IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 WP(C).No. 15411 of 2011(B) ------------------------------------- PETITIONER(S): ------------------------- 1. MR.JOHN VARGHESE, S/O.VARGHESE JOHN, AGED 66 YEARS, RESIDING AT VADAKEDATH HOUSE, NEDUMKUNNAM, KARUKACHAL VILLAGE, CHELAKOMBU P.O., KOTTAYAM DISTRICT, PIN-686 540. 2. MRS.SUSAMMA VARGHESE, W/O.JOHN VARGHESE, RESIDING AT VADAKEDATH HOUSE, NEDUMKUNNAM, KARUKACHAL VILLAGE, CHELAKOMBU P.O., KOTTAYAM DISTRICT-686540 (BOTH PETITIONERS REP.BY POWER OF ATTORNEY HOLDER GEORGE KOCHAKKAN, HOUSE NO.41/230, `KRIPALAYAM' EDAPALLY SOUTH,PALARIVATTOM P.O., ERNAKULAM-25.) BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENT(S): -------------------------- 1. VENGOLA GRAMA PANCHAYASTH, REPRESENTED BY ITS SECRETARY, VENGOLA, PERUMBAVOOR, PIN-683 554. 2. THE SECRETARY, VENGOLA GRAMA PANCHAYATH VENGOLA, PERUMBAVOOR, PIN-683 554. 3. THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLLANNER, THIRUVANANTHAPURAM- 695 001. R1 & R2 BY ADV. SRI.SIRAJ KAROLY R3 BY GOVERNMENT PLEADER SRI.K.RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.15411/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SALE DEED NO.6687/2008 OF THE SRO PERUMBAVUR DTD. 30.8.2008. P2:- COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER ARRAKKAPADY DTD. 5.3.2009. P3:- COPY OF THE TAX RECEIPT FOR PAYMENT OF BASIC TAX IN THE NAME OF THE PETITIONERS DTD. 3.6.2011. P4:- COPY OF THE BUILDING PERMIT NO.B 1159/09 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE PETITIONERS DTD. 2.3.09. P5:- COPY OF THE ORDER NO.D2/8219/2009/DDS OF THE TOWN PLANNER IN RESPECT OF THE MODIFIED LAYOUT PLAN DTD. 24.6.2010. P5(a):- COPY OF THE APPROVED LAYOUT PLAN. P6:- COPY OF THE SHOWING THE PRESENT STAGE OF THE PETITIONER'S BUILDING UNDER CONSTRUCTION. P7:- COPY OF THE OBJECTION GIVEN BY THE 3RD RESPONDENT TO CONTINUE WITH THE CONSTRUCTION OF THE BUILDINGS ALREADY COMMENCED DTD. 9.3.2011. P8:- COPY OF THE STOP MEMO ISSUED BY THE 2ND RESPONDENT TO SMT.ALEYAMMA GEORGE DTD. 12.5.2001. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.15411 OF 2011 ------------------------------- DATED THIS THE 2ND DAY OF AUGUST, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P8 to the extent to which it directly or indirectly affect the petitioners' construction being carried out under Ext.P4 building permit, to direct the respondents not to interdict the construction of the petitioners' residential building as per Ext.P4 permit and to direct the 2nd respondent not to interdict the construction of a two storied residential building being effected in their land situated in category II Pancahat and having a plinth area of 256.30 sq. metres only in view of the exemption provided for such building under the Kerala Panchayat Building Rules, 2011. 2. Petitioners purchased 10 cents of land comprised in Sy.No.82/1/3 in Bock No.22 of Arackappady Village. Sale deed is dated 30/8/2008. The aforesaid 10 cents is a portion of 5 acres and 14.5 cents of land belonging to one Aleyamma George and her children. The said Aleyamma George obtained a development permit from the 3rd respondent in respect of the entire 5 acres and 14.5 cents of land prior to the sale deed executed in favour of the petitioners. 3. Petitioners after purchasing the property, applied for a building permit supported by all necessary documents. The 2nd respondent-Secretary issued Ext.P4 building permit to the petitioners to construct a residential house having a plinth area of 256.30 sq. metres. As per the permit and approved plan the petitioners completed the ground floor and the construction of the lst floor is in progress. The 3rd respondent, taking note of the construction already commenced, accorded no objection to continue with the construction of the building as per the approved lay out by Ext.P7, which is a copy of the proceedings dated -2- W.P.(C).No.15411/2011 9/3/2011 of the 3rd respondent-Chief Town Planner. Ext.P8 is the stop memo dated 12/5/2011 addressed to Smt. Aleyamma George, the predecessor-in-interest of the petitioners, directing her to stop the construction works sanctioned as per Ext.P5 lay out plan. On the basis of Ext.P8 stop memo the 2nd respondent directed the petitioners to stop the construction works, though no notice similar to Ext.P8 has been issued to them. Petitioners submit that they have commenced construction of the building pursuant to the building permit issued by the 2nd respondent and that the 3rd respondent-Chief Town Planner has also taken note of the constructions already made by the petitioners in Ext.P7 