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Kerala High Court

Chacko vs Kottangal Grama Panchayath on 24 October, 2018

Author: Hrishikesh Roy

Bench: Hrishikesh Roy, A.K.Jayasankaran Nambiar

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

     THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY

                                &

     THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

 WEDNESDAY,THE 24TH DAY OF OCTOBER 2018 / 2ND KARTHIKA, 1940

                        WA.No. 2078 of 2018

AGAINST THE ORDER/JUDGMENT IN WP(C) 25129/2018 DTD.10.8.2018


APPELLANT/PETITIONER:

            CHACKO,S/O K.C. CHACKO,
            THANNIMOOTTIL HOUSE, KULATHOOR P.O,
            KOTTANGAL, MALLAPPALLY,
            PATHANAMTHITTA DISTRICT,
            REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
            SAJAN JACOB,S/O K.C. CHACKO,
            KULATHOOR P.O,KOTTANGAL, MALLAPPALLY,
            PATHANAMTHITTA DISTRICT.

            BY ADVS.SRI.T.P.PRADEEP
            SRI.P.K.SATHEES KUMAR
            SRI.S.SREEDEV

RESPONDENTS/RESPONDENTS:

      1     KOTTANGAL GRAMA PANCHAYATH,
            REPRESENTED BY ITS SECRETARY,
            KULATHOOR P.O, MALLAPPALLY,
            PATHANAMTHITTA DISTRICT, PIN-689588.

      2     THE SECRETARY,
            KOTTANGAL GRAMA PANCHAYATH, KULATHOOR P.O.,
            MALLAPPALLY, PATHANAMTHITTA DISTRICT-689588.

      3     THE TAHASILDAR,TALUK OFFICE,
            MALLAPPALLY P.O., PATHANAMTHITTA-689586.

      4     THE VILLAGE OFFICER,KOTTANGAL VILLAGE,
            KULATHOOR P.O., MALLAPPALLY, PATHANAMTHITTA-
            689588.

            R1, R2 BY ADV.SRI.S.JUSTUS
            R3, R4 BY GOVT PLEADER SRI.ARAVIND KUMAR BABU

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.10.2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 WA.2078/18

                                         2




                                   JUDGMENT

Hrishikesh Roy, C.J.

1. The petitioner constructed a commercial building having a plinth area of 88.67 sq.m., by securing building permit (Ext.P1), from the Secretary of the Kottangal Grama Panchayat. The construction of the building was completed but the plea for numbering the building and providing the occupancy certificate was not considered by the authority, on the ground that there is confusion on the boundaries of the property. In the communication dated 26.2.2018 (Ext.P5), the Secretary of the Kottangal Grama Panchayat has noted that the application for numbering the building can be considered only after curing the following two defects:

"1. Difference in plot area

2. Drawing from village showing the boundaries."

2. In pursuance of the above, the petitioner has filed the application on 17.7.2018 (Ext.P6), claiming that the boundaries of the property purchased by him, are clearly demarcated in the sale deeds but while the building plan was prepared in accordance with the re-survey Field Measurement Book (FMB), the position of the property has been erroneously demarcated. Accordingly, a request was made for inspection of the property and to correct the position in the FMB.

3. Aggrieved by the delay in considering the Ext.P6 representation, the petitioner filed the W.P(C).25129/18 and that case was disposed of by judgment dated 10.8.2018 with the following order:

". . . . . . . . . . . . . . . . . . . . . . . . . . . .

4. Learned counsel for the petitioner reiterated the contentions raised in the writ petition. Learned Government Pleader pointed out that the relief sought for in Ext.P6 to correct the FMB register, is not possible under law. Learned counsel for the petitioner pointed out that this is an area where resurvey was carried out and by a mistake in the re-survey, the entire extent of the property is not included. If there is any correction in the re-survey, necessarily petitioner will have to make an application under the Surveys and Boundaries Act, and the appended Rules. That exercise is not undertaken by the petitioner. Therefore, taking into account the pleadings of the petitioner and the pros and cones of the subject matter, petitioner can be permitted to submit an application before the resurvey authority in accordance with law. Petitioner is given the liberty to do so within three weeks from the date of receipt of a copy of this judgment and the resurvey authority may consider the said application in accordance with law, and finalise the proceedings, at the earliest and at any rate within two months from the date of receipt of a copy of this application.

. . . . . . . . . . . . . . . . . . . . . . . . . . . "

4. Today the learned counsel for the appellant/petitioner projects that the consequential application under the Surveys and Boundaries Act was filed in the second week of September. He accordingly submits that while the application is being considered, the occupancy certificate can be granted on provisional basis.

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5. However, we are of the considered opinion that granting of provisional certificate in such backdrop would not be justified in as much as, there is uncertainty on whether the commercial building was constructed, in the property purchased by the petitioner. Only after verification is made on the legality of the construction, the occupancy certificate can be issued, for the building in question.

6. For the foregoing, we are disinclined to entertain this Writ Appeal and the same is dismissed. However the authority must act on the application filed by the petitioner, within the time granted by the learned single Judge in the impugned judgment in the W.P(C).25129/18.

Sd/-

HRISHIKESH ROY CHIEF JUSTICE Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE kkb.

/True copy/