Kerala High Court
Noble Thomas vs The Secretary on 24 September, 2021
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
WP(C) NO. 21103 OF 2010
PETITIONER/S:
NOBLE THOMAS, S/O. THOMAS,
KOTTARATHIL HOUSE, AMARAMBALAM SOUTH,, AMARAMBALAM
SOUTH P.O., NILAMBUR TALUK,, MALAPPURAM DISTRICT.
BY ADV SRI.K.MUHAMMED SALAHUDHEEN
RESPONDENT/S:
THE SECRETARY,
PANCHAYATH, P.O.POOKKOTTUMPADAM, NILAMBUR TALUK,,
MALAPPURAM DISTRICT.
BY ADV SRI.V.RAJENDRAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 21103 OF 2010
-2-
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:-
"(i) To issue a writ of mandamus or any other appropriate writ order or direction directing the respondent to number the building constructed in the 5 cents of land belonging to the petitioner comprised in Survey Nos.123/BC/210/7 part and Survey No.123/211/6 part of Amarambalam Village, Nilambur Taluk.
(ii) Issue such other writ order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case."
2. Petitioner is the absolute owner in possession of 5 cents of property comprising in Sy.Nos.123/BC/210/7 part and Sy.No.123/210/6 part of Amarambalam Village, Nilambur Taluk, Malappuram district. Case of the petitioner is that the said property is dry land, though, as per the records, 3 cents have shown as wetland and 2 cents as dry land. The petitioner has put up a construction in the property and approached the Panchayat for securing a building permit. Panchayat rejected the application for the building permit and it was thereupon that the writ petition was filed seeking direction to the Panchayat to number the building.
3. The Secretary of the Grama Panchayat has filed a counter affidavit WP(C) NO. 21103 OF 2010 -3- stating that the building was constructed without obtaining a building permit and therefore, the building cannot be numbered. So also it is contended that, petitioner has a statutory remedy if the Panchayat has not granted the building number to the petitioner.
4. I have heard, learned Counsel for the petitioner, and perused the pleadings and the documents on record.
5. In the writ petition, petitioner has no case that he has carried out the construction of the building after securing the building permit from the Secretary of the Amarambalam Grama Panchayat, Malappuram district. In fact, the Kerala Panchayat Building Rules came into force only in the year 2011. However, by virtue of the powers conferred on the State Government under Section 274(1) of the Kerala Panchayat Raj Act, 1994, the Kerala Municipality Building Rules 1999, was extended to panchayat areas as per G.O.(MS) No.150/2007/LSGD dated 06.06.2007. Therefore, if the construction was carried out by the petitioner any day after the order was issued by the Government extending the Kerala Municipality Building Rules to the panchayat areas, necessarily the petitioner had to take the requisite permit from the Grama Panchayat and the construction should have been carried out after securing the approved plan. From the tenure of the counter affidavit filed by the Secretary of the Grama Panchayat, it is quite clear and WP(C) NO. 21103 OF 2010 -4- evident that since the petitioner has carried out the construction without securing a permit and approved plan from the Secretary of the Grama Panchayat, the Panchayat is not bound to number the building, unless and until the construction is regularised in accordance with law .
6. Anyhow, going by the provisions of the Panchayat Raj Act, 1994, read with Kerala Municipality Building Rules, 1999, as the law applicable then, the Secretary was vested with ample powers under Rule 143 of the Rules, to regularize any construction if the construction is carried out in accordance with the Rules. Even otherwise, by virtue of Section 235AB of the Kerala Panchayat Raj Act, any unauthorised construction can be regularized by the Government in accordance with law. I am also informed that, by virtue of the orders issued by the government and prevailing now, any unauthorised construction can be regularized in accordance with law, and the prescriptions contained under the government order. In that view of the matter, there is no point in retaining this writ petition here in this court, since 11 years have elapsed and the petitioner has to take adequate steps in setting right the illegalities.
7. Therefore, the writ petition is disposed of, leaving open the liberty of the petitioner to approach the Secretary of the Grama Panchayat with suitable application to regularize the construction already carried out by the WP(C) NO. 21103 OF 2010 -5- petitioner, within one month from the date of receipt of a copy of this judgment, and if any such application is received, the Secretary shall be at liberty to consider the same, in accordance with law and attain finality within two months thereafter. However I make it clear that, if the building number is granted to the petitioner during the pendency of this writ petition in any appropriately constituted proceedings, it shall not be reopened or disturbed under any circumstances.
The writ petition is disposed of accordingly.
Sd/-
SHAJI P.CHALY JUDGE uu 25.09.2021.
WP(C) NO. 21103 OF 2010 -6- APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DOCUMENT BEARING
NO.5386/07 DATED 6.12.07 OF S.R.O, WARDOOR
EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 12.3.2010
ISSUED TO THE PETITIONER BY THE RESPONDENT
EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 5.4.2010
ISSUED BY THE RESPONDENT TO THE PETITIONER
EXHIBIT P4 TRUE COPY OF THE REPLY TO EXT.P3 DATED
19.4.2010
EXHIBIT P5 TRUE COPY OF THE NOTICE ISSUED BY THE
RESPONDENT DATED 29.5.2010
EXHIBIT P6 TRUE COPY OF APPLICATION SUBMITTED BY THE
PETITIONER BEFORE THE VILLAGE OFFICER,
AMARAMBALAM VILLAGE
RESPONDENT'S EXHIBITS:-
EXHIBIT R1(a) TRUE COPY OF THE LETTER DATED 24.02.2010
THE PETITIONER TO THE RESPONDENT