IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 WP(C).No. 30229 of 2009(W) ----------------------------------------- PETITIONER(S): ------------------------ RAJI VARGHESE, S/O.M.J.VARGHESE, PULIPARA VEEDU,KOMALLOOR MURI, CHUNNAKKARA VILLAGE, ALLEPPEY DISTRICT PRESENTLY RESIDING AT 52 GLEANNARI,DURID VALLEY, CABIN TEELY, DUBLIN 18, IRELAND THROUGH HIS POWER OF ATTORNEY SOLOMON VARGHESE, S/O.M.J.VARGHESE, AGED 48 YEARS, RESIDING AT PULIPARA VEEDU, KOMALLOOR MURI, CHUNNAKKARA VILLAGE,ALLEPEY DISTRICT. BY ADV. MR.A.SHAFEEK (KAYAMKULAM) RESPONDENT(S): -------------------------- 1. MAVELIKARA THEKKAKKARA GRAMA PANCHAYAT, PALLARIMANGALAM P.O., ALLEPPEY DISTRICT-690107 THROUGH ITS SECRETARY. 2. THE SECRETARY, MAVELIKARA THEKKAKKARA GRAMA PANCHAYAT, PALLARIMANGALAM P.O., ALLEPPEY DISTRICT-690 107. 3. THE PRESIDENT, MAVELIKARA THEKKAKKARA GRAMA PANCHAYAT, PALLARIMANGALAM P.O., ALLEPPEY DISTRICT-690 107. 4. AJAYAKUMAR.K.GURUSATHANAM, THEKKEKKARA, KURATHIKAD P.O., MAVELIKKARA-690 107. R1 & R2 BY ADV.MR.SAJU JOHN R3 BY ADV.MR..GEORGE VARGHESE(PERUMPALLIKUTTIYIL) , MR.GEORGE RAJU. SMT.SURYA SASI. R4 BY ADV.MR.A.R.DILEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30229/2009 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT SHOWING THE NUMBER OF THE BUILDING. P2: PHOTOGRAPHS OF THE BUILDING TAKEN AT THE TIME OF PURCHASE OF THE BUILDING BY THE PETITIONER. P3: COPY OF THE REPLY DTD. 14/10/2009 SENT BY THE 2ND RESPONDENT TO THE PETITIONER. P4: PHOTOGRAPHS SHOWING THE CONSTRUCTION MADE BY THE PETITONER AT THE 1ST FLOOR. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE STOP MEMO NO.A4-3077/09 DTD. 15/10/2009 ISSUED BY THE 2ND RESPONDENT. R2(B): COPY OF THE ORDER DTD. 15/10/2009. R3(A): COPY OF RESOLUTION NO.I (1) DTD. 13/11/2009 OF MAVELIKARA THEKKEKKARA GRAMA PANCHAYATH. R3(B): COPY OF MINUTES OF MEETING DTD. 20/12/2005. R3(C): COPY OF PHOTOGRAPHS SHOWING THE LIE AND LOCATION OF THE BUILDING. R3(D): COPY OF MEMO DTD. 10/11/2009 ISSUED TO THE SECRETARY. R3(E): COPY OF RETURN AND THE ENDORSEMENT EVIDENCING REMITTANCE OF INSTALLMENTS. R3(F): COPY OF ORDER NO.A4.3077/09 DTD. 15/10/2009. R3(G): COPY OF NOTICE DTD. 15/10/2009. R4(A): COPY OF ORDER NO.A1-3077/2009 DTD. 15/10/2009. R4(B): COPY OF ORDER DTD. 15/10/2009. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.30229 OF 2009 (W) -------------------------------------------------- Dated this the 12th day of January, 2010 J U D G M E N T The prayer in this writ petition is to direct the 2nd respondent not to prevent the petitioner from undertaking further construction of the side walls, on the first floor of the building owned by him. 2. The facts which led to the filing of this writ petition are, that the building which includes five shop rooms in the ground floor and structure on the first floor, presently owned by the petitioner, was originally constructed by one Mr.Lalchand. It is on record that the construction was completed in 1999 and the rooms in the ground floor were numbered by the Panchayat during the year 2000-01. From 2000-01, rooms were also assessed for the purpose of building tax and tax is being paid since then. While so, on 02/04/2008, the petitioner purchased the building and 2.5 ares of land, where it is situated. He wanted to complete the remaining work on the first floor by enclosing and partitioning it into rooms. By this time, the provisions of the Kerala Municipal Building Rules were implemented within the area of the Panchayat with effect from WPC.No. 30229/09 2 20/06/2007. Therefore, the petitioner made an application to the respondent Panchayat for issuing the necessary building permit. 3. In paragraph 5 of the counter affidavit filed by the second respondent, the Secretary of the Panchayat, it is stated that on receipt of the application, she verified the building and issued Ext.P3 communication permitting the petitioner to carry out the works, which according to her, were permissible under Rule 10(iii) of the Kerala Municipal Building Rules, 1999. The petitioner states that on the strength of Ext.P3, he mobilised materials and commenced work. It is revealed from paragraph 6 of the counter affidavit filed by the Secretary of the Panchayat, that when the petitioner commenced work, the 3rd respondent, the President of the Panchayat, “informed” her that the building was constructed in violation of Section 220(b) of the Kerala Panchayat Raj Act, 1994, and that therefore, she issued Ext.R2(a) stop memo and Ext.R2(b) cancelling Ext.P3 permitting the petitioner to commence the work. 4. Here in this context, it should be stated that these orders have also been produced by the 4th respondent along with his counter affidavit as Exts.R4(a) and R4(b), and in the affidavit filed in WPC.No. 30229/09 3 reply thereto, the petitioner has denied service of these communications on him. Be that as it may, the petitioner proceeded with the work and on 16/10/2009, according to the petitioner, the Secretary came to the site with police and forced him to stop further works. Exts.P2 photographs of the building show the original position of the building when the petitioner purchased the same. Similarly Ext.P4 photograph shows the building after the work was forcibly stopped at the instance of the Secretary of the Panchayat. It is at that stage, the writ petition has been filed by the petitioner, alleging that it was at the instance of respondents 3 & 4, the President and the ward member of the Panchayat, that the Secretary forcibly stopped him from continuing the works on the 1st floor of the building. 