IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 WP(C).No. 32695 of 2008(P) ---------------------------------------- PETITIONER(S): ------------------------ DAVID ANTO, S/O. ANTONY, EDAKALATHUR HOUSE, MUNDUR P.O., THRISSUR 680 541. BY ADV. SRI.P.K.SURESH KUMAR SMT.P.S.SHEEJA RESPONDENT(S): ---------------------------- ADAT GRMA PANCHAYATH, P.O. PURANTTUKARA- 680 551, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.JIJO PAUL SRI.MOHAN C.MENON FOR ADV.COMMISSIONR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2011,ALONG WITH WPC NO.496 OF 2009 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.32695/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE POSSESSION CERTIFICATE NO.3674/2007 DATED 17/10/07 OF VILLAGE OFFICER, PURANTTUKARA. P2 COPY OF THE APPLICATION FOR PERMIT/REGULARISATION DATED 26/10/2007 SUBMITTED BY THE PETITIONER. P3 COPY OF THE ORDER NO.BI-560/07 DATED 31/10/07 ISSUED BY THE RESPONDENT P4 COPY OF THE ORDER IN APPEAL NO.521/07 DATED 21/2/2008 OF LSGT, THIRUVANANTHAPURAM. P5 COPY OF THE REPRESENTATION DATED 19/5/2008 SUBMITTED BY THE PETITIONER. P6 COPY OF THE ORDER DATED 14/7/2008 ISSUEDBY THE SECRETARY OF THE RESPONDENT PANCHAYATH. P7 COPY OF THE PLAN SUBMITTED BY GLOBAL DIGITAL LAND SURVEYS. P8 COPY OF THE ORDER DATED 29/9/2008 IN APPEAL NO.424/2008 PASSED BY LSGT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE REPORT OF THE HEAD OF DEPARTMENT OF CIVIL ENGINEERING DEPARTMENT, I.E.S. COLLEGE OF ENGINEERING, CHITTILAPPILLY DATED 8/07/08. ADVOCATE COMMISSIONER'S ANNEXURES: ANNEX 1 COPY OF THE VILANGUR KUNNU FROM THE SOUTH ANNEX II COPY OF THE SKETCH SHOWING THE HILL AND THE MAIN LANDMARKS ALONG WITH THE PROPERTIES OF THE PARTIES IN THE WPC. ANNEX III COPY OF THE PLOT OF THE RESPONDENTS IN WP(C) 497/2009 ANNEX IV COPY OF THE WORK MEMO OF THE RESPONDENTS IN WP(C)497/2009 ANNEX V COPY OF THE WORK MEMO OF THE RESPONDENTS IN WP(C) 496/2009 ANNEX VI COPY OF THE WORK MEMO OF THE PETITIONERS IN WP(C) 496, 497/2009 AND RESPONDENT IN WP(C) 32695/2008 ALONG WITH THE REPORT AND SKETCH OF HEAD OF THE DEPARTMENT, IES COLLEGE OF ENGINEERING. 2/- -2- WP(C)NO.32695/2008 ANNEX VII COPY OF THE SHOWING THE MEASUREMENT IN WP(C)NO.497/2009 ANNEX VIII COPY OF THE PLAN OF THE LAND OF PETITIONER IN WP(C) NO.32695/2008. ANNEX IX COPY OF THE LAND INVOLVED IN WP(C)496,497/2009 ANNEX X COPY OF THE PLAN OF THE LAND INVOLVED IN WP(C)NO.496/2009 ANNEX XIA COPY OF THE ROCK CUT AREA NEAR THE HILL TOP. ANNEX XIB COPY OF THE LATERITE CUT AREA NEAR THE BASE OF THE TOURISM VILLAGE ANNEX XII COPY OF THE ADVERTISEMENT BOARD PUT UP BY MOUNT VIEW. ANNEX XIII COPY OF THE PLACE WHERE A MULTI-STORIES PLAN IS SAID TO HAVE BEEN SANCTIONED. ANNEX XIV COPY OF THE REPORT AND SKETCH OF THE EXPERT PANEL DATED 27/2/2009 ANNEX XV COPY OF THE REPORT AND SKETCH OF THE EXPERT PANEL DATED 18/3/2009. /TRUE COPY/ P.S.TO.JUDGE sts C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). Nos. 32695 OF 2008, 496, 497 & 9383 OF 2009 -------------------------------------------- Dated this the 1st day of July, 2011 JUDGMENT The facts of these Writ Petitions are intertwined and common questions pose for consideration. Therefore, they were heard jointly and are being disposed of by this common judgment. 2. The Adat Grama Panchayat is the petitioner in W.P.(C). Nos.496 & 497 of 2009 and the said panchayat is a common respondent in the other two Writ Petitions. The petitioners in W.P.(C).Nos.9383 of 2009 and 32695/2008 and the second respondent in W.P.(C).No.496 of 2009 and respondents 2 and 3 in W.P.(C).No.497 of 2009, referred to hereafter as 'the applicants', applied for building permits for construction of residential buildings in their respective properties comprised in different survey numbers of Puranattukara village in Thrissur District. The said properties, admittedly, situate in a hillock by name Vilangankunnu. The second respondent in W.P.(C).No. 496 of 2009 submitted Ext.P1 application for building permit to effect construction of a residential building in Sy.No.105/2 of Puranattukara village. Respondents 2 and 3 in W.P.