Kerala High Court
Cheranelloor Grama Panchayath vs Joe Thattil on 24 September, 2020
Equivalent citations: AIRONLINE 2020 KER 1119
Author: Shaji. P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942
WA.No.1007 OF 2020
AGAINST THE JUDGMENT IN WP(C) 7007/2020(A) OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS:
1 CHERANELLOOR GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, SOUTH CHITTOOR P.O.,
ERNAKULAM-682027.
2 THE SECRETARY,
CHERANALLOOR GRAMA PANCHAYATH, SOUTH CHITTOOR P.O.,
ERNAKULAM-682027.
BY ADVS.
SRI.P.MOHANDAS (ERNAKULAM)
SRI.K.SUDHINKUMAR
SRI.S.K.ADHITHYAN
SRI.SABU PULLAN
SRI.GOKUL D. SUDHAKARAN
DR.K.P.SATHEESAN (SR.)
RESPONDENTS/PETITIONER:
JOE THATTIL,
AGED 43 YEARS, S/O. ANTONY THATTIL, TAHTTIL HOUSE,
8TH CROSS, DIVINE NAGAR, SOUTH CHOTTOOR P.O.,
ERNAKULAM, KOCHI-682027.
R1 BY ADV. SRI.P.K.SOYUZ
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22-09-2020,
THE COURT ON 24-09-2020 DELIVERED THE FOLLOWING:
WA.No.1007 OF 2020 2
CR
JUDGMENT
Shaji. P. Chaly, J.
The appeal is preferred by the respondents in W.P.(C) No. 7007 of 2020 i.e., the Cheranalloor Grama Panchayat and its Secretary challenging the judgment of the learned single Judge dated 26.02.2020, whereby the learned Single Judge allowed the writ petition and quashed Ext.P6 notice issued by the Secretary of the Grama Panchayat dated 15.12.2018 declining to issue, the occupancy certificate and building number due to the additional construction carried out by the writ petitioner/respondent against Ext.P3 permit dated 26.10.2015 granted by the Secretary of the Grama Panchayat . Consequently, the writ petitioner was directed to secure necessary orders from the Revenue Divisional Officer concerned under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('the Act, 2008' for short). Thereby, the Secretary was directed to consider the grant of occupancy certificate afresh without any reference to the nature of land in revenue records as paddy field, in accordance with the provisions of the Kerala Panchayat Building Rules, 2011 ('Rules, 2011' for brevity), which was in force at the time of grant of Ext.P3 building permit dated 26.10.2015 and not on the basis of the subsequent Building Rules that has come into force, after providing an opportunity of hearing to the writ petitioner and within a period of one month from the date of production of a WA.No.1007 OF 2020 3 copy of the judgement. It is, thus, challenging the legality and correctness of the said judgment, this appeal is filed.
2. The material facts for the disposal of the appeal are as follows:
The writ petitioner is the owner in possession of 5.66 Ares of property comprised in re-Survey No. 306/4, Block No.4 of Cheranalloor Village in Kanayannur Taluk, Ernakulam District, which is an undisputed fact. The said property was included in the data bank prepared by the Local Level Monitoring Committee of the Cheranalloor Grama Panchayat under the provisions of the Act, 2008 as converted before 5 years. The writ petitioner submitted an application for building permit before the Secretary of the Grama Panchayat, the second appellant herein, for the construction of the residential house in the property, against which Ext.P3 permit was granted for the construction of 240.77 square meters of residential building in two floors. Admittedly, over and above the plinth area permitted to be constructed as per the permit, the writ petitioner carried out additional constructions and it was completed on 28.12.2017. Thereafter, in accordance with Rules, 2011, the writ petitioner has submitted a completion plan, and an application seeking occupancy certificate before the Secretary on 30.01.2018. Since the application was not considered, the writ petitioner approached this Court by filing W.P.(C) No. 31405 of 2018 seeking appropriate directions for consideration of the application. The said writ petition was disposed of directing the writ petitioner to file an application for regularisation in the prescribed format and thereupon, directed the respondents therein to consider and dispose of the application within three WA.No.1007 OF 2020 4 months. It was thereafter that Ext.P6 impugned notice was issued by the Secretary of the Grama Panchayat dated 15.12.2018 stating that since the land owned by the writ petitioner is classified as 'nilam' in the revenue records, permission should be obtained from the Revenue Divisional Officer as per Section 27A of the Act, 2008, with a further direction that a proper application should be submitted for regularisation of additional portion of building constructed deviating from the approved plan. The case of the writ petitioner is that since the writ petitioner was abroad, the application for regularisation of the additional construction could be furnished only on 29.02.2020, produced as Ext.P7 along with the writ petition and the Secretary of the Grama Panchayat has issued Ext.P8 receipt for the same.
