IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 WP(C).No. 4217 of 2009(B) --------------------------------------- PETITIONER(S): ------------------------- A.T.MATHEW,ELAMPASSERIYIL HOUSE, MOONILAVU.P.O,KOTTAYAM DISTRICT. BY ADV. MR.HAREESH.M RESPONDENT(S): --------------------------- 1. THE SECRETARY TO GOVERNMENT,DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, TRIVANDRUM. 2. THE SECRETARY,MOONILAVU GRAMA PANCHAYATH, MOONILAVU.P.O,KOTTAYAM DISTRICT. R1 BY GOVERNMENT PLEADER SMT. SUDHADEVI R2 BY ADV. MR.GEORGEKUTTY MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.4217/2009 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DTD. 06/11/2000 IN A.S.NO.31/97 IN THE FILE OF SUB COURT, PALAI. EXT.P2: COPY OF THE REPORT DTD. 20/08/07 SUBMITTED BY THE OVERSEER AND ASSISTANT ENGINEER TO THE 2ND RESPONDENT. EXT.P3: COPY OF THE BUILDING PERMIT DTD. 24/08/07 ALONG WITH THE APPROVED PLAN ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P3(A): COPY OF THE BUILDING PLAN DTD. 24/08/2007 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P4: COPY OF THE NOTICE DTD. 16/11/07 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P5: COPY OF THE REVISED PLAN ALONG WITH THE REPORT OF THE ASSISTANT ENGINEER LSGD SECTION THALANADU DTD. 04/12/07. EXT.P5(A): COPY OF THE REPORT DTD. 04/12/2007 OF THE ASSISTANT ENGINEER LSGD SECTION, THALANADU. EXT.P6: COPY OF THE NOTICE DTD. 24/12/07 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P7: COPY OF THE COMPLAINT DTD. 13/1/2007 FILED BY MR. WILLIAM JOSHUA BEFORE THE 2ND RESPONDENT. EXT.P8: COPY OF THE ORDER NO.884/2007 DTD. 02/01/08 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P9; COPY OF THE AGREEMENT DTD.11/01/2008 BY THE PETITIONER AND WILLIAM JOSHUA. EXT.P10: COYP OF THE NOTICE DTD. 07/04/08 ISSUED BY THE TAHASILDAR MEENACHIL. EXT.P11; COPY OF THE SURVEY PLAN ISSUED BY THE TAHASILDAR MEENACHIL ALONG WITH EXT.P10. Kss ..2/- .2... WPC.NO.4217/2009 B EXT.P12: COPY OF THE NOTICE DTD. 19/04/08 ISSUED BY THE 2ND RESPONDENT. EXT.P13: COPY OF THE COMPLAINT DTD. NIL FILED BY 30 PERSONS MENTIONED IN EXT.P12. EXT.P14: COPY OF REPORT DTD. 07/05/2008 ISSUED BY THE ASSISTANT ENGINEER. EXT.P15: COPY OF THE DECISION OF THE EXECUTIVE COMMITTEE OF THE 2ND RESPONDENT DTD.22/04/2008. EXT.P16: COPY OF THE NOTICE DTD. 04/07/08 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P17: COPY OF THE ORDER DTD. 04/07/08 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P18: COPY OF THE COUNTER AFFIDAVIT DTD. 05/08/2008 FILED BY THE 2ND RESPONDENT IN THE WRIT PETITION NO.21377/08, WITHOUT THE EXHIBITS. EXT.P19: COPY OF ORDER DTD. 1/07/2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P20: COPY OF JUDGMENT DTD. 07/08/2008 IN WPC.NO.21377/08. EXT.P21: COPY OF PETITION DTD. 19/09/2008 IS FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P22: COPY OF JUDGMENT DT. 14/10/2008 IN WPC.NO.30035/08. EXT.P23: COPY OF NOTICE DTD. 26/11/2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P24: COPY OF NOTICE DTD. 02/12/2008 ISSUED BY TALUK SURVEYOR, MEENACHIL. EXT.P25: COPY OF NOTICE DTD. 17/01/2009 ISSUED BY THE 1ST RESPONDENT. Kss ....3/- ..3.. WPC.NO.4217/2009 B EXT.P26: COPY OF THE REPORT NO.C/869/08 DTD. 8/09/2008 ISSUED BY THE TOWN PLANNER KOTTAYAM TO THE 1ST RESPONDENT. EXT.P27: COPY OF THE REPORT NO.C/869/08 DTD. 17/01/2009 ISSUED BY THE TOWN PLANNER, KOTTAYAM TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R2(A): COPY OF THE SITE PLAN SUBMITTED BY THE PETITIONER ALONG WITH THE APPLICATION FOR PERMIT. EXT.R2(B): COPY OF THE RELEVANT EXTRACT OF THE PANCHAYATH ASSET REGISTER. EXT.R2(C): COPY OF THE SKETCH DTD. 25/02/2009. EXT.R2(D): COPY OF THE SKETCH DTD. 20/01/2009 PREPARED BY TALUK SURVEYOR. /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI ---------------------------------------- W.P.(C)No.4217 of 2009 ----------------------------------------- Dated this the 30th day of March, 2009. JUDGMENT The petitioner is the owner of land having an extent of 10.5 cents in R.S.No.187/7 of Moonilavu Village. He is running a shop situated in the said land, and conducting sale of hill products. He has a licence issued by the Rubber Board for conducting business in Rubber Products. 2. Earlier there was a dispute between the petitioner and the panchayat with regard to the demolition of a certain building constructed by the petitioner. It was ultimately decided in favour of the petitioner, as evidenced by Ext.P1. 3. According to the petitioner, since the building in the land was in a dilapidated condition, he decided to reconstruct the same. He applied to the panchayat for a building permit and pursuant to Ext.P2 report submitted by the Overseer and Assistant Engineer, Ext.P3 permit was issued on 24.8.2007. W.P.