(C) 32695/2008 & conn. 2 W.P.(C).No. 497 of 2009 submitted a joint application for building permit for construction of a building in the property comprised in Sy.No.105/2 of the aforesaid village. The petitioner in W.P.(C).No.32695 of 2008 submitted Ext.P2 application for building permit in Sy.No.105/2 of the same village. The petitioners in W.P.(C).No.9383 of 2009 are also having properties in Sy.Nos.5 and 6 of the said village. Those applications for building permit were considered and rejected by the Grama Panchayat holding that the slope of the hillock is more than 45 degrees and therefore, in terms of the provisions under Rule 23(3) of the Kerala Municipality Building Rules (for short 'the KMBR'), permit could not be granted. Feeling aggrieved by the orders rejecting their respective applications, the applicants approached the Tribunal for Local Self Government Institutions. The Tribunal interferred with the orders of rejection of the panchayat holding that there was no material before the panchayat to hold that the land slope is 45º. Challenging these orders, the panchayat approached this Court by filing W.P.(C).Nos.16329, 16340 & 16343 of 2008 and the said Writ Petitions were dismissed as per judgment dated 2.6.2008. A copy of the same has been produced in W.P.(C).No.496/2009 as Ext.P8. Paragraph 3 of Ext.P8 judgment assumes relevance for the purpose of deciding these Writ Petitions and the same reads thus:- W.P.(C) 32695/2008 & conn. 3 “The Tribunal has examined the correctness of the contentions and found that the reason for the prohibition was the slop of the land by 45º as assumed by the panchayat. Proceeding further, Tribunal found from the pleadings that steps were only being taken by the panchayat to ascertain the slop, as per its decision dated 20.11.2007. Thus not only that there was no basis for the assumption, but also it has come out from the submissions made in this court that even as on the date the slop of the land is yet to be ascertained. If that be so, the Tribunal was right in concluding that there was absolutely no basis for rejecting the building permit on the ground that there was slop by 45 º and the prohibition that was imposed by the panchayat by its decision dated 22.10.2007.” (underline supplied) 3. Subsequent to Ext.P8 judgment, the panchayat requested the Head of the Department of Civil Engineering, I.E.S College of Engineering, Chittilappilly to conduct a survey to ascertain the slope of the aforesaid hillock. After such survey, the Head of the Department of Civil Engineering, I.E.S College of Engineering, Chittilappilly submitted a report on 8.7.2008. The said report is produced as Ext.P3 in W.P.(C).No. 496/2009. Later, the panchayat passed Ext.P9 order dated 14.7.2008 intimating respondents 2 and 3 therein that the slope of the hillock is more than 45º and therefore, in the light of Rule 23(3) of the KMBR, permission could not be granted to effect the proposed constructions. The said order was challenged by the second respondent therein before the Tribunal by W.P.(C) 32695/2008 & conn. 4 filing appeal No.424 of 2008. The Tribunal passed Ext.P10 order holding that the second respondent is entitled to accrue the benefit of the deemed permit in terms of the provisions under Section 235K(2) of the Kerala Panchayat Raj Act (for short 'the Act'). Thereafter, Ext.P11 petition was filed by the panchayat for setting aside Ext.P10 as it was an ex parte order. The said petition was filed along with the written statement in Appeal No.424 of 2008. However, Ext.P11 petition was dismissed by the Tribunal as per Ext.P13. It is challenging Exts.P10 and P13 that W.P.(C). No.496 of 2009 has been filed. Respondents 2 and 3 in W.P.