IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 WP(C).No. 34072 of 2010(H) --------------------------------------- PETITIONER(S): ----------------------- PALLIKUNNU GRAMA PANCHAYAT, REP. BY ITS SPECIAL GRADE SECRETARY RAGHUDHARAN V., S/O. LATE KOMAN, AGED 49 YEARS, ARAYALA, P.O.AROLI, PAPPINISSERI VILLAGE, KANNUR TALUK, KANNUR DISTRICT. BY ADVS. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): ------------------------- 1. THE DISTRICT SUPERINTENDENT OF POLICE, KANNUR-670 002. 2. THE SUB INSPECTOR OF POLICE, KANNUR TOWN POLICE STATION, KANNUR-02. 3. VINESH BABU, CHAIRMAN, MARAR TRUST, MANAL, ALAVIL P.O., KANNUR-670 008. R1 & R2 BY GOVERNMENT PLEADER SRI. T.K. VIPINDAS R3 BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SRI.ARJUN SREEDHAR SRI.T.K.SANDEEP SRI.ARUN KRISHNA DHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO. 34072/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE NOTICE BEARING NO.7686/2010. P2 COPY OF THE NOTICE DATED 07/11/2010. P3 COPY OF THE LETTER DATED 07/11/2010. P4 COPY OF THE RECEIPT ISSUED BY THE SECOND RESPONDENT. P5 COPY OF THE APPLICATION DATED 08/11/2010. P6 COPY OF THE REPORT DATED 19/11/2010 PREPARED BY ADVOCATE K. SHAJU. P7 COPY OF THE NOTICE DATED 24/11/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts “ CR “ K.M.JOSEPH & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.C.No.34072 of 2010 ---------------------------------------- Dated this the 6th day of December 2010 J U D G M E N T K.M.JOSEPH,J The petitioner has approached this Court seeking the following reliefs: i) To issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents 1 and 2 to take adequate and appropriate steps to implement Ext.P2 notice forthwith as required in Ext.P3 and P4. 2. Briefly put, the case of the petitioner is as follows: 3. The petitioner is the Gramma Panchayath. The 3rd respondent is the present owner of a building. It is alleged that the construction of the building is in violation of the Building Rules. The 3rd respondent somehow managed to influence the then Secretary of the Panchayat and obtained a building permit. Ext.P1 notice was issued to show cause. Noticing that despite the receipt of Ext.P1 notice, the 3rd respondent is completing the W.P.C.No.34072 of 2010 2 construction work, Ext.P2 notice was issued. Though it was attempted to be served in person, it was not accepted and the notice was affixed on the building in the presence of two witnesses. Despite Ext.P2 notice, the 3rd respondent continued the work. Hence Ext.P3 letter was sent to the 2nd respondent police officer seeking assistance to take appropriate action to implement Ext.P2. The second respondent acknowledged receipt; but despite the same, did not take action. Hence the petitioner moved the Superintendent of Police vide Ext.P5 application and has come before us. 4. A counter affidavit is filed by the 3rd respondent wherein it is inter alia stated as follows. The land on which the construction is made originally belonged to one Sivanandan who executed a gift deed in favour of the trust by name K.G.Marar Charitable Trust. The 3rd respondent is the Chairman of the Trust. After the execution of the said deed, a building plan was submitted for construction of a new building after demolishing the old one. The construction started during the period 2008. After completing the construction, the building was numbered during the very same year. Ext.R3(a) and R3(b) are produced as W.P.C.No.34072 of 2010 3 tax receipts. The allegation as to illegal construction is raised only during 2010. Ext.P1 notice was served only on 09/11/2010. The deponent submitted Ext.R3(c) reply and before the deponent could make a reply on Ext.P1, the Panchayat has come before this Court. It is stated that the entire building construction was completed long back in 2008 and the building will be numbered only after obtaining the completion certificate. The construction is made strictly in accordance with the approved plan. Assuming without admitting there is something illegal in the construction the 3rd respondent as well as the Panchayat has got their legal remedies. But, before proceeding with any action as against the 3rd respondent the Panchayat is expected to hear the 3rd respondent. 5. A reply affidavit is filed wherein it is inter alia stated as follows. The 3rd respondent did not honour the undertaking given to this Court through counsel that he will not proceed with the construction and has violated the undertaking. An Advocate was appointed by the Panchayath to conduct a local inspection and Ext.P6 report was given by the Advocate to the Panchayat. The Panchayat issued Ext.P7 notice dated 24/11/2010 under W.P.C.No.34072 of 2010 4 Section 235 W of the Kerala Panchayat Raj Act read with Rule 18 of Kerala Municipal Building Rules. The 3rd respondent, if he is aggreived, can seek remedies under the Panchayat Raj Act. Other allegations are also made. 6. We have heard the learned counsel for the petitioner, the learned counsel for the 3rd respondent and the learned Government Pleader. The learned counsel for the 3rd respondent would reiterate that the construction is over in the year 2008 and on the basis of completion certificate, it was numbered. It was submitted that no construction has been carried out as alleged by the petitioner and Ext.P1 was received only on 09/11/2010 and for that, reply was given within time and the Panchayat is bound to consider the same. 7. 