IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 WP(C).No. 4996 of 2009(T) PETITIONER: --------------- A.K.DHANAPALAN, S/O.LATE.A.K.KRISHNAN 66 YEARS, RESIDING AT THARAYIL HOUSE, PATHIRAPPALLY PO., KOMALAPURAM VILLAGE, ARYAD GRAMA PANCHAYATH, ALAPPUZHA DISTRICT. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENTS: --------------- 1. THE SECRETARY, ARYAD GRAMA PANCHAYATH, PATHIRAPPALLY PO., ALAPPUZHA, PIN-688521. 2. ARYAD GRAMA PANCHAYATH, PATHIRAPPALLY PO ALAPPUZHA, PIN-688 521, REP. BY ITS SECRETARY. 3. DEPUTY DIRECTOR, LAND SURVEY, ALAPPUZHA. 4. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. R1 AND R2 BY ADV. SRI.P.P.THAJUDEEN SRI.MANSOOR.B.H. SMT.C.SEENA GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE REPOY DATED 17.6.2008 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. EXT.P2 TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER, KOMALAPURAM AND SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT ON 25.6.2008. EXT.P3 TRUE COPY OF THE TITLE DEED OF THE PETITIONER'S PROPERTY VIZ. DOCUMENT NO.1061 DATED 16.4.1974. EXT.P4 TRUE COPY OF THE BASIC TAX RECEIPT DATED 9.1.2008 ISSUED BY THE VILLAGE OFFICER, KOMALAPURAM FOR THE PETITIONER'S PROPERTY. EXT.P5 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 23.4.2008 ISSUED BY THE VILLAGE OFFICER, KOMALAPURAM TO THE PETITIONER. EXT.P6 TRUE COPY OF THE REPLY DATED 30.6.2008 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. EXT.P7 TRUE COPY OF THE LETTER DATED 28.6.2008 SENT BY THE FIRST RESPONDENT TO THE VILLAGE OFFICER, KOTHAMANGALAM. EXT.P8 TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE SOMANATHAN BEFORE THE FIRST RESPONDENT. EXT.P9 TRUE COPY OF THE STATEMENT DATED 18.7.2008 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P10 TRUE COPY OF THE RESOLUTION PASSED BY THE SECOND RESPONDENT PANCHAYATH ON 25.7.2008 ALONG WITH COVERING LETTER DATED 30.7.2008 SENT TO THE PETITIONER BY THE FIRST RESPONDENT. EXT.P11 TRUE COPY OF THE JUDGMENT OF THIS COURT DATED 12.8.2008 IN WP(C) NO.24321 OF 2008. EXT.P12 TRUE COPY OF THE RESOLUTION PASSED BY THE SECOND RESPONDENT PANCHAYATH ON 14.1.2009 ALONG WITH COVERING LETTER DATED 20.1.2009 SENT TO THE PETITIONER BY THE FIRST RESPONDENT. EXT.P13 TRUE COPY OF THE LETTER NO.C-4/32754/08 DATED 2.6.2009 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA. EXT.P14 TRUE COPY OF THE RESOLUTION PASSED BY THE PANCHAYATH DATED 27.1.2009. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE RESOLUTION OF THE PANCHAYATH DATED 27.1.2009. EXT.R1(b) TRUE COPY OF THE LETTER DATED 5.2.2009 COMMUNICATED TO THE PETITIONER. EXT.R1(c) TRUE COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE PETITIONER. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 4996 OF 2009 ------------------------------------------------------ Dated this the 8th day of July, 2010 JUDGMENT The petitioner is a retired Jawan. According to him, he owns 2.23 Ares of land in resurvey No.232/11 of Komalapuram Village. That land is situated on the eastern side of a mud road. That road leads to another road on the southern side which in turn leads to the National Highway, as mentioned in Ext.P2 location sketch. The petitioner had purchased this property in the year 1994. Mutation was effected. It is stated that the petitioner regularly pays land revenue in respect of the land. 2. The petitioner applied before the Aryad Grama Panchayath for granting permission to construct a house in the aforesaid property. The application was returned as per Ext.P1 letter dated 17.6.2008 issued by the Secretary of the Grama Panchayath pointing out certain defects. The defects were cured and the application was refiled. The necessary documents were produced along with the application. The Secretary of the Grama Panchayath W.P.