(C).No.497 of 2009 challenged the order in Ext.P9 dated 14.7.2008 whereby they were intimated that since the slope of the hillock in question is more than 45 degrees, building permit could not be issued to them as it would violate Rule 23(3)of the KMBR by filing Appeal No.427 of 2009 before the Tribunal. Ext.P10 dated 29.9.2008 is the order passed thereon by the Tribunal. Against the said ex parte order, the panchayat filed Ext.P11 to set aside the said order. Along with the same, written statement was also filed. However, Ext.P11 petition was dismissed as per Ext.P13 order dated 1.11.2008 by the Tribunal. It is challenging Exts.P10 and P13 that W.P.(C).No. 497/2009 has been filed by the panchayat. The petitioner in W.P.(C).No.32695 of 2008 has filed Ext.P2 application before the W.P.(C) 32695/2008 & conn. 5 panchayat for building permit. The said application was rejected as per Ext.P3 dated 31.10.2007 on the aforesaid grounds. The petitioner took up the matter before the Tribunal by filing appeal No.521/2007. Ext.P3 order was set aside by the Tribunal as per Ext.P4 and the panchayat was directed to pass fresh orders on the application. After such fresh consideration, Ext.P6 order dated 14.7.2008 was passed, again, rejecting permission for construction. A perusal of Ext.P6 would reveal that Ext.P3 report in W.P. (C).No. 496/2009 was relied on by the panchayat for rejecting the application of building permit submitted by the petitioner. It is challenging Ext.P6 order of the panchayat that W.P.(C).No.32695 of 2008 has been filed. W.P.(C).No. 9383/2009 is filed by similarly situated persons. However, unlike the other cases, Ext.P2 building permit was granted to the petitioners therein pursuant to their application. On the strength of Ext.P2 building permit, they started construction of the building. Thereupon, Ext.P3 stop memo was issued to them based on Ext.P4 resolution passed by the panchayat. Feeling aggrieved by Ext.P3, the petitioners filed Ext.P5 objection before the panchayat. After considering the same, the panchayat passed Ext.P6 order cancelling Ext.P2 building permit issued to the petitioners. Feeling aggrieved by the said order of cancellation, the petitioners approached the Tribunal by filing W.P.(C) 32695/2008 & conn. 6 Appeal No.328 of 2008. Ext.P7 is the order passed thereon. As per Ext.P7, the aforesaid order in Ext.P6 cancelling the building permit was set aside and the Secretary of the Panchayat was directed to initiate fresh proper proceedings. Subsequent to Ext.P7 order of the Tribunal, Ext.P8 show cause notice was issued to the petitioners therein. On its receipt, they submitted Ext.P10 explanation. After its consideration, the panchayat issued Ext.P12 cancelling the building permit issued to them. It is challenging Ext.P12 that this Writ Petition has been filed. 4. The facts thus narrated above would reveal that the applications submitted by the above mentioned applicants for building permit were virtually rejected by the panchayat relying on Ext.P3 report of the Head of the Department of Civil Engineering, I.E.S College of Engineering, Chittilappilly dated 8.7.2008. In W.P.(C).Nos.496 and 497 of 2009, the panchayat challenges the orders passed by the Tribunal feeling aggrieved by the finding of the Tribunal to the effect that the respondents therein viz., the applicants therein, are entitled to accrue the deemed permit in terms of the provisions under Section 235K(2) of the Act. The contention of the panchayat is that Ext.P3 report dated 8.7.2008 would reveal that the slope of the hillock by name Vilangankunnu is more than 45 degrees and therefore, in terms of Rule 23(3) of the KMBR, it is W.P.(C) 32695/2008 & conn. 7 impermissible to grant building permit to effect any sort of construction thereon. Those facts were not taken into consideration by the Tribunal while holding the action on the part of the panchayat in rejecting the building permit as illegal and declaring that the respondents therein are entitled to accrue the deemed building permit in terms of the provisions under Section 235K(2) of the Act. 5. In the context of the contentions, it is only apposite to refer to Rule 23(3) of the KMBR and it reads as hereunder:- “R.23(3). No land development or redevelopment shall be made or no building shall be constructed on a plot liable to flood or on