11. The learned Government Pleader points out that Section 252 of the Panchayat Raj Act reads as follows: Duties of police officers.-(1) It shall be the duty of every police officer.- (a) to communicate without delay to the President and Secretary any information which he receives of the design to commit or of the commission of any offence under this Act or any rule or bye-law made thereunder; and W.P.C.No.34072 of 2010 5 (b) to assist the President or the Secretary or any officer of the Panchayat demanding in writing his aid for the lawful exercise of any power vesting in the President, the Secretary or in such officer or employee of the Panchayat under this Act or any rule or bye- law made thereunder, or for the performance of any function entrusted to any of them. (2) Any police officer who omits or refuses to perform any duty imposed on him by this Act shall be deemed to have committed an offence under Section 41 of the Kerala Police Act, 1960 (5 of 1961). The learned Government Pleader argues that the police officer is only obliged to assist the President or the Secretary on being demanded in writing for his aid for the lawful exercise of any power vested in the Panchayat. He would point out that Ext.P1 is dated 04/11/2010. Time was granted for the 3rd respondent to give his objections under Rule 17 of the Municipal Building Rules. He would further submit that Ext.P2 is dated 07/11/2010. At the time Ext.P2 was given, it is the case of the learned Government Pleader that time given under Ext.P1 had not expired. W.P.C.No.34072 of 2010 6 8. Under Section 235 W, there is specific power with the Panchayat to issue notice on noticing that construction is being carried out. Section 235 W reads as follows: 235 W. Demolition or alteration of building works unlawfully commenced, carrying on or completed.- (1) Where the Secretary is satisfied that - (i) the construction, or reconstruction or alteration of any building - (a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the Village Panchayat; or (b) is being carried on, or has been completed otherwise than in accordance with the plans, specifications or information on which such permission or decision was based; or (c) is being carried on, or has been completed in contravention of any of the provisions of this Act or any rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made under this Act, such rule, bye-law or order; or W.P.C.No.34072 of 2010 7 (ii) any alteration required by notice issued under Section 235 N has not been duly made; or (iii) any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions of Section 235-V, he may make a provisional order requiring the owner or the person for whom the work is done, to demolish the work done, or any part of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alteration as may be necessary to bring the work in conformity with the provisions of this Act, bye- laws, rules, direction, order or requisition as aforesaid or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work.” (emphasis supplied) 9. There are subsequent provisions which relate to serving of copy of the provisional order made under sub-section (1), power of the Secretary to confirm the order or modify the W.P.C.No.34072 of 2010 8 order requiring the owner of the person for whom the work is done to pay the cost to the satisfaction of the Secretary. It also provides for prosecution provisions, inter alia. Rule 17 of the Municipal Building Rules provides for action against unauthorised construction. It inter alia reads as follows: 17. Deviation during construction and power of Secretary to require alteration in work.- (1) The applicant shall, if he intends to make any deviaion from the approved plan of specification during the execution of any development or redevelopment of land or construction or reconstruction or alteration of any building, submit revised plans and drawings showing the deviation and obtain revised permit: Provided that no permit is necessary for effecting minor deviations such as shifting the position of access to plots in the case of layouts and shifting the position of rooms, stairs, lifts, windows, doors or ventilators and their sizes in the case of building constructions if they do not conflict with these rules: Provided further that the deviations mentioned in the above proviso shall be incorporated in the completion plan and W.P.C.No.34072 of 2010 9 submitted along with completion certificate. (2) Where it comes to the notice of the Secretary that a work- (a) is not in accordance with the plans or specifications approved; (b) is in contravention of any of the provisions of the Act, these rules, bye-law or declaration made thereunder; he may, by notice, require the person for whom such work is done- (i) to make such alterations as may be specified in the notice with the object of bringing the work in conformity with the plans or specifications approved or the provisions so contravened; or (ii) to show cause why such alterations should not be made; within such period as may be specified in the notice: Provided that any construction carried out in deviation of the approved plan or specific conditions shall not be required to be altered if such construction does not violate the provisions or specific conditions contained in the Act or these rules. W.P.C.No.34072 of 2010 10 We extract the relevant provisions of Rule 18 of the Municipal Building Rules also. 18. Demolition or alteration of work unlawfully commenced, carried on or completed.