3. No counter affidavit is seen filed by the appellants in the writ petition. The learned Single Judge, taking into account the provisions of Act, 2008 and the judgements rendered by this Court in Mahin v. Keezhmad Grama Panchayat (2020 (2) KLT 478) and Soumini and others v. Naduvannur Grama Panchayat, Kozhikode (2017(1) KLT
168), has found that Section 27A of the Act, 2008 has come into force on and with effect from 30.12.2017, which has no consequence to the issue in question, since the building permit was issued by the Secretary of the Grama Panchayat as early as on 26.10.2015, and it was accordingly that the directions specified above were issued to the Secretary to take appropriate action dehors the provisions of Section 27A of the Act, 2008 and in accordance with the Building Rules in force when the permit was issued.
4. The basic contentions advanced by the Grama Panchayat and the WA.No.1007 OF 2020 5 Secretary in the appeal are that at the time of issuance of Ext.P3 building permit, a Government circular was in force allowing construction of residential buildings having an area of 300 square meters, in paddy fields converted prior to 2008, and recorded as paddy land in revenue records. It is further contended that Ext.P3 building permit was granted accordingly for a plinth area of 240.77 square meters; however, the writ petitioner has constructed a building having an area of 528.66 square meters. Therefore, the construction, even as per the then existing circular, is in violation of the building permit and hence, it cannot be regularised. It is further submitted that if the direction of the learned Single Judge is allowed to be implemented, the same will have far reaching consequences, since a large number of regularisation applications of those who have constructed buildings in unnotified lands without obtaining permission under Section 27A, are pending, and in all those cases, the appellants have consistently directed the applicants to obtain permission under Section 27A of the Act, 2008. Therefore, if the claim of the writ petitioner is allowed, it will be a wrong message and all such constructions of similarly placed persons would be constrained to be regularised in violation of the legal provisions.
5. We have heard learned Senior Counsel for the appellants, Sri. K.P. Satheesan assisted by Adv. P. Mohandas, learned counsel for the respondent/writ petitioner, Sri. P.K. Souz and Sri. Peeyus Kottam, and perused the pleadings and documents on record.
6. Learned Senior counsel for the appellants addressed arguments on the basis of the above discussed contentions advanced. The subject issue WA.No.1007 OF 2020 6 raised in the writ petition and the appeals are basically revolving around the provisions of the Act, 2008, Kerala Land Utilisation Order, 1967 and the attendant circulars issued by the State Government, in order to regularise the constructions carried out in the paddy fields. The Act, 2008 was brought into force on and with effect from 12-08 2008, which has undergone amendment in the years 2011, 2015, 2016 and 2018.