proceedings dated 9/3/2011. It is pointed out that the petitioner had not made any deviation from the approved plan much less have committed any other violation of the building rules. Therefore, it is submitted that the 2nd respondent has no right or authority to interdict the construction of the building in any manner especially when it has already been taken note of by the 3rd respondent in Ext.P7. Since the petitioner's property is also covered by Ext.P5 lay out plan, the 2nd respondent directed the petitioners not to proceed with the construction works and accordingly, the petitioners have been prevented from continuing the construction which according to them, is illegal and arbitrary. The learned counsel for the petitioners referring to Rule 3 of sub-rule 4 of the Kerala Panchayat Building Rules, 2011, pointed out that the lst respondent Panchayat is declared as a Class II Panchayat as per the notification dated 26/2/2011 issued as G.O.(Ms.)No.64/2011 LSGD and that Rule 10 of the Rules stipulates that that the permit is not necessary for executing certain works. It is also pointed out that the petitioners' building is one covered by Sub Rule xiii of Rule 10 of the Kerala Panchayat Building Rules, 2011. The said rule mandates that buildings in category -II Village Panchayat under Group A 1 residential occupancy with total built up area on all floors upto 300 sq. metres and the number of stories limited to two and all single -3- W.P.(C).No.15411/2011 family residential buildings are exempted from the building rules and as such no building rule is necessary for making constructions. Ext.P8 is a copy of the communication issued by the Secretary of the Panchayat to Aleyamma George, who is the prior owner of the property, to show cause why the order shall not be confirmed. Petitioners submits that on the basis of Ext.P8 the 2nd respondent directed them not to continue with the construction of the building. It is also submitted that the total plinth area of the building is below 300 sq. metres and the area where the building sought to be constructed is also covered by the approved development plan. It is also pointed out that since Ext.P8 stop memo was issued to the prior owner of the property directing her to stop the construction of the building undertaken by her, there is no justification for the 2nd respondent to issue directions to stop the construction of the residential building of the petitioners. According to the petitioners, there is no reduction in the extent of land covered by approved development plan and that the copy of the sale deed etc. has been furnished to the 2nd respondent while applying for the building permit. In the light of the fact that the 3rd respondent has accorded permission to the petitioners to continue with the construction as evidenced by Ext.P7, the 2nd respondent has no right or authority to direct the petitioners not to continue with the construction. In the facts and circumstances stated above, it can be seen that this is a case where the petitioners had obtained a building permit for construction of a residential building and that in accordance with the permit they commenced construction, completed the ground floor and the construction of the rest of the building is in progress. It is pointed out that since the Panchayat is a Class II Panchayat and since the plinth area of the building is below 300 sq. metres, there is an exemption from applying for the building permit and therefore, the direction of the 2nd respondent to stop the construction is unwarrated. The Secretary of thePanchayat has filed a counter -4- W.P.(C).No.15411/2011 affidavit denying the averments in the writ petition and prayed for dismissal of thesame. Taking into consideration the contentions raised in the writ petition, Ext.P4 permit, Ext.P7 communication issued by the Chief Town Planner and Ext.P8 show cause notice issued to the prior owner, this Court is of the view that the contentions raised in the writ petition have some force. Therefore, this Court direct the petitioners to submit a representation before the Secretary of the Panchayat stating the true facts within a period of ten days from today and if such a representation is submitted by the petitioners as directed above, the Secretary shall consider and dispose of the said representation at an early date. The respondents shall not interfere with the construction activities of the petitioners in the property, till the disposal of the representation. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv. -5- W.P.(C).No.15411/2011