IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 WA.No. 2127 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.23473/2009 Dated 16/09/2009 .................... APPELLANT: -------------- V.K. RAJEEV, AGED 41 YEARS, SON OF KUNJUKUNJU, VELLOOR, HOUSE, KUDAVANCHOOR P.O., PIN 686 144. BY ADV. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENTS: --------------- VENCHOOR GRAMA PANCHAYATH, KUDAVECHOOR, P.O., VAIKOM (VIA), KOTTAYAM 686 144, REPRESENTED BY ITS SECRETARY. ADDL. RESPONDENT: 2. THE VILLAGE OFFICER, VILLAGE OFFICE, VECHOOR.P.O., KOTTAYAM-686 144. (ADDL. RESPONDENT IS IMPLEADED AS PER ORDER DT.16.11.2009 IN I.A.1149/2009.) ADV. SRI.M.A.ASIF FOR R1 G.P. SMT.K.MEERA FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON 26/03/2010 DELIVERED THE FOLLOWING: P.R.RAMAN & C.N.RAMACHANDRAN NAIR, JJ. .................................................................... Writ Appeal No.2127 of 2009 .................................................................... Dated this the 26th day of March, 2010. JUDGMENT Raman, J. Appellant is the writ petitioner. He had constructed a building after obtaining necessary certificate from the Village Officer and also building permit duly approved by the Panchayat. Ext.P1 produced in the case is an Ownership Certificate issued by the Grama Panchayat in respect of the then existing building No.II/284B in the very same property. That certificate was issued for the purpose of obtaining electrification. Ext.P2 is No Objection Certificate issued by the Panchayat certifying that the Building Rules has no application to the Panchayat in question. Ext.P3 is Possession Certificate issued by the Village Officer in respect of the property in question as per which 2.98 acres of land in Survey No.524/4 with sub-division numbers are stated to be in the possession and ownership of the appellant. While Ext.P3 is issued by the Village Officer, the Tahsildar has also issued Ext.P4 certificate dated 12.3.2008 to the same effect. Ext.P5 is the No W.A. 2127/2009 2 Objection Certificate issued by the Grama Panchayat dated 27.12.2003 according sanction to the appellant for construction of a building in the said land obeying the conditions laid down in the Kerala Building (Unauthorised and Land Development) Rules, 1999 read with Sections 220B and 235AB of the Kerala Panchayat Raj Act. The appellant accordingly constructed the building and applied for numbering the building. But the Grama Panchayat did not number the building, instead they issued Ext.P6 dated 4.8.2009 stating that on enquiry made they have come to know that as per the Possession Certificate issued by the Village Officer, the property is shown to be "Nilam". Reference is made to the Possession Certificate issued by the Village Officer on 29.7.2009. Reference is also made to a Circular issued by the Department for Local Self Government stating that buildings to which "No Objection Certificate" has been issued but construction has not been started, should obtain a licence to construct under the Kerala Municipal Building Rules and those buildings which had been issued with "No Objection Certificate" but construction had not been W.A. 2127/2009 3 commenced beyond the ground level, should also obtain the permit. Accordingly he was directed to get a certificate from the Revenue Divisional Order so as to number the building. In the counter affidavit filed by the Grama Panchayat they have a case that appellant produced fabricated document, made incorrect averments and managed to get the same with the connivance of Government officials. But these allegations are not supported by any materials on record. If anybody obtains a certificate from the authority concerned fraudulently, certainly the matter could have been informed to the Police and a complaint could have been registered. Further, the allegation is actually against the officials without even making them in the party array. Though it is stated that the property is a pucca paddy field, the authority to issue certificate of that nature undisputably is the Revenue officials and that is the exact reason why in Ext.P6 order they have required the appellant to obtain a permit. Therefore, on a reading of the counter affidavit it can be seen that the Panchayat has stated many things which is beyond their knowledge and jurisdiction. Ext.R1(a) W.A. 2127/2009 4 produced along with the counter affidavit is a letter issued by the Village Officer to the Manager of KSIDC stating that Possession Certificate earlier issued in the case of the appellant was a mistake. But the Village Officer himself has not taken any step to cancel the certificate with due notice to the appellant. 2. In the reply affidavit filed by the appellant-petitioner, he has denied the allegations made in the counter affidavit and asserts that the property is a dry land and no agricultural activities are carried out for many years. At the time when the construction was made by the appellant, admittedly he has obtained certificate from the Village Officer as also from the Tahsildar. Thereafter he applied to the Panchayat and initially obtained certificate saying that Building Rules are not applicable and thereafter construction was completed. Only at the time when he requested the Panchayat to number the building, all allegations are raised and he has been denied the right to get his building numbered by the Panchayat. If it is a case where the appellant has obtained certain certificates fraudulently, certainly action W.A. 2127/2009 5 can be taken against him. But then the very same authority who issued the certificate, with due notice and within a reasonable time, should have cancelled the certificate so issued. That has not been done in this case. Ext.R1(a) is issued to the Bank behind the back of the petitioner. There is no case for the additional respondent impleaded in the Writ Appeal namely, the village Officer that the certificate was cancelled at any point of time with due notice to the appellant and that too, before the actual construction started. As a matter of fact, we do not find any counter affidavit filed on behalf of the additional respondent. 3. The Writ Petition was filed for a direction to number the building. The learned Single Judge did not enter any finding on the allegations made in the counter affidavit as regards the fraud alleged. At the same time it is observed that the first round Village Officer certified the land as dry land, the Tahsildar certified that the land is dry land and he did it for the purpose of the petitioner to produce it before KSIDC. With the passage of time, the Village Officer again certifies that the land is wet land and the learned Single Judge in such W.A. 2127/2009 6 circumstances thought that it may not be advisable to enter any particular finding regarding the nature of the land. But the question is admittedly when certificates are issued by the Village Officer, the Tahsildar and even by the Panchayat, if any of the certificate is obtained fraudulently, necessarily the concerned authority should have taken steps for cancellation of the same with due notice. In so far as those certificates have not been cancelled with due notice to the appellant, the building in question is liable to be numbered. Based on the interim direction passed in the appeal, the building has already been numbered provisionally. Further, from the photographs as evidenced by Ext.P8, we find that the land in question is a garden land and even as early as in 2003 there was a pre-existing building and a certificate is issued for the purpose of electrification of that building, that too by the Panchayat itself. In the wake of the above facts and circumstances, we do not think it is a fit case where there is any justification for the Panchayat authorities at this distance of time after the construction is over, to refuse to number the building. Now that the building is W.A. 2127/2009 7 already numbered provisionally, interim order passed by this court is made absolute and will stand regularised. In so far as Ext.R1(a) has been issued to the KSIDC without informing the appellant and in the absence of independent proceeding cancelling the certificate already issued in his favour with due notice, Ext.R1(a) communication will not bind the appellant. Ext.P6 is accordingly quashed. The Writ Appeal is allowed. P.R.RAMAN Judge C.N.RAMACHANDRAN NAIR Judge pms