7. As per Section 3 of the Act, 2008, a prohibition was imposed on conversion or reclamation of paddy land that, on and from the date of commencement of the Act, the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of the Act, 2008. Under Section 5(1) of the Act, 2008, the Local Level Monitoring Committee was constituted in each Panchayat or Municipality, consisting of the members specified in sub-Section (2), for the purpose of monitoring the implementation of the provisions of the Act, and the Agricultural Officer shall be the Convenor of the Committee. As per sub- Section (3) of Section 5, the committee is vested with various powers, including the power to recommend to the District Level Authorised Committee for the reclamation of paddy land for construction of residential building for the owner of the paddy land, however, restricting the extent to 4.04 ares and 2.02 ares in a Panchayat, or in Municipality/Corporation area respectively . As per sub-Section (4) of Section 5, the Committee is vested with powers to prepare a data-bank with the details of the cultivable paddy land and wetland, within the area of jurisdiction of the Committee, with the WA.No.1007 OF 2020 7 help of the map prepared or to be prepared by the State Land Use Board or Centre State Science and Technology Institutions on the basis of satellite pictures by incorporating the survey numbers and extent in the data-bank and get it notified by the concerned Panchayat/ Municipality/Corporation, in such manner as may be prescribed, and exhibit the same for the information of the public, in the respective Panchayat/Municipality/Corporation Office and in the Village Office/Offices. This was the provision as it originally stood and there was no provision under the Act to consider the grievance of an aggrieved person consequent to the inclusion of any property in the data bank. Thereupon, directions were being issued by this Court in writ petitions filed by aggrieved persons to consider such application for removal of the property from the data bank. Anyhow, by virtue of an amendment introduced by Ordinance No. 41 of 2017, a proviso was brought into existence on and with effect from 30-12-2017 after Sub-section 4(1) of Act, 2008, which was replaced by Ordinance Nos. 13 of 2018 dated 12.02.2018 and 30 of 2018 dated 04.04.2018 and later by bill dated 06-07-2018 to have deeming effect from 30-12-2017, by which any person aggrieved by the entries in the data bank so existed may prefer an application to the Revenue Divisional Officer concerned, who shall dispose of such application within a period of three months after following such procedure as may be prescribed and in case the RDO finds that the land included as a paddy land or wet land in the said data bank is not a paddy land or wetland, it shall be deemed to have been removed from the data bank.
8. Even though judgments were rendered by this Court that WA.No.1007 OF 2020 8 consequent to the introduction of Act, 2008, concerning the paddy fields, the Kerala Land Utilisation Order, 1967 has lost its relevance, in Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another [2015(2) KHC 109=2015(1) KLT 984], the Apex Court had held that if land is not included in the data bank or draft data bank prepared under Paddy Land Act and if it is not a paddy land or wet land as defined under the Act, and the classification of land is noted as paddy field in the revenue records, provisions of Kerala Land Utilisation Order will be applicable to such land and Collector as defined in clause 2( a) of Order, 1967 has power to grant permission to utilise such land for other purposes. It was further held that, enquiry to ascertain as to whether the land is a paddy field or dry land, and for conversion of such land for residential purpose or for any public purpose is governed by the Act, 2008 and the Kerala Land Utilisation Order, 1967, and the authorities constituted thereunder respectively are competent authorities, and the aggrieved person has to approach such authority, and further that under the guise of rectification of mistakes in Section 18 of Land Tax Act, conversion of nature of the land cannot be effected bypassing the procedure stipulated under the KLU Order and the Act, 2008. Therefore, we have to proceed on the basis that if the property was not included in the data bank prepared as per the Act, 2008, it was guided by the provisions of the Kerala Land Utilisation Order, 1967. But, fact remains, Section 27A was introduced into the Act, 2008 on and with effect from 30.12.2017 as per the ordinances specified above and later as per the provisions of the Kerala Paddy and WetLand (Amendment) Act, 2018 ('the Act, 2018' for short). As WA.No.1007 OF 2020 9 per sub-Section (1) of Section 27A, if any owner of un-notified land desires to utilise such land for residential or commercial or for other purposes, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. Other provisions are also introduced into Section 27A so as to deal with such applications.