(C) NO. 4996 OF 2009 :: 2 :: issued Ext.P6 reply dated 30.6.2008 to the petitioner stating that a complaint was received in the Panchayath in respect of the land in which construction is sought to be made by the petitioner and therefore, permission can be granted only after getting clarification from the higher authorities. On 28.6.2008, the Secretary of the Panchayath had addressed to the Village Officer, Komalapuram to ascertain whether puramboke land is included in the property claimed by the petitioner. As per Ext.P8 dated 23rd April, 2008, one Somanathan had filed a petition before the Secretary of the Aryanad Grama Panchayath pointing out that nine persons including the petitioner had encroached upon the puramboke land. Somanathan made a request to the Panchayath to take action for removal of the encroachment. On 18.7.2008, the petitioner sent Ext.P9 representation to the Secretary of the Panchayath pointing out that no encroachment was made by him and that the land absolutely belongs to him. The details regarding purchase of the property, mutation made by the Village Office etc. were mentioned in Ext.P9. The Secretary of the Panchayath was requested to consider and dispose of the application at the earliest. 3. As per Ext.P10 resolution passed in the meeting of the W.P.(C) NO. 4996 OF 2009 :: 3 :: committee of the Panchayath held on 25.7.2008, the Panchayath took a decision not to grant permission to the petitioner to construct the building for the time being, since the Panchayath had requested the Deputy Director of Surveys, Alappuzha to ascertain whether the petitioner had encroached upon any puramboke land and since the survey work was not completed. The petitioner filed W.P.(C) No.24321 of 2008, which was disposed of as per Ext.P11 judgment dated 12th August 2008 directing the Deputy Director, Land Survey, Alappuzha to submit the report to the Panchayath within four weeks. The Secretary of the Panchayath was directed to take a decision on the application made by the petitioner for building permit, as expeditiously as possible. 4. The Deputy Director, Land Survey submitted a report before the Panchayath. In the meeting held on 14.1.2009, the committee of the Panchayath decided to ignore the report submitted by the Deputy Director, Land Survey, only on the ground that the report of the Deputy Director contains similar facts as mentioned in the explanation offered by the writ petitioner. The resolution dated 14.1.2009 is marked as Ext.P12 in the Writ Petition and the petitioner has prayed for quashing Ext.P12. W.P.(C) NO. 4996 OF 2009 :: 4 :: 5. A counter affidavit was filed by the Secretary of the Grama Panchayath wherein it is stated that the Writ Petition was filed suppressing material facts. The Panchayath committee had already rejected the application for building permit submitted by the petitioner, as per the decision of the committee dated 27.1.2009, marked as Ext.R1(a). Ext.R1(a) was forwarded to the petitioner on 5.2.2009 as per Ext.R1(b), which was received by the petitioner on 7.2.2009 as evidenced by Ext.R1(c). The Writ Petition was filed on 13.2.2009. 6. In Ext.R1(a) decision taken by the Panchayath committee, the Panchayath did not rely on the report submitted by the Resurvey Deputy Director only on the ground that the report is virtually a reproduction of the explanation given by the Writ Petitioner. It is also stated in Ext.R1(a) that the committee decided to request the District Collector to remove the encroachment on puramboke land. It is also stated that the matter was pending consideration before the District Collector. It was concluded in Ext.R1(a) that pending consideration of the question whether the petitioner had encroached upon the puramboke land, permission need not be granted to the petitioner to construct the house. W.P.(C) NO. 4996 OF 2009 :: 5 :: 7. The Writ Petitioner filed I.A.No.7945 of 2009 for interim direction. Along with the application, the petitioner produced Ext.P13 order dated 2.6.2009 issued by the District Collector, Alappuzha to the Secretary of the Grama Panchayath. All the relevant facts and details were considered by the District Collector and it was concluded in the report that the writ petitioner had not encroached upon any puramboke land. The petitioner filed I.A.No.9225 of 2010 for amendment of the Writ Petition to incorporate a prayer for quashing Ext.P14, which is the same as Ext.R1(a). 8. The learned counsel appearing for the first respondent submitted that the Writ Petition is not maintainable as the petitioner has effective alternative remedy of filing an appeal on Ext.R1(a) decision of the Panchayath. The counsel also submitted that the Panchayath is only interested in protecting the puramboke land and to see that no puramboke land is encroached upon and no permit is granted to construct building in the puramboke land. 9. In answer to the contention raised by the first respondent regarding availability of alternative remedy, the learned counsel for the petitioner relied on the decision of a learned single Judge in W.P.