IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WP(C).No. 1174 of 2010(V) ------------------------------------- PETITIONER(S): ----------------------- THOMAS, S/O.OUSEPH, AGED 38 YEARS 11/392, CHEMBAN HOUSE, P.O.KARUVANNUR, THRISSUR DISTRICT. BY ADV. MR.K.T.SHYAMKUMAR RESPONDENT(S): ------------------------- 1. VALLACHIRA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY VALLACHIRA PO,THRISSUR DISTRICT. 2. THE SECRETARY VALLCHIRA GRAMA PANCHAYAT VALLACHIRA PO,THRISSUR DISTRICT. 3. THE DISTRICT COLLECTOR THRISSUR DISTRICT. R3 BY GOVERNMENT PLEADER MR.V. MANU. R1 & R2 BY ADV. MR.M.B.PRAJITH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 1174/2010-V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE DEED NO.96/2009 OF CHERPPU SUB REGISTRAR'S OFFICE. EXT.P2: COPY OF THE RECEIPT OF APPLICATION FEE, COPY OF THE SITE PALAN SUBMITTED BY THE PETITIONER AND THE ACKNOWLEDGEMENT ISSUED BY THE PANCHAYATH. EXT.P3: COPY OF THE LETTER DT.20/07/2009 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE AGREEMENT DATED 25/09/2009 ENTERED INTO BY THE PETITIONER WITH THE ST. MARY'S CHURCH, ARATTUPUZHA. EXT.P5: COPY OF THE LETTER DATED 02/11/2009 ISSUED BY THE 2ND RESPONDENT APPENDING THE COPY OF THE DECISION OF THE PANCHAYATH. EXT.P6: COPY OF THE AGREEMENT DATED 16/10/2009 ENTERED INTO BY THE ST. MARY'S CHURCH ARATTUPUZHA WITH THE PETITIONER. EXT.P7: COPY OF THE APPLICATION DATED 22/10/2009 ALONG WITH THE RECEIPT ISSUED BY THE PANCHAYATH. EXT.P8: COPY OF THE LETTER DT. 20/11/2009 ISSUED BY THE 2ND RESPONDENT. EXT.P9: COPY OF THE APPLICATION DATED 01/12/2009 SUBMITTED BY THE PETITIONER ALONG WITH THE ACKNOWLEDGEMENT RECEIPT GIVEN BY THE PANCHAYATH. EXT.P10: COPY OF THE LETTER DATED 31/12/2009 SUBMITTED BY THE PETITIONER BEFORE THE PANCHAYATH ALONG WITH THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE PANCHAYATH. EXT.P11: COPY OF THE PRESS RELEASE REGARDING ALLOTMENT OF SAND PASSES. EXT.P12: COPY OF THE APPLICATION DATED 06/01/2010 SUBMITTED BY THE PETITIONER FOR GRANT OF CERTIFICATE FOR ALLOTMENT OF SAND ALONG WITH THE COVERING LETTER AND ACKNOWLEDGMENT ISSUED BY THE PANCHAYATH. EXT.P13: COPY OF THE LETTER DATED 28/12/2009 ISSUED BY THE PANCHAYATH. EXT.P14: COPY OF THE ENVELOPE ON WHICH THE DATE OF POSTING IS SEALED BY THE POSTAL AUTHORITIES. EXT.P15: COPY OF THE APPEAL DATED 06/01/2010 FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR. EXT.P16: COPY OF THE REPORT AND SKETCH OF THE ADVOCATE COMMISSIONER IN OS NO.3/2010 OF MUNSIFF COURT, THRISSUR. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.1174 OF 2010 (V) -------------------------------------------------- Dated this the 3rd day of March, 2010 J U D G M E N T Ext.P1 is the sale deed by which the petitioner has purchased property having an extent of 22.238 cents, scheduled therein. Thereafter he submitted Ext.P2 application for the issuance of a building permit. On its receipt, the Panchayat issued Ext.P3 reply stating that the applicant should provide access to the plot, where the construction is proposed to be undertaken, in terms of Rule 33 of the Kerala Municipality Building Rules. The petitioner states that thereupon he entered into Ext.P4 agreement with St. Mary's Church, Arattupuzha, by which according to him, the Church agreed to provide the petitioner access to his property. Producing Ext.P4, petitioner submitted a request for issuing the building permit applied for by him. However, the request was rejected by Ext.P5 on the ground that in Ext.P4 the Church has reserved their right to terminate the agreement. 2. On receipt of Ext.P5, petitioner sates that he entered into a fresh agreement with the Church, a copy of which is Ext.P6, where WPC.No. 1174/2010 :2 : the Church unconditionally agreed to provide him access to the property. It is stated that again on 22.10.2009 petitioner submitted Ext.P7 application to the Panchayat requesting for the issuance of the building permit applied by him. By Ext.P8, dated 20.11.2009, the Secretary of the Panchayat informed the petitioner that his request has been referred to the Panchayat committee for decision. 