9. Section 27C was also brought into force on and with effect from 30.12.2017 in order to deal with change in records, which stipulates that notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number or subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of the Act, a new subdivision shall be created for the extent for which such orders for conversion are issued. As per sub-Section (5) thereto, it was clearly specified that no attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-Section (3). Sub-Section (3) stipulates that where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible. Therefore, on and with effect from 30.12.2017, for the purpose of conversion of any paddy field, one will have to seek remedies under Section 27A for utilising such lands for residential or commercial or for other purposes, and thereupon WA.No.1007 OF 2020 10 clause 6(2) of the Kerala Land Utilisation Order, 1967 has lost its relevance. Clause 6(2) of the Kerala Land Utilisation Order, 1967 stipulates that no holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of the order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector.
10. Now the question emerges for consideration in the appeal is as to whether Ext.P3 permit granted by the Secretary of the Grama Panchayat to the writ petitioner was subject to any condition. On a perusal of Ext.P3, it is clear that permit was granted to the writ petitioner to carry out construction of a residential building with a total plinth area of 240.77 square meters, having a validity of three years. The conditions incorporated shows that the permit is subject to CRZ Rules and the same shall be suspended or revoked, if any violation or mistakes is found during the validity period. Therefore, it is clear that none of the consequences that are contained under the Act, 2008 or the Kerala Land Utilisation Order, 1967 was imposed as a condition precedent for carrying out the construction of the building by the writ petitioner. It is an admitted fact that the property was included in the data bank with a specific remark that the property was converted 5 years prior to the introduction of the Act, 2008. It is well recognised that the Act, 2008 had only prospective effect on and with effect from the date of introduction of the Act, which has received the assent of the Governor on 11.08.2008 WA.No.1007 OF 2020 11 and published in the Kerala Gazette No. 1790 dated 12.08.2008. Therefore, the Act has come into force on and with effect from the aforesaid date. Therefore, it is clear that when the writ petitioner applied for the building permit, the property was not included in the data bank as a paddy field. However, by including the property in the data bank, it indicated that it was a paddy field converted five years prior to the introduction of the Act, and at the most at that point of time the consequence that could have stood in the way of securing a permit was the provisions of clause 6(2) of the Kerala Land Utilisation Order, 1967. Even though there was a restriction from conversion contained under clause 6(2) of the Kerala Land Utilisation Order, 1967, there is no provision at all under the Order 1967 to take any action against any person who has converted the land, except the power of the District Collector to direct cultivation of land with food crop that was being, cultivated three years prior to the introduction of order 1967, either directly or through conducting auction, as is provided under clause 7 of order 1967. There is no case for the appellant Panchayat that any action was initiated by the District Collector under section 7 of the Kerala Land Utilisation Order 1967. The said question was considered by a Division Bench of this Court in Aishabeevi and another v. Superintendent of Police, Ernakulam and others [2014 (3) KHC 678], taking into account the provisions of Act, 2008 and the Kerala Land Utilisation Order, 1967 and it was held that as per Section 14 of the Act, 2008, no legal authority shall grant any licence or permit under the Kerala Panchayat Raj Act, 1994 or the Kerala Municipality Act, 1994 for carrying out any activity or construction in a paddy land or wet WA.No.1007 OF 2020 12 land converted in contravention of the provisions of the Act, 2008. It was further held that obviously the said power is not made applicable to the land which stood converted prior to the commencement of the Act, 2008, even if such application was made in violation of the Kerala Land Utilisation Order, 1967 and therefore, it was held that the permit granted thereunder was for a valid purpose and the same was not issued in contravention to Ext.R4(a). Paras 21 to 26 in Aishabeevi supra are relevant to the context, they read thus;
"21. Though, there is no specific pleadings in the counter affidavit, we will deal with the contention that the paddy land was converted in violation of S.6 of the Kerala Land Utilisation Order, 1967. We have already found that the property in question was not lying as a paddy land at the time when the Conservation of Paddy Land and Wet Land Act, 2008, was commenced. But it is pertinent to note that the party respondents have no specific contention pertaining to the crucial questions 'when did the petitioners or prior owners convert the paddy land?' or 'who converted it?'. Whereas, the case of the party respondents is that in the absence of specific order permitting conversion of the land under Land Utilisation Order, 1967, it can be legally presumed that the land in question is an illegally converted one, for which no permission can be granted for construction of building and such land cannot be used for any purpose other than agricultural purpose. Can such legal presumption be drawn legally, merely on the reason that no order permitting conversion under Land Utilisation Order, 1967 has been passed or produced with respect to the land in question?