(C)No.4217 of 2009 :: 2 :: 4. The petitioner commenced construction. He was then met with Ext.P4 stop memo requiring him to stop construction on the ground that there is a change of the position of the staircase from what was indicated in the original plan. He was asked to submit a revised plan. This he did so as per Ext.P5. The construction proceeded. 5. By Ext.P6 the petitioner was required to execute an agreement with the panchayat, inter alia, undertaking to satisfy any claim for damages to the building owned by a neighbour, who had raised a complaint against the construction. Agreement was executed. After that Ext.P8 notice was issued alleging violation of Rule 12 and directing the construction to be stopped. 6. It seems that thereafter, the construction proceeded and ultimately, taking note of the complaints made by 30 other persons and after local inspection by the Sub Committee, the panchayat had, by majority opinion, as evidenced by Ext.P15 resolution, decided to number the W.P.(C)No.4217 of 2009 :: 3 :: building. This resolution was passed on 22.4.2008. The matter should have rested there, had the resolution been implemented. But, it seems that the Secretary of the Panchayat had taken an exception to the resolution, on the ground that it was not strictly in compliance with the Kerala Municipal Building Rules {for short “the Rules”}. He, therefore, forwarded it to the Government in terms of Section 191 of the Panchayat Raj Act. 7. In the meanwhile, in spite of Ext.P15 resolution, Ext.P17 stop memo was again issued, inter alia, alleging violation of Rules 6, 17, 24 and 56 of the Rules. This was challenged by the petitioner in W.P.(C)No.21377/08. 8. The panchayat had filed a counter affidavit in the said writ petition. This court considered the allegations against the petitioner and it was so held in paragraphs 5, 6, 7 and 8 of Ext.P20 judgment as follows: “5. In so far as the allegation of the Panchayat that the petitioner has trespassed into the W.P.(C)No.4217 of 2009 :: 4 :: land belonging to the Panchayat and that he has excess land in his possession is concerned, this was one of the issues dealt with by the civil court in Ext.P1 judgment. In Ext.P1 judgment, taking note of this contention, the court had ordered that it will be open to the panchayat to take appropriate action by filing civil suit for recovery of the aforesaid excess land, if any, in the petitioner's possession. Till date the Panchayat has not filed any suit as directed in Ext.P1 and therefore, this allegation can be no reason to take any action against the petitioner. 6. What remains is the allegations against the petitioner regarding violation of the Kerala Municipality Building Rules. One of the allegations contained in paragraph 4 of the counter affidavit is that the stair case was illegally changed by the petitioner without obtaining the permission of the panchayat. In my view this is a minor deviation from the approved plan for which no permit is necessary. It is so provided in the first proviso to Rule 17 of the Kerala Municipality Building Rules 1999. If that be so, this objection cannot have any substance. The W.P.(C)No.4217 of 2009 :: 5 :: other objection raised by the panchayat is that the side shades of the building is more than 75 cms. The panchayat has not succeeded in showing any rule which supports this objection either. 7. The third contention that is raised by the panchayat is that the petitioner is illegally maintaining portions of the old building as part of the new building. Learned counsel for the petitioner submits that in the plot of land where he is undertaking construction, there existed an old building. His intention is to demolish the same and to construct a new one. However, it is contended that unless he maintains at least a portion of the building with the building number thereof, he will not be in a position to maintain his licence as a dealer in rubber. Therefore, according to the learned counsel for the petitioner, maintenance of a portion of the building is a requirement to carry on his trade in rubber and he undertakes that once the construction is completed and building number is assigned to the building in question, he will demolish the old structure in full. W.P.(C)No.4217 of 2009 :: 6 :: 8. For the aforesaid reasons I do not find any merit in the objections raised by the panchayat leading to the issuance of Exts.P16 and P17. Accordingly, Exts.P16 and P17 will stand quashed.” 