(C) NO. 4996 OF 2009 :: 6 :: Dharmadom Paristhithi Samrakshna Samithi v. Dharmadom Grama Panchayath and another (I.L.R. 2010 (2) Kerala 547) and contended that since Ext.P12 resolution and Ext.P14 order passed by the Panchayat are contrary to the provisions and scheme of the Kerala Panchayat Raj Act, 1994 and therefore, without jurisdiction, the alternative remedy of filing an appeal under Section 276(5) of the Kerala Panchayat Raj Act would not be a bar to the maintainability of the Writ Petition. It is submitted that the orders passed by the Panchayat are absolutely without jurisdiction and the High Court, in exericse of the powers under Article 226 of the Constitution of India, could straight away quash the order passed by the Panchayat. I am inclined to accept this contention in view of the decision in Dharmadom Paristhithi Samrakshna Samithi v. Dharmadom Grama Panchayath and another (I.L.R. 2010 (2) Kerala 547), wherein it was held thus: “Although under Section 166 of the Kerala Panchayat Raj Act, among the powers, duties and functions of the Panchayat, regulation of building construction has also been enumerated as one of its mandatory functions, powers in that behalf has been conferred on the Secretary of the Panchayat under the W.P.(C) NO. 4996 OF 2009 :: 7 :: various provisions contained in Chapter XXI of the Kerala Panchayat Raj Act. Section 235 F provides that an application to construct or reconstruct building shall be send to the Secretary. Section 235 G provides that the Secretary shall not grant permission unless and until he approves the site and Section 235 J provides the period within which the Secretary is to grant or refuse to grant permission to execute work. Section 235 K provides for reference to the Village Panchayat in the event the Secretary delays orders on an application made under Section 235 G beyond 30 days period provided under Section 235 I or J. Section 235 L provides the grounds on which the approval may be refused by the Secretary. Section 235 N confers power on the Secretary to require alteration in work and Section 235 O confers power on the Secretary to stop construction or reconstruction endangering human life. Similar powers are also conferred on the Secretary in so far as an application to construct or reconstruct huts are concerned, by virtue of the provisions contained in Sections 235 P, R, S, T and W. Section 185 B provides exercise of statutory functions by Officers of the Panchayat. This section reads as under: 185 B. Exercise of statutory functions by the officers. -- Where any Officer of the Panchayat is conferred with any statutory W.P.(C) NO. 4996 OF 2009 :: 8 :: powers and functions to be exercised independently and solely, the Panchayat, the Panchayat President, Chairman of the Standing Committee or any member shall not interfere or influence in the exercise of such powers and functions by that Officer. Therefore, by virtue of the provisions contained in Chapter XXI, power to consider and pass orders on an application for building permit is exclusively conferred on the Secretary of the Panchayat. The Committee of the Panchayat gets jurisdiction to consider an application only in a case where reference is made to it under Section 235 K. If power is conferred on the Secretary, the same has to be exercised in the manner as provided under Section 185 B, which has to be done independently and solely by him and without any interference or influence by the Panchayat, the President or Chairman of the Standing Committee. In this case, while power is thus conferred exclusively on the Secretary, the Panchayat on its own, passed Ext.P1 resolution resolving not to grant building permit. It is this decision which was repeated by the Panchayat again in Ext.P4. In my view, both Exts.P1 and P4 orders are without jurisdiction by virtue of the fact that power has been conferred by the Legislature on the Secretary of the Panchayat, which he has to exercise independently W.P.(C) NO. 4996 OF 2009 :: 9 :: as provided in Section 185B of the Act. If so, this conclusion of the Tribunal in Ext.P5 order cannot be held illegal.” 