Presumptions
22. Let us examine the term 'presumption' and its legal effect and WA.No.1007 OF 2020 13 implication. What is presumption under Law and what is required to draw a presumption legally? The 'presumption' is a legal inference to the existence or truth of a fact, not certainly known, drawn from known or proved, on existence of some other facts. In Stumpf v. Montgomery (1924 (101) OKL 256), the Court concurred with the beautiful metaphor in regard to 'presumption' said by a scholarly Counsellor 'Ore Tenus', which reads as follows: "Presumptions may be looked on as the bats of the law flitting in the twilight, but disappearing in the sunshine of actual facts." In Izhar Ahmedkhan v. Union of India (AIR 1962 SC 1052), Supreme Court held that the term presumption may be defined to be an inference, affirmative or disaffirmative of the truth or falsehood of a doubtful fact or preposition drawn by a probable reasoning from something proved or taken for granted. Put it differently, presumption would mean drawing inference from the facts proved or admitted by a process of reasoning as probable inferences of facts. The expressions "may presume" and "shall presume" are defined in S.4 of the Evidence Act, 1872. The presumption falling under the former category are compendiously known as 'factual presumptions' or 'discretionary presumptions' and those falling under the latter known as "legal presumptions" or "compulsory presumptions".
'Presumption of fact' is the inference which is naturally and logically drawn from given facts without the help of legal direction. To put it differently, it means fact which is uncertain or doubtful may be inferred from the proof of another fact. Whereas, "legal presumptions' are arbitrary inferences which the law expressly directs the Judge to draw from particular facts". These are nothing but deductions drawn from human experiences and observations and expressed in the form of artificial rules of law. When a provision deals with legal presumption, it is to be understood as in terrorem i.e.; in tone of command that it has to be presumed, if conditions, if any, prescribed had been satisfied. (Narasinga Rao v. State of Andhra Pradesh ((2001) 1 SCC 691). Presumption of law are obligatory and are of two kinds (a) rebutable and (b) irrebutable. The WA.No.1007 OF 2020 14 court is bound to act according to rule and cannot refuse to draw presumption.
23. That apart, the rules as to burden of proof and those as to presumption of law are closely allied. When presumption prevails in favour of a party, the burden of proof is on the opponent. Therefore, it can be concluded that no legal presumption can be drawn unless the statute, expressly prescribes such presumption. In short "No legal presumption unless the statute commands".
24. In view of the legal proposition quoted above, we made a survey in the Land Utilisation Order, 1967 and Kerala Conservation of Paddy Land and Wet Land Act, 2008. There is no provision either in the above said Order or Act prescribing a legal presumption that in the absence of an order granting conservation (sic conversion) of paddy land under Land Utilisation Order, 1967, the paddy land, which stood converted after the commencement of Land Utilisation Order, 1967, without specific order permitting conversion, shall be presumed to be an illegally converted land, for which no permit for construction of a building can be granted and such land cannot be used for any purpose other than agricultural operations. Similarly, the Conservation of Paddy Land and Wet Land Act does not say anything about the legal status of the paddy land which stood converted to garden land before the commencement of the above Act, without permission under Land Utilisation Order. But S.14 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 imposes a bar against granting of licence or permit to carry out any activity or construction in paddy land converted after the commencement of this new Act. Therefore, it could be reasonably presumed that such a bar is not made applicable to the paddy land which stood converted before the commencement of the above said Act.
