IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 WP(C).No. 9214 of 2007(V) -------------------------------------- PETITIONER: ------------------- THAMPY A. VARGHESE, AGED 62 YEARS, S/O. A.V.VARGHESE, 12/4A, SUSAN VILLA, MOOLEPADAM ROAD, VAZHAKKALA. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENTS: ------------------------- 1. THRIKKAKKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, THRIKKAKKARA, KAKKANAD P.O., KOCHI-682 030. 2. JOSE ANTONY, S/O. GEORGE JACOB, ASWIKA MARIA, 39/4186-A, FIRST FLOOR, M.G.ROAD, ERNAKULAM, COCHIN. 3. THE SENIOR TOWN PLANNER, TOWN PLANNING DEPARTMENT, ERNAKULAM. R1 BY ADV.SRI.S.SHANAVAS KHAN R2 BY ADV. SRI.D.KISHORE R3 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.9214/2007 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION WAS PUBLISHED IN THE KERALA GAZETTE (EXTRAORDINARY) NO.1824, ON 15TH NOVEMBER, 2006. EXT.P2: COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT DTD. 15/12/2006. EXT.P3: COPY OF THE CERTIFICATE ISSUED BY THE 1ST RESPONDENT, DTD. 14/02/2007. EXT.P4: PHOTOGRAPHS OF THE PROPOSAL MADE FOR CONSTRUCTIONS BY THE 2ND RESPONDENT. 1ST RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF CERTIFICATE DTD. 14/11/2006 ISSUED BY SECRETARY (SPECIAL GRADE), THRIKKAKARA GRAMA PANCHAYAT. EXT.R1(B): COPY OF CIRCULAR DTD. 3/07/2007 ISSUED BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT. 2ND RESPONDENT'S EXHIBITS: EXT.R2(A): COPY OF THE CERTIFICATE DTD. 14/11/2006 WITH APPROVED SITE PLANS. EXT.R2(B): COPY OF THE CERTIFICATE DTD. 25/01/2007 WITH FIRE FIGHTING EQUIPMENTS INSTALLATION PLAN APPROVED BY THE DIRECTOR, FIRE & RESCUE SERVICES. /TRUE COPY/ P.S.TO JUDGE Kss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 9214 OF 2007 ----------------------------------------------- Dated this the 15th day of February, 2008 J U D G M E N T The petitioner, a resident ofThrikkakara Grama Panchayat challenges in this writ petition Ext.P3 which is described as a no objection certificate issued by the Thrikkakara Panchayat in favour of the 2nd respondent. Ext.P3 says that since Kerala Municipality Building Rules have not been enforced within the Panchayat area, the permission from the Panchayat is not necessary for the construction of building on land belonging to the 2nd respondent. The petitioner points that the proposal of the 2nd respondent is to construct a nine storeyed building on his plot which has extent of just 18.01 cents and that the floor area ratio taken for the proposed construction is 3.93 and the coverage is 55%. According to him, the Kerala Municipality Building Rules 1999 have been made applicable to the Panchayat and therefore in accordance with the plan submitted by the 2nd respondent construction is not legally possible. Petitioner has produced Ext.P1 notification dated 6-11-2006 by which the Government of Kerala extended the Kerala Municipality Building Rules to Thrikkakara Panchayat with WP(C)N0.9214/07 -2- effect from 15-11-2006. Ext.P2 is the letter issued by the third respondent Senior Town Planner to the first respondent Panchayat communicating Ext.P1 to the first respondent. Petitioner alleges that it is ignoring Exts. P1 and P2 that Ext.P3 has been issued in favour of the 2nd respondent. The petitioner states that Ext.P3 was issued on 14-2-07. The petitioner has produced Ext.P4 series of photographs to show that even on 16-3-2007 the date on which the photographs are claimed to have been taken, only the preliminary work relating to the construction has been started. Raising two grounds the petitioner prays for a declaration that Ext.P3 certificate is arbitrary and illegal and the constructions made by second respondent are in violation of Kerala Municipality Building Rules. Petitioner also prays that the Panchayat be directed to take immediate steps for obstructing the construction and to demolish the constructions already made. Petitioner also prays that Ext.P3 certificate be quashed. 2. Separate counter affidavits have been filed by the Panchayat and by the second respondent. According to the Panchayat at the time when the 2nd respondent had submitted application seeking permission to construct a 9 storeyed building the Kerala Municipality Building Rules were not made WP(C)N0.9214/07 -3- applicable to Thrikkakara Grama Panchayat. Under such a situation when the application under section 235F submitted by the 2nd respondent came up for consideration, the only question to be considered was whether the proposed construction would violate Section 220(b). This was why the no objection certificate was issued to the 2nd respondent on condition that distance rule of 3 metres shall not be violated. No objection certificate was issued on 14-11-2006 and Ext.R1 (a) produced along with the counter affidavit is the true copy of the certificate. The Panchayat has also produced Ext.R1(b) circular dated 3-7-07 of the Local Self Government Department imposing certain conditions on persons who have obtained N.O.C. on or before 1-8-2006. As regards Ext.P3 produced by the petitioner it is contended that Ext.P3 is not a true copy of no objection certificate issued from the Panchayat. Ext.P3 was issued by the Town Planner and that bears endorsement of the Town Planner. The endorsement was made when certain documents were seized from the Panchayat office for administrative purposes. The date shown on Ext.P3 is not the date of the certificate, but is the date on which seizure was made and not the date of which no objection certificate was issued. According to the Panchayat since Annexure R1 (b) WP(C)N0.9214/07 -4- circular has been issued by the Government 2nd respondent is bound to comply with that circular and in terms of clause (5) he is liable to remit fees to the Panchayat. 