Kerala High Court
Marangattupilly Grama Panchayath vs State Of Kerala on 27 November, 2018
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY ,THE 27TH DAY OF NOVEMBER 2018 / 6TH AGRAHAYANA, 1940
WP(C).No. 24199 of 2017
PETITIONER/S:
MARANGATTUPILLY GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
MARANGATTUPILLY P.O., KOTTAYAM-686 635.
BY ADVS.
SRI.SUNIL CYRIAC
SMT.DONA AUGUSTINE
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY : PRINCIPAL SECRETARY TO
GOVERNMENT,LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DISTRICT TOWN PLANNER,
KOTTAYAM-686 002.
3 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
SAPHALYAM COMPLEX, TRIDA BUILDING,
UNIVERSITY P.O., THIRUVANANTHAPURAM-695034,
REPRESENTED BY ITS SECRETARY.
4 JOHN M. SEBASTIAN,
S/O.SEBASTIAN, MANIKAMKUZHI HOUSE,
KURIANAD P.O., MONIPPALLY,
KOTTAYAM-686 636.
BY ADVS.
R1 TO R3 BY SRI. PAUL ABRAHAM VAKKANAL, GOVERNMENT
PLEADER
R4 BY SRI.DOMSON J.VATTAKUZHY
R4 BY SRI.MATHEW JOHN (K)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.11.2018, THE COURT 27.11.2018 DELIVERED THE FOLLOWING:
W.P.(C) No.24199 of 2017 2
JUDGMENT
This writ petition is filed by the petitioner Grama Panchayat, challenging Ext.P10 order passed by the Ombudsman for Local Self Government Institutions dated 21.01.2017, directing the Secretary of the Grama Panchayat to assign building numbers to the 4th respondent, and for further related and consequential reliefs. Material facts for the disposal of the writ petition are as follows:
2. The 4th respondent along with another constructed a three storied commercial building abutting State Highway No.1 at Monippally Junction within the limits of the petitioner Grama Panchayat, and thereafter made an application before the Secretary of the Panchayat for regularizing the unauthorized construction and for assignment of building number. Thereafter, 4th respondent and his brother approached this Court by filing W.P.(C) No.21748 of 2013, seeking directions to the Panchayat for expeditious disposal of their application for assignment of building number, which was disposed of as per Ext.P1 judgment, directing the 6th respondent therein to consider and pass appropriate orders on the application submitted by the petitioners within three weeks from the date of receipt of a copy of the judgment. Accordingly, W.P.(C) No.24199 of 2017 3 Ext.P2 order dated 16.04.2014 was issued, dismissing the application for regularization and for assigning building number. Ext.P2 order has become final, since no appeal was preferred against the same.
3. Later on, the 1st respondent introduced the Kerala Panchayat Building (Regularization of Unauthorized Construction) Rules, 2014 for regularization of unauthorized constructions made before 31.03.2013.
Accordingly, the 4th respondent along with the co-owner moved an application for regularization in accordance with the said Rules. In contemplation of Rule 5(2) of the Rules, 2014, the application and plans were forwarded by the petitioner to the 2nd respondent, along with a letter dated 26.12.2014. However, it was returned as per Ext.P3 with a direction to re-submit the application and plans after rectification of the mistakes enumerated therein. A copy of which was marked to the 4 th respondent also. Since Exts.P3 and P4 did not evoke any response from the 4th respondent, petitioner issued Ext.P5 reminder to the 4th respondent, requiring him to submit the rectified application and plan before 25.06.2015 in order to re-submit the same before the 2nd respondent. However, 4th respondent did not re-submit the application for regularization. It is also pointed out that, if the W.P.(C) No.24199 of 2017 4 4th respondent was aggrieved by any decision taken by the petitioner, 4th respondent was left with a remedy to provide appeal against the decision of the 2nd respondent. Instead, the 4th respondent preferred a complaint dated 19.12.2015 before the 3rd respondent as O.P.No.1901 of 2015, to take action for allotting building number, evident from Ext.P6.