25. In this context, it is worthy to have a look at preamble of Conservation of Paddy Land and Wet Land Act, 2008 and the aim and WA.No.1007 OF 2020 15 object of Kerala Land Utilisation Order, 1967. The Land Utilisation Order, 1967 was passed in exercise of powers conferred by sub-section (1) and clause (b) of sub-section (2) of S.3 of the Essential Commodities Act, 1955. The paramount object sought to be achieved by the Kerala Land Utilisation Order issued under Essential Commodities Act is to ensure that those lands which are put to use for the agricultural purpose of cultivation of food crops which are enumerated in Clause 2(b) of that Order are put to such use.
26. Whereas, the preamble of the Conservation of Paddy Land and Wet Land Act, 2008 itself shows situation prevailed under Kerala Land Utilisation Order, 1967."
11. It is true, the State Government was issuing periodical circulars in respect of the constructions carried out without even securing permit and in violation of the provisions of the Act, 2008 and Order, 1967, thus enabling the owners of the paddy fields to secure the constructions regularised in terms of the mandate contained under such circulars.
12. Learned Senior counsel for the appellants has produced certain circulars along with I.A. No. 4 of 2020 in the appeal. But, Annexure II circular is dated 22.01.2011, which specifies that the construction of buildings upto 300 square meters can be permitted. In the appeal, the writ petitioner has produced Annexure R6 circular issued by the State Government dated 06.12.2017, from where it is clear that directions were issued to the Local Self Government Institutions to regularise the constructions carried out in the paddy fields not included in the data bank and remaining in the revenue records as a paddy fields under the circumstances recited thereto and without any restrictions to the plinth area as is in the circular of 2011 specified above, and the circular 2017 being relevant is extracted hereunder: WA.No.1007 OF 2020 16
On the other hand, the learned senior counsel has invited our attention to the circular of the State Government dated 13-08-2018, which reads thus:WA.No.1007 OF 2020 17 WA.No.1007 OF 2020 18
13. Relying upon the Circular 2018, even though it is submitted that, regularisation can be done only if the construction was in terms of the permit granted, we do not find much force in the said submission, because even if the construction carried out is without securing a permit, if the construction is in accordance with the Rules, 2011, the Secretary is vested with ample powers to regularise the same in terms of the provisions of the Kerala Panchayat Raj Act 1994 and the Kerala Panchayat Building Rules, 2011, discussed hereafter. However, Secretary of the appellant Grama Panchayat was not at liberty to issue Ext.P6 notice directing the writ WA.No.1007 OF 2020 19 petitioner to secure necessary orders under Section 27A, since the said provision has come into force only with effect from 30.12.2017 while the permit was granted to the writ petitioner on 26.10.2015. Therefore, it is clear and evident that the provisions of Section 27A will not come into play in the matter of the permit granted to the writ petitioner. This is also quite clear from sub-Section 13 of Section 27A, which stipulates that any application received for the change of nature of unnotified land from the date of commencement of the Amendment Act, 2018 incorporating section 27A to Act, 2008 shall be considered and disposed of only in accordance with the provisions of the Act.