10. There is no case for the Panchayat that a reference was made under Section 235K of the Panchayat Raj Act to the Panchayat Committee. Therefore, Ext.P12 resolution passed by the Panchayat and Ext.P14 order issued by the President of the Panchayat are contrary to the provisions of the Panchayat Raj Act. Accordingly, Ext.P12 resolution and Ext.P14 order are liable to be quashed. 11. In answer to the contention that the petitioner has suppressed material facts, an explanation is offered in the application for amendment of the Writ Petition that by oversight, the receipt of Ext.P14 order was not brought to the notice of the counsel. The petitioner has produced Ext.P12 resolution passed by the Panchayat. Ext.P14 order was passed by the President of the Panchayat based on Ext.P12 resolution passed by the Panchayat. Therefore, I am of the view that there was no suppression of material facts dis-entitling the petitioner to the discretionary relief under Article W.P.(C) NO. 4996 OF 2009 :: 10 :: 226 of the Constitution of India. 12. Now it is made clear in Ext.P13 report submitted by the District Collector that no puramboke land is included in the extent of land claimed by the petitioner and in which he sought permission to construct a house. Therefore, there is no justification for denying permit. In 2008, the petitioner, who was working as a Jawan, had applied for permit to construct a house in his property. Even now his application is not finalised and permit is not granted. There is no justification on the part of the Panchayat in delaying matters like this. The Deputy Director of Surveys filed a detailed report before the Panchayat. The Panchayat Committee rejected the report on the flimsy ground that the materials furnished in the report of the Deputy Director of Surveys are the reproduction of the contentions of the writ petitioner in his representation. In Ext.P13 order, the District Collector has also made it crystal clear that the petitioner had not encroached upon any government land. The governmental authorities including the District Collector had no case that any puramboke land is included in the property claimed by the petitioner in which a house is sought to be constructed. If so, how could the Panchayat Committee delay the matters pointing out that certain W.P.(C) NO. 4996 OF 2009 :: 11 :: persons had made representations to the Honourable Chief Minister, Revenue Secretary, District Collector, Tahsildar, Deputy Tahsildar and Village Officer ? I am of the view that there were no justification on the part of the Panchayat Committee to exercise the powers of the Secretary and to deny the otherwise genuine claim made by the petitioner. Two years' delay was caused in the matter of construction of a house by the petitioner. The cost of construction has gone up. The petitioner has to meet this additional burden only because of the usurpation of jurisdiction made by the Panchayat Committee. 13. In Ext.P2 sketch prepared by the Village Officer, the property belonging to the petitioner is marked with measurements. That property is situated on the eastern side of a road. The road line is also marked in the plan. On the eastern side of the road, the properties belonging to strangers are also situated. There is no case that those persons had encroached upon any puramboke land. On a mere perusal of the plan, prima facie, it is clear that the contention that the petitioner had encroached upon puramboke land is incorrect. This is fortified by the report submitted by the Deputy Director of Panchayats and Ext.P13 order passed by the District Collector. W.P.(C) NO. 4996 OF 2009 :: 12 :: 14. For the aforesaid reasons, I have no doubt that Ext.P12 and P14 are liable to be quashed and I do so. The Secretary of the Panchayat shall consider the application submitted by the petitioner for granting of permit for constructing a residential house, taking into account the report submitted by the Deputy Director of Surveys and Ext.P13 order passed by the District Collector, as expeditiously as possible and, at any rate, within a period of thirty days from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the amended Writ Petition, copy of I.A.No.7945 of 2009 along with exhibits and certified copy of the judgment before the Secretary of the Panchayat. The Writ Petition is allowed as above. (K.T.SANKARAN) Judge ahz/