a slop forming an angle of more than 45 degrees with horizontal or on soil unsuitable for percolation or on area shown as floodable area in any town planning scheme or in sandy beds, unless it is proved by the owner to the satisfaction of the Secretary that construction of such a building will not be dangerous or injurious to health and the site will not be subjected to flooding or erosion or cause undue expenditure of public funds for providing sewers, sanitation, water supply or other public services.” (emphasis supplied) 6. Before dealing with the issues involved in these cases, with reference to the provisions under Rule 23(3) of the KMBR, I would like to refer to the word 'slop' used under Rule 23(3). The literal meaning of the word 'slop' is slush or watery mud. In order to harmonise with the subject W.P.(C) 32695/2008 & conn. 8 and also the object of the legislature in view, I think I should decline to be bound by the letter as it would frustrate the patent purpose of the provision. Reading it as 'slope' would best harmonise with the subject as also the object of the legislature as the meaning of the word 'slope' is 'any slanting surface or line; a declivity or acclivity; an inclined plane etc'. 7. Now, I may revert to the issue. A reading of Rule 23(3) of the KMBR would reveal that as per the same, the Local Self Government authorities could not issue permit for land development or redevelopment of a plot on a slope at an angle of more than 45 degrees with horizontal. It is relevant to note the expression 'plot' employed in the said rule. Thus, a reading of the said provision would suggest that in order to be objectionable on the ground of formation of the angle of the plot in question, it should be plot with slope forming an angle of more than 45 degrees with horizontal. Even in such cases, it is incumbent on the Secretary to afford an opportunity to the owner to satisfy him that construction of a building thereon would not be dangerous or injurious to health and the site would not be subjected to flooding or erosion or cause undue expenditure of public funds for providing sewers, sanitation, water supply or other public services. In short, the mere fact that the plot concerned lies on a slope forming an angle of more than 45 degrees with W.P.(C) 32695/2008 & conn. 9 horizontal will not, for that reason alone, make the applicant ineligible to obtain a building permit. I do not think that this Court should consider those aspects any further in view of the subsequent developments. A perusal of Ext.P3 report would reveal that while preparing the same, the slope of the plots concerned were not individually and independently ascertained after conducting an appropriate survey. It is reported that the slope of Vilangankunnu forms at an angle of more than 45 degrees at certain places. The summary and observation in Ext.P3 report dated 8.7.2008 are noteworthy in the context of the contentions and they read thus:- “SUMMARY As per the request of the President, Adat Grama Panchayat, survey was conducted at Vilangan hill to measure the slopes. Slopes were measured along two directions, where major deviations in slopes were noticed and it was found that (Fig 1): • The slopes along Direction 1 varies from 20.6º to 45.2º in various sections in a total distance of 128.8m • The slopes along Direction 2 varies from 21.0º to 45.2º in various sections in a total distance of 133.0m. OBSERVATION Since the hill slope is found to be very steep, construction of any sort may be avoided, as the land is prone to soil erosion. Ecology of the hill also will be damaged” W.P.