14. Needless to say, even according to the Local Level Monitoring Committee, the property was converted by the writ petitioner 5 years prior to the introduction of the Act, 2008. It was apparently taking into account these aspects that the learned Single Judge has relied upon the judgment in Soumany and others and Mahin referred supra and held that the additional constructions carried out by the writ petitioner against the area permitted under the building permit was permissible to be considered for regularisation and was directed to consider the occupancy application along with the completion plan in terms of the provisions of the the Kerala Panchayat Building Rules, 2011. The guiding factors to entertain an application seeking occupancy certificate is dealt with under Rule 25 of the Rules, 2011, which reads thus:
"25. Completion certificate, development certificate and occupancy certificate. (1) Every owner shall, on completion of the development or WA.No.1007 OF 2020 20 redevelopment of land or construction or reconstruction or addition or alteration of building, as per the permit issued to him, submit a completion certificate certified and signed by him, to the Secretary in the form in Appendix E:
Provided that in the case of buildings, other than residential buildings up to two dwelling units, the completion certificate shall be certified and signed by the owner and registered Architect or Building Designer or Engineer or Town Planner or Supervisor also as in Appendix F. (2) The Secretary shall, on receipt of the completion certificate and on being satisfied that the development or redevelopment of land has been effected in conformity with the requirements of these rules, issue a development certificate in the form in Appendix G, not later than 15 days from the date of receipt of the completion certificate:
Provided that if no such development certificate is received within the said fifteen days, the owner may proceed as if such a development certificate has been duly issued to him.
(3) The Secretary shall, on receipt of the completion certificate and on being satisfied that the construction or reconstruction or addition or alteration has been carried out in conformity with the requirements of these rules, issue occupancy certificate in the form in Appendix H: not later than fifteen days from the date of receipt of the completion certificate:
Provided that, in case there is deficiency as per these rules in the minimum mandatory open spaces/yards after completion of the construction, the secretary may allow a tolerance upto 5% of the minimum mandatory open spaces/yards to be provided as per these rules or 20 centimetres whichever is less for the building constructed:
Provided also that if no such occupancy certificate is issued within the said fifteen days, the owner may proceed as if such occupancy certificate has been duly issued to him.
(4) The owner of a building may if he intends to occupy the building WA.No.1007 OF 2020 21 before its completion, apply to the Secretary for that purpose and the Secretary shall, on being satisfied that such occupancy will not in any way endanger life, issue occupancy certificate in respect of the completed part."
15. Said so, the Secretary of the Grama Panchayat is vested with ample powers for regularisation of un-permitted constructions and deviations as per Rule 134 of the Rules, 2011, which stipulates that the Secretary shall have the power to regularise construction or reconstruction, addition or alteration of any building or digging of any well or telecommunication tower or any structure or land development or any work, for which permission of the Secretary is necessary under the Rule commenced, being carried on completed without obtaining approved plan or in deviation of the approved plan, provided that such construction or reconstruction or addition or alteration of any building or digging of any well or telecommunication tower or any structure or land development or any such work shall not be in violation of any of the provisions of the Act or the Rules.
16. Therefore, we do not find much force in the contention advanced by the learned Senior Counsel for the appellants that the judgment in Soumini (supra) has no force. This is because the permit was already granted by the Secretary of the Grama Panchayat to carry out construction. So, if an additional construction carried out deviating from the permit is entitled for regularisation, then the Secretary is vested with ample powers to do so. Going by Ext.P6 notice, which was impugned in the writ petition, the Secretary has not pointed out any violation of the Kerala Panchayt Raj Act or the Building Rules, apart from mentioning that the writ petitioner has WA.No.1007 OF 2020 22 to secure permission under Section 27A, which as we have already found, will not come into operation, since it has prospective operation only from 30.12.2017.
17. Over and above the rule empowering the secretary as above, as per the powers vested with the Government under section 235 AB of the Kerala Panchayat Raj Act, 1994, the Government have introduced the Kerala Panchayat Building (Regularisation of Unauthroised Construction) Rules, 2018 in succession to Rules, 2014 for regularisation of the unauthorised constructions without securing permit from the Local Self Government Institutions and to which the Secretary has no power. It was accordingly that a direction was issued to the writ petitioner to submit an application and the Secretary of the appellant Panchayat was directed to consider the same in terms of Rules, 2018, as per Ext.P5 judgment.
