Kerala High Court
Manikandan vs State Of Kerala on 28 October, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936
WP(C).No. 12581 of 2013 (W)
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PETITIONER :
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MANIKANDAN, S/O.VELAYUDHAN,AGED 29 YEARS,
NADAKKAVU HOUSE, NADUTHARA,
KUDALLUR,PALAKKAD - 678 788.
BY ADV. SRI.JACOB SEBASTIAN
RESPONDENT(S):
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1. STATE OF KERALA, REP.BY ITS SECRETARY,
GOVERNMENT DEPARTMENT OF LOCAL SELF GOVERNMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE SECRETARY,
PALLASSENA GRAMA PANCHAYAT, PALLASSENA,
PALAKKAD - 678 505.
R1 BY GOVERNMENT PLEADER SMT. K.A.SANJEETHA
R2 BY ADV. SRI.T.G.RAJENDRAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11-07-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C).No. 12581 of 2013 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: A TRUE COPY OF POSSESSION CERTIFICATE DATED 28/10/2008
ISSUED BY THE VILLAGE OFFICER, PALLASSENA.
EXHIBIT P2: A TRUE COPY OF THE BUILDING PERMIT.
EXHIBIT P3: A TRUE COPY OF THE ORDER DATED 20/7/2011 OF THE OMBUDSMAN
OF LOCAL SELF GOVERNMENT IN O.P. NO.388/2010.
EXHIBIT P4: A TRUE COPY OF THE ORDER DATED 6/3/2012 OF 2ND RESPONDENT.
EXHIBIT P5: A TRUE COPY OF THE ORDER DATED 22/8/2012 ISSUED BY THE 2ND
RESPONDENT.
RESPONDENT(S)' EXHIBITS: NIL
/TRUE COPY/
P.A.TO.JUDGE
sts
A.V.RAMAKRISHNA PILLAI, J.
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W.P(C) No.12581 of 2013
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Dated this the 11th day of July, 2014
JUDGMENT
Ext.P5 by which the second respondent has rejected the petitioner's application for numbering the building constructed by him is under challenge.
2. The petitioner is the owner in possession of 0.1155 hectares of property wherein, he had constructed a building having an area about 100 sq. metres, pursuant to the building permit issued by the 2nd respondent. According to the petitioner, construction was completed in the year 2010. Thereafter one of his neighbours filed original petition (O.P 388/2010) before the learned Ombudsman for Local Self Government Institutions alleging that the petitioner as well as the neighbouring property owners encroached upon the puramboke land vested with the panchayat. The learned Ombudsman passed an order (Ext.P3) directing the Secretary to measure the property of the petitioner with the assistance of a taluk surveyor and to fix the boundaries. Consequently, the 2nd respondent found that the petitioner had WP(C).12581/13 -:2:- encroached into the property of the panchayat by about 10 sq. metres and directed him to pull back the fence.
3. The petitioner alleges that after the re-fixation of the boundary, he requested the Government to number the building. However, the same was rejected by Ext.P5 on the ground that the distance between the street boundary and the building was only 1.65 metres which was below 2 metres prescribed by Rule 28(1) of the Kerala Panchayat Building Rules, 2011. It is with this background, the petitioner has approached this Court.
4. In the counter filed by the State, they have maintained the stand that the petitioner has not maintained a distance of two meters set back as per the then existing Rules. On measurement it was found that the petitioner has trespassed upon a part of the public road. However, the respondent has stated that a fence was put up demarcating the property of the petitioner.
5. Arguments have been heard.
6. Admittedly, there was an encroachment by the petitioner in the property belonging to the respondent Panchayat. However, on the basis of the fixation of the boundary pursuant to the direction given by the learned Ombudsman the road was realigned. WP(C).12581/13 -:3:- The learned counsel for the petitioner would submit that the encroachment was not wilful and after the boundary was re-fixed, the petitioner removed the fence and reinstalled the same on the exact boundary.
7. It is relevant to note that the petitioner completed the construction of the building as per Ext.P2 building permit. There is no allegation that the petitioner has seriously violated the provisions of the Act, Rules of bye-laws of the conditions in the building permit while constructing the building. It is also relevant to note that the building rules are enacted for the benefit of the public and when those rules are violated what has to be decided is whether the breaches are of trivial character, in which case, the imposition of fine might meet the requirements.
8. It was pointed out by the learned counsel for the petitioner that the Rules had no retrospective operation. In a case of construction of a building deviating from the approved plan, if the construction does not endanger public safety or when there is no fraud or negligence on the part of the building, if such deviation are of trivial nature having no bearing on the public safety, the same shall not be a bar in numbering the building especially if the WP(C).12581/13 -:4:- petitioner has completed the construction as per the building permit already issued.
Considering the entire materials now placed on record, this Court is of the view that the petitioner is entitled to get the reliefs prayed for. Therefore, the writ petition is allowed. Ext.P5 is quashed and the 2nd respondent is directed to assess the building and number the same which was constructed by the petitioner pursuant to Ext.P2 permit within a period of two months from the date of receipt of a copy of this judgment.
Sd/-
A.V.RAMAKRISHNA PILLAI JUDGE krj /True Copy/ P.A to Judge