- (1) Where the Secretary is satisfied - (i) that the construction, reconstruction or alteration of any building or digging of any well - (a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the Council; or (b) is being carried on, or has been completed otherwise than in accordance with the plans or specifications on which such permission or decision was based; or (c) is being carried on or has been completed in breach of any of the provisions contained in the Act or these rules or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made thereunder; or (ii) that any alteration required by notice issued regarding deviation has not been duly made; or W.P.C.No.34072 of 2010 11 (iii) that any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions regarding accessory building and sheds, he may make a provisional order requiring the owner or the person for whom the work is done to demolish the work done or so much of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alterations as may, in the opinion of the Secretary, be necessary to bring the work in conformity with the provisions of the Act, these rules, bye-laws, direction, order or requisition as aforesaid, or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work.” 10. Actually power under Section 235 W of the Panchayat Raj Act, insofar as it empowers the Secretary of the Panchayat to direct that until the order is complied with, he shall refrain from proceeding with the work is contained in Rule 18 also of the Municipal Building Rules. The learned counsel for W.P.C.No.34072 of 2010 12 the petitioner would submit that the petitioner had proceeded under rules 17 and 18 of the Municipal Building Rules when they issued Exts.P1 and P2. 11. It is necessary to notice the relevant facts. Ext.P1 is issued on 04/11/2010 as is clear from Ext.P2. By Ext.P1, the 3rd respondent was called upon to show cause. Seven days time was given. According to the petitioner, the 3rd respondent however proceeded with the construction. It is accordingly that Ext.P2 dated 07/11/2010 was affixed. In Ext.P2, there is reference made to Ext.P1 and also the fact that no reply has been received. Secondly, he was called upon to desist from further construction. It is noticing that further construction was going on, Ext.P3 was given to the police officer under Section 252 of the Kerala Panchayat Raj Act. Therefore, when Ext.P3 was addressed to the Sub Inspector of Police, he had the duty to look into it as it was legally supportable under Section 235 W or under Rule 18 of the Municipal Building Rules read with Section 252 of the Kerala Panchayat Raj Act and he was obliged to exercise his powers to see that the construction being made by the 3rd respondent is stopped. The very purpose of incorporating Section 252 is to see W.P.C.No.34072 of 2010 13 that police assistance is given in cases inter alia where the party falls within the mischief of Section 235 W or Rule 18 of the Municipal Building Rules. It is to see that the rule of law is upheld and the force of the State is made available to the officers of the local body to see that their functions and powers are enforced in a lawful manner. In such circumstances, the contention made by the petitioner cannot be treated as ill founded. 12. However, in the facts of this case, it is the case of the 3rd respondent as also the learned Government Pleader respectively that there was no further construction carried out and that assistance was in fact granted and no further construction was carried out. Of course, we notice that Ext.P7, purports to be a provisional order under Section 235 W of the Kerala Panchayat Raj Act. It is issued on 24/11/2010. This writ petition is filed in fact on 10/11/2010. If the construction was actually going on, the petitioner cannot be faulted for approaching this Court on 10/11/2010, having regard to Exts.P2 and P3. W.P.C.No.34072 of 2010 14 13. We record the submission of the learned counsel for the 3rd respondent that they will not proceed with further construction in the building. We direct that in case the 3rd respondent, contrary to the submissions made in the court, were to proceed with the construction which is stayed under Ext.P2, the 2nd respondent will give assistance and see that no such construction is proceeded with by the 3rd respondent. We further make it clear that the Panchayat will necessarily have to consider the objection of the 3rd respondent also in proceedings which has already been initiated and opportunity shall be given to make good the contentions of the 3rd respondent and order can be passed in accordance with law in the said proceedings. We dispose of the writ petition as above. (K.M.JOSEPH, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.34072 of 2010 15 W.P.C.No.34072 of 2010 16 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010