9. It seems that the only reason which persuaded this court to refrain from directing the panchayat to implement Ext.P15 resolution was the pendency of the proceedings before the Government under Section 191 of the Act in relation to Ext.P15 resolution. The petitioner was permitted to move the Government for lifting the stay of implementation of Ext.P15. The petitioner did so and had to approach this court again to put the Government into action and ultimately Ext.P25 order was passed whereby the Government expressed its disinclination to lift the stay. The main reasons given by the Government in this regard are the following: “(a) The minimum distance between the building under construction and the waiting shed is less than as required W.P.(C)No.4217 of 2009 :: 7 :: under Rule 24(2) of the Kerala Municipality Building Rules 1999. (b) The coverage of the plot is greater than the permissible limit of 65% as per Rule 31 of the Kerala Municipality Building Rules 1999. (c) The side set back on the southern side of the plot is only 0.48 m, whereas a minimum of 0.75 m is required under Rule 24(5) of the Kerala Municipality Building Rules 1999.” 10. Learned counsel for the petitioner submits that objection No.1 that the minimum distance between the new construction and the waiting shed is less than what is required i.e., 75 m, is an objection without substance. Firstly, the shed itself is situated in a land belonging to the petitioner. I am inclined to agree with this submission. Rule 24(2) of the Rules, as the opening words say is applicable only “in a case of group of buildings to be put up within any plot belonging to the same owner or by different owners of adjoining lands jointly......”. Here, the petitioner wants to W.P.(C)No.4217 of 2009 :: 8 :: construct the building in a land owned by a single person, having an extent of 10.5 cents. The existing building is to be demolished. Rule 24(2) obviously has no application. Objection No.'C' deals with the side set back on the southern side of the plot is only 0.48 m, whereas a minimum of 0.75 m is required under Rule 24(5) of the Kerala Municipality Building Rules 1999. Insofar as the objection 'C' is concerned, learned counsel for the petitioner submits that the petitioner is entitled to take advantage of the second proviso to Rule 24(5) of the Rules and that a consent in this regard, from the owner of the land on the southern side viz., his own brother, has been procured and submitted. This submission is recorded. 11. What remains is only the coverage of the plot being in excess of 65% resulting in contravention of Rule 31 of the Rules. 12. Learned counsel for petitioner submits that the coverage of the newly constructed building with be less W.P.(C)No.4217 of 2009 :: 9 :: than 65%, but, at present, since the entirety of the old building has not been demolished, the authorities have taken into account the coverage occupied by the old building also to allege that the coverage of the new building is in excess of the permissible limits. The only way, in this regard, according to the learned counsel for the petitioner, is to demolish the existing old building. This may cause hardship to the petitioner by way of compelling him to stop the business being carried on by him. But, he is willing to do so. 13. I heard learned counsel for the panchayat in this regard. 14. For all these reasons, I am of the view that the Government should reconsider the matter and pass final orders in the proceedings taken by the Government under Section 191 of the Act as regards the resolution of the panchayat dated 24.4.2008. 15. Accordingly, the writ petition is disposed of with the following directions: W.P.(C)No.4217 of 2009 :: 10 :: (a) The petitioner may demolish the existing building and report the same to the panchayat within four weeks from today. (b) The panchayat shall take immediate steps, at any rate, within two weeks from the date of receipt of an intimation from the petitioner to require its Assistant Engineer to inspect the plot and ascertain whether the existing building has been demolished and whether the coverage in the building being put up by the petitioner is in excess of the permissible limit of 65% as contemplated by Rule 31 of the Rules, 1999. (c) If the Assistant Engineer gives an opinion that the coverage is within the permissible limits, the panchayat shall immediately thereupon forward the same to the Government which shall proceed to accept W.P.(C)No.4217 of 2009 :: 11 :: the report and close the proceedings under Section 191 of the Act. Thereupon, it will be open to the panchayat to implement Ext.P15 resolution and take other consequential action. The Government shall complete the entire proceedings within four weeks from the date of receipt of the report from the panchayat. Sd/- (V.GIRI) JUDGE sk/- //true copy//