(C) 32695/2008 & conn. 10 8. It is to be noted that even though such a survey was conducted pursuant to Ext.P8 judgment, the panchayat has not taken steps to get it ascertained the slope of the concerned plots held by the applicants involved in these cases to see whether each of the concerned plot lies at an angle of more than 45 degrees. That apart, there is nothing on record to show that they were afforded with an opportunity to prove it to the satisfaction of the Secretary of the Panchayat that it would not be dangerous or injurious to health and the site would not be subjected to flooding or erosion or cause undue expenditure of public funds for providing for providing sewers, sanitation, water supply or other public services. Evidently, the applications were rejected by the Secretary merely relying on the report to the effect that the slopes at Vilangankunnu forms at an angle of more than 45 degrees and it varies from 20.6º to 45.2º at Direction 1 and from 21.0º to 45.2º at Direction 2. The report would definitely indicate that slopes at Direction 1 and Direction 2 alone were measured. That apart, it is stated in Ext.P3 report itself that it is only an interim report indicating the measured slopes in two specific directions viz., at Direction 1 and 2. Therefore, the aforesaid portion of the report alone could not have taken as a reason for rejecting the applications submitted by the applicants without ascertaining whether the slope in W.P.(C) 32695/2008 & conn. 11 respect of each of the concerned plots forms an angle more than 45 degrees with horizontal. That apart, they were not afforded with the opportunity to prove the matters required to be proved by the applicants to the satisfaction of the Secretary. At any rate, in the orders of rejection, failure to prove such aspects was not at all assigned as a reason. Evidently, no such contention has been raised by the panchayat in these Writ Petitions as well. 9. In W.P.(C).No.32695/2008 this Court passed an interim order in I.A.988 of 2009 dated 27.1.2009. It reads thus:- “The issue involved in the Writ Petition is as to whether the site of the petitioner where the petitioner wants to construct a building at a slope is beyond the permissible degree. The petitioner has now filed this I.A for appointment of an Advocate Commissioner to assess the degree of the slope of the petitioner's property with the aid of experts. Learned standing counsel for the respondents submits that by measuring the degree of the slope of the petitioner's property alone, the issue cannot be resolved and the slope of the entire hillock has to be measured. I am of the opinion that it would be open to the respondent to seek whatever measurements they also want to be conducted by the Advocate Commissioner with the aid of the experts. In the above circumstances, I am inclined to allow this I.A. Accordingly, I.A is allowed. Sri.Mohan C.Menon is appointed as Advocate Commissioner. He would be free to take assistance of such experts, which, his opinion, would be able to measure the slope accurately. Both the petitioner and the respondent would be free to file work memos as to the measurements to be made made by the Advocate Commissioner with help of the experts. The petitioner W.P.(C) 32695/2008 & conn. 12 shall pay initial amount of Rs.20,000/- (Rs.twenty thousand only) as commission batta to the Advocate Commissioner. The question of batta to be paid to the experts shall be decided later.” 10. Later, common order was passed in I.A.No.2113 of 2009 in W.P.(C).No. 496 of 2009 and in I.A.No.2110 of 2009 in W.P.(C).No.497 of 2009 appointing the same Advocate Commissioner to ascertain the same facts. Thereafter, the Advocate Commissioner with the assistance of the Civil Engineering Department, Government Engineering College Thrissur conducted necessary survey with a view to ascertain the slope in respect of the properties involved in these writ petitions. After such an inspection, a report has been filed on 23.3.2009. A careful consideration of the said report would reveal that the plots involved in these writ petitions are not lying at an objectionable angle ie., at an angle in excess of 45 degrees. Since the report reveals that all the properties involved in these Writ Petitions did not lie in places having slope more than 45 degrees, I am of the view that the decision of the Secretary of the Panchayat to reject the applications for building permit merely relying on Ext.P3 report that reports only with respect to the slopes at two points viz., Directions 1 and 2 mentioned therein, cannot, therefore, be sustained. It is also apposite to note that even after the receipt of the report dated 23.3.2009 of the W.P.