3. The second respondent in his counter affidavit claims that the plan for construction of the 9 storeyed flat was submitted for approval under section 235 F of the Panchayat Raj Act on 14-11-2006 and that it is claimed that after site inspection and on being satisfied about the requirements as per the Act the first respondent approved the plan and issued no objection certificate, copy of which is produced as Ext.R1(a). Affidavit stoutly denies the allegation that it was on 14-2-2007 that no objection certificate was issued. R2(a) was the no objection actually issued and on the basis of that, construction was commenced on 14-11-2006. The Kerala Municipality Building Rules do not apply to the construction since those rules were made applicable to the Panchayat only with effect from 15-11-2006. There is no infirmity at all regarding Ext.R2 (a) which was issued on 14-11-2006. Ext.R2(a) has been issued under statutory powers conferred on the Secretary of the first respondent Panchayat and therefore second respondent has every right to carry out constructions on the basis of R2(a). Second respondent has produced Ext.R2(b) WP(C)N0.9214/07 -5- certificate dated 25-1-2007 with fire fighting equipments installation plan approved by the Director of Fire and Rescue Services. It is pointed out that on the basis of R2(a) the second respondent applied for N.O.C. from the Fire and Rescue Services and it is accordingly that R2(b) was issued. 4. I have heard submissions of Sri.P.B.Sahasranaman, counsel for the petitioner, Sri.D.Kishore, counsel for the party respondent and Sri.S.Shanavas Khan, standing counsel for the Panchayat. Sri. Shanavas Khan made available for my perusal the Panchayat file relating to the application submitted by the second respondent along with the plan for approval under section 235F. Importantly the original of Ext.P3 certificate containing endorsement of the Senior Town Planner on 14-2- 2007 was also made available. Sri. Kishore made available for my perusal the soil investigation report prepared by M/s. Master Engineering Services in October 2006 on the basis of the 2nd respondent's application regarding plot where the construction is taken up. He also made available the materials register maintained by the 2nd respondent which would show that cement, steel, sand and other materials were begun to be collected way back on 8-11-2006. 5. Submissions of learned counsel were on the basis of WP(C)N0.9214/07 -6- the pleadings raised by their respective parties. Sri.P.B.Sahasranaman would very fervently submit that there are suspicious circumstances shrouding this case. Land has purchased by the 2nd respondent on 14-11-2006. Plan for construction is submitted to the Panchayat on 14-11-2006 and that on the very same day N.O.C. is issued to the second respondent and that on the very next day the Kerala Municipality Building Rules have been extended to the Panchayat. Mr. Sahasranaman's ultimate submission was that the claim of the 2nd respondent that the construction has proceeded beyond the ground level on the date on which Ext.R2(b) circular was promulgated is wrong and therefore the third respondent should be directed to look into the matter. Having considered the rival submissions addressed at the Bar in the light of the materials placed on record and made available for perusal I am not inclined to accede even to the request of Mr.Sahasranaman to direct the third respondent to look into the matter. The main premise on which the writ petition is instituted is that on 14-2-2007 long after the Kerala Municipality Building Rules were extended to the Thrikkakara Panchayat, the Panchayat has illegally issued Ext.P3 N.O.C. to the 2nd respondent. I have no difficulty to accept the case of the WP(C)N0.9214/07 -7- 2nd respondent that Ext.P3 is not a true copy of the no objection certificate actually issued. No objection certificate actually issued is Ext.R1(a) and R2(b) which was issued on 14-11-2006. R2(b) clearly shows that long prior to 14-2-07, the petitioner has been issued with the N.O.C. It will of course be seen that the Panchayat was very quick to act on the request of the 2nd respondent for issuance of N.O.C. The reasons are not difficult to guess. Ext.P1 Government notification was promulgated on 6-11-2006 and the same was widely published in the press also. There is no serious objection to the submission of Sri.Kishore that much earlier, pursuant to an agreement that the 2nd respondent had been put in possession of the property. Documents like the materials register will go to support the case of the 2nd respondent that the construction had started even earlier. Since Ext.P1 Government notification was in the air even much prior to its actual promulgation and since Ext.P1 itself was to come into effect on 15-11-06 I am inclined to accept the case of the 2nd respondent that he hurried with the matter and that the construction has proceeded beyond the ground level when Ext.R1(b) circular was issued by the Government. I record the submission of Mr.Kishore that the constructions can be governed by R1(b) and any subsequent WP(C)N0.9214/07 -8- circular issued by the Government. 6. Under these circumstances I decline the reliefs prayed for by the petitioner. But I dispose of the writ petition directing the Panchayat to ensure that the 2nd respondent does not violate R1(b) circular and ccirculars if any issued by the Government in clarification of Ext.P1 notification and R1(b) circular. (PIUS C.KURIAKOSE, JUDGE) ksv/15208