4. Petitioner participated in the said proceedings and has filed a detailed statement, enumerating the entire circumstances pointed out above and the reasons for not regularizing the unauthorized construction and refraining from allotting the building number. Ext.P8 is a reply statement submitted by the 4th respondent to Ext.P7 statement. Ext.P9 is also an additional statement filed by the petitioner. However, the 3rd respondent without taking into account the submissions made in Exts.P7 and P9 statements, and overlooking the statutory prohibition contained under Sec.271M(4)(b) of the Kerala Panchayat Raj Act, 1994, passed Ext.P10 order, directing the petitioner to provide permanent building numbers within three months from the date of receipt of a copy of the order.
5. Therefore, the case of the petitioner is that, W.P.(C) No.24199 of 2017 5 the Ombudsman did not have any power, since the 4th respondent had a statutory remedy under Rule 151 of the Kerala Panchayat Building Rules, 2011 [for short, 'the Rules, 2011'], to move the Tribunal for Local Self Government Institutions. It is also pointed out that, the order of the Ombudsman to assign building numbers cannot be sustained, since the construction carried out by the petitioner without securing permit was not regularized. The order of the Ombudsman is not implemented, since the order is stayed by this Court in this writ petition.
6. A detailed counter affidavit is filed by the 4th respondent, refuting the allegations and claims and demands raised by the petitioner. According to the 4th respondent, the Ombudsman has sufficient power to pass Ext.P10 order, since the Ombudsman was considering the issue with respect to substantial justice to be imparted to the 4th respondent, and even if there is any inhibition for exercising the power conferred under Sec.271 of Act, 1994, since the order passed is not causing any prejudice to the petitioner Panchayat, the order passed by the Ombudsman is to be respected and implemented.
7. That apart, it is stated that, the 4th W.P.(C) No.24199 of 2017 6 respondent's brother Mamman obtained 4.22 Ares of property in Re-survey No.41/10 of Monippally Village, and on the very same day, the 4th respondent purchased 1.73 Ares and the two items of property form a compact plot. During 2005, 4th respondent and his brother approached the Secretary of the Grama Panchayat for permission to construct a building in the said plot. The Secretary at that time issued two no objection certificates, one in favour of the 4th respondent and the other in favour of his brother, evident from Exts.R4(a) and R4(b).
8. According to the 4th respondent, the only insistence made by the Panchayat in the matter of construction of the building is that, the construction should conform to Sec.220(b) of the Kerala Panchayat Raj Act, 1994. That means, a person constructing a building should leave a vacant space of 3 metres from the road margin to the construction made. According to the 4th respondent, the construction in question as it now stands has been made after leaving much more than 3 metres. It is also pointed out that, in order to construct the building abutting on the northern boundary of neighbouring property owner, viz., Baby Sebastian, Ext.R4(c) consent is secured and it was based on Exts.R4(a) to R4(c), the construction was started and the W.P.(C) No.24199 of 2017 7 structural work up to the 2nd floor and the entire work including internal works up to the 1st floor were completed by February, 2007. However, due to the financial difficulties, the internal partition works in the 2nd floor could not be completed.
9. It is also submitted that, the 4th respondent had left a distance of more than 5.2 metres from the boundary of the property where the building is constructed i.e., from the highway boundary there is a distance of 5.20 metres. Even excluding a sunshade which has a width of 1.2 metres, there is a clear distance of 4 metres from the boundary of the highway, which is sufficient enough to comply with the mandate contained under Sec.220(b) of Act, 1994. It was after completion of the entire construction, the application was filed for assigning building number in March, 2007. But the Secretary kept on adjourning the request in one pretext or the other. It is also pointed out that, the Secretary has addressed a letter dated 28.04.2009 to the Executive Engineer, Kerala Public Works Department, Muvattupuzha, and the Executive Engineer has issued Ext.R4(d) NOC dated 25.06.2009. In Ext.R4(d), the Executive Engineer insisted that there should be a clear distance of 5 metres from the boundary of the road to any part of the building W.P.(C) No.24199 of 2017 8 including porches, sunshade, roof projections, overhangs, stairs etc. etc.