5. The learned counsel for the petitioner submits that the building in its original form with the shop rooms in the ground floor and the structure of the first floor was completed way back in 1999, which was much prior to the implementation of the Kerala Municipal Building Rules with effect from 20/06/2007. It is stated that thereafter he is entitled to make additions to the existing building in WPC.No. 30229/09 4 view of the provisions contained in Rule 100 of the Kerala Municipal Building Rules, 1999. He also placed reliance on the judgment of this Court in Heera Construction (P) Ltd. v. Corporation of Thiruvananthapuram (2008(3) KLT 553) to contend that having acted upon Ext.P3, the Panchayat could not have gone back from the stand it took. He also referred to Section193(3)(b) of the Kerala Panchayat Raj Act to contend that the President could not have interfered with the executive functions of the Secretary. 6. In the counter affidavit filed by the 2nd respondent, the Secretary of the Panchayat, she seeks to justify her action by stating that immediately after Ext.P3 was issued, she was informed about the illegal construction of the building, and that thereupon she issued Exts.R2(a) & R2(b) orders stopping further works. It is stated that she has not committed any illegality in doing so. 7. The 3rd respondent is the President of the Panchayat. He has raised two preliminary objections. One is that against the impugned action of the Panchayat, statutory remedy of appeal to the Tribunal for Local Self Government Institutions is available to the petitioner. It is stated that since an affective alternate remedy is WPC.No. 30229/09 5 available, the writ petition should not be entertained by this Court. He also accused the petitioner of having suppressed material facts. According to him, though Exts.R2(a) and R2(b) were served on the petitioner on 15/10/2009, the day next to the date on which Ext.P3 was issued, the petitioner did not disclose about Exts.R2(a) & R2(b) when the writ petition was filed on 23/10/2009. For these two reasons, according to him, the writ petition is liable to be dismissed. On merits, the learned counsel contends that the work undertaken by the petitioner was in violation of Sections 220(b) and 235(v) of the Kerala Panchayat Raj Act and therefore, the Panchayat had passed Ext.R2(b) proceedings against the unauthorised constructions within the Panchayat area. He also placed considerable reliance on the Apex Court judgments in Royal Paradise Hotel (P) Ltd. v. State of Hariyana & Others (2006(7) SCC 597) and Priyanka Estates International Pvt.Ltd. v. State of Assam (2010(1) KLT Short note 6). The learned counsel for the 4th respondent also raised similar contentions. 8. I have considered the submissions made. WPC.No. 30229/09 6 9. At the outset, it should be mentioned that, even according to the respondents, the building in question, with the shop rooms in the ground floor and the structure on the first floor, without walls enclosing or separating it, was constructed by the previous owner way back in 1999. Soon thereafter, the shop rooms in the ground floor were assigned building numbers, and it is so stated in Ext.P1 communication issued by the Secretary of the Panchayat and also in the counter affidavit filed by the Secretary. These rooms were assessed to Building Tax, which is being paid. Respondents 3 & 4 also have no case on the contrary. Despite Ext.R3(b) resolution of the Panchayat to take action against irregular constructions, no steps were taken against the building in question. Even during the course of the submissions in this case, both the Secretary and the President of the Panchayat confirmed this factual position. Both of them made it clear that even though, according to them, the construction of the building was in violation of Section 220(b) of the Act, the Panchayat has not taken any action against the building, and no action is even contemplated against the building. On the other hand, according to them, they are not WPC.No. 30229/09 7 against the existing building, but are only against any further construction in the building. 10. In view of the above stand taken by the respondents, I will proceed on the basis that the respondent Panchayat has recognised the legal existence of the building. Now the question is whether the petitioner, who is the subsequent purchaser of the building, should be permitted to enclose and separate the structure on the first floor by putting up walls and windows, make use of the same, and whether by such action of the petitioner, any prejudice is likely to be caused to the Panchayat justifying the impugned orders. 