(C) 32695/2008 & conn. 13 Advocate Commissioner that was prepared with the assistance of the Civil Engineering Department of Government Engineering College, Thrissur, no objection was filed by the panchayat though the report contains findings to the effect that none of the properties involved in these cases lies at an objectionable angle viz., 45 degrees with horizontal. Therefore, it is to be taken that the Panchayat admits the position that the properties involved in these cases did not lie at a place wherein the slope forms an angle which is more than 45 degrees. 11. As already noticed hereinbefore, the contention of the petitioners in W.P.(C).Nos.496 of 2009 and 497 of 2009 viz., the panchayat is that the ex parte orders thereunder were passed by the Tribunal in the appeals preferred by the concerned respondents therein. It is their further contention that after the pronouncement of the orders, the panchayat has filed petitions to set aside the ex parte orders in the appeals. The facts expatiated above would reveal that in all these cases, the concerned applicants had, earlier, challenged the proceedings of the Secretary in rejecting the applications for building permit, before the Tribunal for Local Self Government Institutions. On all such occasions, the panchayat entered appearance and contested the cases. The affidavits filed along with the applications for setting aside the ex parte orders W.P.(C) 32695/2008 & conn. 14 impugned in these Writ Petitions were not accepted by the Tribunal and consequently, the Tribunal passed orders dismissing the said applications. Admittedly, earlier, the panchayat had sought assistance of the Civil Engineering wing of the I.E.S College of Engineering, Chittilappilly and got prepared Ext.P3 report, so marked in W.P.(C).No.496/2009. In fact, in the said report itself, it is stated that it is an interim report indicating the measured slopes in two specific directions. In other words, admittedly, they have not conducted the survey in such a manner to identify the slope concerned in respect of the properties involved in these Writ Petitions. In fact, it is taking into account all such crucial aspects that this Court passed an interim order appointing an Advocate Commissioner to conduct measurement of the slope. Pursuant to the same, Advocate Commissioner prepared a report with the assistance of Civil Engineering Wing of the Government Engineering College, Thrissur and filed report dated 23.3.2009. Evidently, all the plots involved in these Writ Petitions were inspected and a survey was conducted to find whether these plots lie in the objectionable degrees. The report is to the effect that none of the plots involved in these Writ Petitions lie at an objectionable angle in terms of Rule 23(3) of KMBR. Despite such a finding in the said report, admittedly, no objection has been raised by the panchayat and in fact, they W.P.(C) 32695/2008 & conn. 15 did refute the said findings. In the circumstances, I am of the view that no purpose would be served if the matter is remitted for a fresh consideration by the Tribunal. For deciding the issues involved in these cases, at the earlier instance, the panchayat had, admittedly, sought assistance of the Civil Engineering wing of a private Engineering College. Based on the interim order passed by this Court, the Civil Engineering wing of the Engineering College assisted the Advocate Commissioner and they inspected the properties involved in all these Writ Petitions and ascertained the the slope in respect of the concerned properties and filed a report. When such a report is available before this Court, in the absence of any objections filed by the panchayat, I am of the view that the panchayat should be made to accept the same and to act upon it. The upshot of the discussions is