply given by the petitioner to the first respondent. Evidently, within 15 days from the receipt of such an application, no decision was taken by the secretary of the petitioner panchayath. In that context, it is relevant to refer to proviso to Rule 22(3) of the Rules. It reads as hereunder:- “The Secretary shall, on receipt of the completion certificate and on being satisfied that the construction or reconstruction or addition or alteration has been carried out in conformity with the permit given, issue occupancy certificate in the form in Appendix H not later than fifteen days from the date of receipt of the completion certificate. Provided that if no such occupancy certificate is issued within the said fifteen days, the owner may proceed as if such occupancy certificate has been duly issued to him.” Going by the proviso to Rule 22(3) of the Rules and taking into account the factual position obtained in this case, the Tribunal arrived at the conclusion that first and second respondents are entitled to proceed as if such occupancy certificate had been issued by virtue of proviso to Rule 22 (3) of the Rules. The petitioner did not have a case that within the statutorily prescribed period, a decision on Ext.P6 application was taken W.P.(C) NO.17474/2010 8 and intimated to respondents 1 and 2. Whatever be the reasons, a decision has to be taken by the competent authority on receipt of the application for occupancy certificate. What was intimated to respondents 1 and 2 is that no decision could be taken on Ext.P6 application. In other words, no decision was taken thereon. The petitioner did not have a case that within the time prescribed under the statute or even thereafter, a decision was taken on Ext.P6. When that be the admitted position, I am unable to find fault with the Tribunal in arriving at the conclusion relying the statutory position of law and taking into account the factual situation obtained in this case that respondents 1 and 2 are entitled to proceed as if such occupancy certificate had been issued. I am also not inclined to interfere with Ext.P10 on certain other facts. 5. As already noticed hereinbefore, a counter affidavit has been filed in this Writ Petition by the third respondent as well. In the counter affidavit, it has been stated that the Ministry of Environment and Forests, Government of India have published the CRZ notification, 2011 on 6.1.2011 in supersession of CRZ notification of 1991. As per the said notification, construction/reconstruction of dwelling units in CRZ by traditional coastal inhabitants including fishermen folk could be permitted W.P.(C) NO.17474/2010 9 between 100 m and 200 m from the high tide line along the sea front in accordance with a comprehensive plan prepared by the State Government in consultation with the traditional coastal communities including fisher folks and incorporate the necessary disaster management provision, sanitation and recommended by the concerned State Coastal Zone Management Authority to National Coastal Zone Management Authority for approval by Ministry of Environment and Forests. That apart, it is specifically stated in the said counter affidavit that on the request of the third respondent, the fourth respondent took measurement of the distance of the property in question from the High Tide Line. According to the third respondent, the building constructed by respondents 1 and 2 is 130 metres landward of the High Tide Line. In paragraph 4, itself it is stated that different measurements have been taken by different authorities. As noticed earlier, as per the site plan of the Village Officer, the site is at 211m from the sea and as per panchayat records, it is 131m. During the site inspection, it was found that the site is at about 190m from the sea. Thus, all the measurements would reveal that the building in question constructed by respondents 1 and 2 situates beyond 100 metres landward on the High Tide Line. What is considered as per such notification is with W.P.(C) NO.17474/2010 10 respect to the permission for granting construction and reconstruction. In this case, the question is not with respect to the construction but whether the residential house constructed by respondents 1 and 2 on the strength of the deemed permit need be demolished at this distance of time. True that the petitioner panchayath has not so far issued any notice requiring respondents 1 and 2 to demolish the building in question. However, it is evident from prayer No.3 in the Writ Petition that what was requested by the petitioner is to give permission to the petitioner to take a decision on the application for building permit submitted by respondents 1 and 2. I do not think that at this distance of time, the petitioner panchayath is entitled to the said relief. Evidently, by virtue of the deeming provision under the statute and after considering the factual situation obtained in this case, the Tribunal found that respondents 1 and 2 were justified in commencing and continuing and completing the construction by virtue of the provisions under Section 235K(2) of the Act. The petitioner also admits the position that the construction was already completed. I am of the view that the petitioner is not entitled to the said relief. The further prayer of the petitioner is for issuance of a writ of mandamus commanding respondents 3 and 4 to take a decision on Ext.P4. In fact, what was requested by the W.P.(C) NO.17474/2010 11 petitioner as per Ext.P4 is only a clarification on the question as to whether permission could be granted to respondents 1 and 2 to effect the construction in the site in question. In view of long discussion made hereinbefore, I am of the view that no purpose would be served by issuing such a direction to respondents 3 and 4 at this distance of time especially, considering the fact that the construction was already completed and the Tribunal, as per Ext.P10, found that the petitioner is entitled to proceed as if such occupancy certificate had been issued. The long and short of discussion is that Ext.P10 invites no interference by this Court and this Writ Petition is liable to fail. Accordingly, it is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.17474/2010 12 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.17474/2010 13