11. As already stated, it is not in dispute that the structure of the first floor was in existence at the time when construction of the building was completed in 1999 and when the petitioner purchased the building. The work that is done by the petitioner is that he has fixed windows and has attempted to enclose and separate the structure on the 1st floor into rooms. There is no allegation that the plinth area of the building has been increased in any manner. By doing this work, all that is achieved by the petitioner is that he will be able to let out the 1st floor and make use of the same and earn WPC.No. 30229/09 8 income for his investment. This, in my view, will not cause any prejudice to the Panchayat or anybody else. From the photographs produced by both sides, what is obvious is that except a bus shelter, which is situated adjacent to the building of the petitioner, rest of the buildings including that of the petitioner are all constructed in one alignment. Panchayat has no case that the other buildings have not been numbered or that any action has been taken against the other buildings, on the allegation that those buildings have been constructed in violation of the provisions contained in the Panchayat Raj Act or the Kerala Municipality Building Rules. If that be so, I see absolutely no justification for the stand of the Panchayat that any particular violation has been committed by the petitioner alone, requiring him to be isolated from the other building owners and to confine proceedings against the petitioner's building alone. Even otherwise I feel what the petitioner propose to do was permissible in terms of Rule 100 of the Kerala Municipality Building Rules which provides special provision for addition or alteration of the existing buildings. In my view, this is a case WPC.No. 30229/09 9 where the Panchayat has to take pragmatic view of the matter and not technical and negative view, causing hardship to citizen. I should also mention that when the petitioner proposed to commence work on the first floor of the building he made an application for building permit. On its receipt, the Secretary of the Panchayat issued Ext.P3 informing that no permit is necessary and that the petitioner could carry out the work, as it was permissible under Rule 10(iii) of the Kerala Municipality Building Rules. It was acting upon Ext.P3 order that the petitioner commenced work. Therefore the petitioner cannot be faulted for having commenced the work. In view of all the above reasons, I feel that the petitioner is entitled to succeed. Counsel for the 3rd respondent raised the plea that since alternate remedy of appeal is available the writ petition is not maintainable. This writ petition was admitted, parties entered appearance, filed their affidavits and lengthy arguments were heard. Therefore, I do not think it proper to relegate the petitioner to seek his statutory remedies at this stage. Counsel further contended that the construction of the Ist Floor is in violation of Section 220(b) of th Panchayat Raj Act 1994 and therefore, WPC.No. 30229/09 10 further construction cannot be permitted. I have already taken note of the case of the Panchayat that they do not propose to proceed against the existing building by the petitioner. This means that they are accepting the legal existence of the building. Having taken such a stand, it is now not open to the Panchayat to again rely on Section 220(b) and contend that they will not allow petitioner to carry on with the work. It was argued that petitioner has suppressed facts and therefore writ petition should be rejected. This argument is raised on the basis that Ext.R2(b) and (c) were suppressed by the petitioner. Case of the petitioner is that these orders were not served on him. Panchayat or respondents 3 and 4 have not produced anything to prove that these documents were served on the petitioner. In such a factual situation, I cannot accept the case of the petitioner. Accordingly the writ petition is disposed of directing that the Secretary to the Panchayat will reconsider the application made by the petitioner on 20.9.2009 for building permit and mentioned in Ext.P3 order and and if the application is in order, grant building permit enabling the petitioner to convert the first floor of the building referred to above into rooms, without WPC.No. 30229/09 11 increasing its plinth area in any manner. Orders shall be passed as expeditiously as possible and at any rate within 2 weeks from the date of production of a copy of the judgment. Once order is passed as above, it will be open to the petitioner to commence construction on the Ist floor of the building, in accordance with law. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/