3. It is stated that there was no response from the Panchayat thereafter and that on the expiry of one month from 20.11.2009, the date on which the matter was referred to the Panchayat Committee, a deemed licence as provided in Rule 15(2) of the Kerala Municipality Building Rules has accrued in favour of the petitioner. On the basis, petitioner also submitted Ext.P10 dated 31.12.2009 informing the Panchayat that a deemed licence has accrued in his favour . This was followed by Ext.P12 application dated 6.1.2010 for the allotment of sand. 4. According to the petitioner on receipt of Ext.P10 and Ext.P12, Ext.P13 order was issued requiring him to measure and demarcate the access to the plot and to inform the Panchayat about the access that he had provided pursuant to Ext.P6 agreement with WPC.No. 1174/2010 :3 : the Church. It is stated that although Ext.P13 is dated 28.12.2009, the same was despatched from the Panchayat office only on 1.1.2010. This according to the petitioner is evident from Ext.P14 cover enclosing Ext.P13. On the basis of the facts as stated above, petitioner submits that on the expiry of one month from 20.11.2009, a deemed license has accrued in his favour and therefore Panchayat is not justified in issuing Ext.P13. 5. The Panchayat has filed a counter affidavit. In the counter affidavit the stand taken by the Panchayat is that, even if it is assumed that a deemed licence HAS accrued in favour of the petitioner as contended by him, it is always open to the Panchayat to insist on the compliance of various provisions of the Panchayat Act and the Building Rules. It is stated that it is in exercise of this right that the Panchayat had issued Ext.P13. 6. The main prayer sought in this writ petition is to declare that by virtue of Rule 15 of the Kerala Municipality Building Rules a deemed licence has accrued in favour of the petitioner. Rule 15(2) provides that when an application for building permit has been referred to the Council and where the Council does not, within one WPC.No. 1174/2010 :4 : month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given and the applicant may proceed to execute the work but not so as to contravene any of the provisions of the Municipality Act or Building Rules or Bye laws made under the Municipality Act. 7. From Ext.P8 dated 20.11.2009, it is evident that the application made by the petitioner for building permit has been referred to the Municipal Council. Admittedly, within one month from 20.11.2009 there has not been any communication from the Municipal Council and the Municipal Council has not taken any decision either to allow or reject the application in the meantime. If that be so, a deemed permit as contemplated under Rule 15(2) of the Kerala Municipality Building Rule has accrued in favour of the petitioner on the expiry of one month from 20.11.2009. 8. Although Ext.P13 dated 28.12.2009 refers to a decision of the Panchayat dated 19.12.2009, the Panchayat has not placed anything on record to indicate that the said decision was communicated to the petitioner. A decision will be effective and WPC.No. 1174/2010 :5 : binding only when it is communicated to the person concerned and otherwise it will remain still born. In this case though a decision has been allegedly taken on 19.12.2009, that decision has not been communicated to the petitioner and therefore even if there is such a decision taken, that decision is no consequence as far as the petitioner is concerned. In view of this, it is declared that on the expiry of one month from 20.11.2009 a deemed permit as contemplated under Rule 15(2) of the Rule has accrued in favour of the petitioner. 9. However, as is evident from Rule 15(2) of the Building Rules, even if a deemed licence has accrued in favour of the applicant , that will not enable him to contravene any of the provision of the Kerala Municipality Building Rule. Rule 33 of Rule provides the specification of the access to be provided to a place, in respect of which application for a building permit is made. Petitioner submits that the access provided in Ext.P6 satisfies Rule 33 of the Kerala Municipality Building Rule. Irrespective of the fact that the deemed license has accrued in favour of the petitioner, if the Panchayat has a case that the access provided by the petitioner does not satisfy WPC.No. 1174/2010 :6 : Rule 33, it is always open to the Panchayat to consider that aspect and take action in accordance with law and that right of the Panchayat is in no way impaired by the deemed licence that the petitioner has. It is so clarified. 10. Now that this court has upheld the contention of the petitioner that a deemed license has accrued in his favour, it is directed that the Panchayat shall consider Ext.P12 application made by the petitioner for allotment of sand and pass orders thereon as expeditiously as possible, at any rate within 4 weeks from the date of production of a copy of the judgment. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/