18. It is clear from Rules, 2018 that the application is to be submitted to the Secretary of the Grama Panchayat in Form I - A of Rules, 2018. Going by the Rules, 2018 the power is vested with the Government to consider the application ultimately and to take appropriate decisions. Therefore, the Secretary of the Grama Panchayat did not have any power under Rules, 2018 to take any decision rather than forwarding the application received along with the statutory requirements to the State Government, if the application was in order. Under rule 2(k) of Rules 2018 unauthorised construction means any construction, addition or reconstruction as explained under section 235AB of the Act, which was carried out or completed on or before the 31st day of July, 2017 and which the Secretary has no power to WA.No.1007 OF 2020 23 regularise under section 235W of the Kerala Panchayat Raj Act 1994 and Chapter XXII of the Building Rules, 2011 dealing with regularisation of unpermitted constructions and deviations discussed above. That said proviso to section 235W(1) of the Kerala Panchayat Raj Act 1994 enables the Secretary on realisation of a compounding fee as may be fixed by the Government, regularise any construction, reconstruction, or alteration of the building, commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the plan approved by him, if such construction or alteration of the building does not contravene any of the criteria or specifications mentioned in the Act or the Rules made thereunder. Apparently it was on the basis of the enabling provision contained under 235W the Secretary of the Grama Panchayat is conferred with powers under rule 134 of Rules, 2011. Thinking so in Ext.P6 the sole defect pointed out by the Secretary is non securing of orders under section 27A of the Act 2008 which has come into force on and w.e.f 30.12.2017 and therefore, having held that the said provision has no consequences to the case at hand, we are undoubtedly of the view that the additional construction made by the writ petitioner is susceptible to be corrected under the proviso to section 235W read along with rule 134 of Rules, 2011.
19. Taking into account the legal and the peculiar facts and circumstances of this case, we are of the considered opinion that it cannot be said that there is any error of law or any other legal or jurisdictional infirmities in the Judgement of the learned Single Judge liable to be corrected in an appeal filed under Section 5 of the Kerala High Court Act. WA.No.1007 OF 2020 24
Needless to say, writ appeal fails and accordingly it is dismissed.
S. MANIKUMAR, CHIEF JUSTICE.
SHAJI P. CHALY, JUDGE.
Rv
WA.No.1007 OF 2020 25
ANNEXURE R1 TRUE ENGLISH TRANSLATION OF ANNEXURE-R1
(CIRCULAR NO.406/RA1/2018-LSGD DATED 13-08-
2018).
ANNEXURE R2 TRUE COPY OF THE CIRCULAR
NO.4545/RA1/11/LSGD DATED 22-01-2011.
ANNEXURE R3: TRUE COPY OF THE JUDGMENT IN AISHABEEVI AND
ANOTHER V. SUPERINTENDENT OF POLICE,
ERNAKULAM AND OTHERS, 2014 (3) KLT 1078
ANNEXURE R4: TRUE COPY OF THE G.O.(MS) NO.214/2017/LSGD
DATED 1.11.2017
ANNEXURE R4(a) TRUE ENGLISH TRANSALTION OF ANNEXURE R4
G.O.
ANNEXURE R5 TRUE COPY OF THE CIRCULAR NO.994733/R-
A1/2016/LSGD DATED 22.12.2016.
ANNEXURE R5(a) TRUE ENGLISH TRANSLATION OF ANNEXURE R5
CIRCULAR.
ANNEXURRE R6 TRUE COPY OF THE CIRCULAR NO.1858832/R.A.
1/12017/LSGD DATED 6.12.2017.
ANNEXURRE R6(a) TRUE ENGLISH TRANSLATION OF ANNEXURE R6
CIRCULAR.
ANNEXURE R7 TRUE COPY OF THE CIRCULAR NO.96/R.A.
1/2017/LSGD DATED 19.1.2018.
ANNEXURE R7(a) TRUE ENGLISH TRANSLATION OF ANNEXURE R7
CIRCULAR.