10. Therefore, according to the 4th respondent, it is clear and evident that 4th respondent completed the construction way back in 2009, and therefore, the insistence made by Ext.R4(d) to leave a distance of 5 metres is impossible of compliance, according to the 4th respondent, the construction was carried out on the basis of the NOC issued by the petitioner Panchayat. It is the further case of the 4th respondent that, even after making persistent efforts, the Panchayat has not cared to issue building numbers to the 4th respondent. It was thereupon that application was filed before the Ombudsman seeking appropriate reliefs. The 4th respondent has also produced Ext.R4(o) regularization application submitted under Rules, 2014 dated 14.11.2014.
11. I have heard learned counsel for the petitioner, learned Government Pleader as well as the learned counsel appearing for the 4th respondent, and perused the pleadings and the documents on record.
12. The paramount contention advanced by learned counsel for the petitioner is based on Sec.271M of Act, 1994. Section 271M deals with the enquiry to be conducted by the Ombudsman on any complaint filed before W.P.(C) No.24199 of 2017 9 it under Act, 1994. However, sub-section (4) thereunder stipulates that, the Ombudsman shall not enquire into matters relating to; (a) any matter in respect of which a formal and public enquiry has been ordered by Government;
(b) any matter in respect of which a remedy is available from the Tribunal for Local Self Government Institutions constituted under Sec.271S etc. etc.
13. Therefore, the sum and substance of the contention advanced by learned counsel for the petitioner is that, as per Rule 151 of the Rules, 2011, the 4th respondent had a remedy to prefer appeal against the action of the Town Planner in returning the application submitted by the 4th respondent for regularization. Rule 151 of the Rules, 2011 read thus:
"151. Appeal.--(1) Any person aggrieved by an order passed by the Secretary may submit an appeal to the Tribunal for Local Self Government Institutions under section 271S of the Kerala Panchayat Raj Act, 1994.
(2) Without prejudice to the provisions contained in the Act, an appeal may be filed against any order:-
(i) approving or disapproving building site;
(ii) granting or refusing permit to execute work;
(iii)confirming, modifying or cancelling the notice requiring alteration of work;
(iv) confirming the provisional order requiring demolition of building or part thereof or filling W.P.(C) No.24199 of 2017 10 up of well;
(v) regularizing construction or reconstruction or alteration of building or digging of well or rejecting such regularization; and
(vi) stopping erection of building or execution of work;
(vii)passed or action taken by the Secretary under these rules;
(viii) passed by the Chief Town Planner or District Town Planner".
14. Therefore, in my considered view, even going through the complaint filed by the 4th respondent, there is not even an explanation as to why the 4th respondent did not prefer an appeal before the Tribunal. It is also clear that the returning of the regularization application shall be intimated to the 4th respondent also and so much so, there is no case for the 4 th respondent that the 4th respondent was not aware of returning of the application by the Town Planner to the Panchayat for rectifying the defects in the regularization application submitted by the 4th respondent. It is also clear that, a letter was addressed by the Secretary of the Panchayat, since the 4th respondent did not respond to the action taken by the Town Planner, evident from Ext.P5 dated 19.06.2015. This is not under much dispute. Therefore, it is quite clear and evident that 4 th respondent did not care to file an appeal against the action of the Town W.P.(C) No.24199 of 2017 11 Planner as provided under Rule 151 of the Rules, 2011. Therefore, there is a clear prohibition for the Ombudsman to entertain any complaint submitted by the 4th respondent.
15. Looking at that angle, Ext.P10 order passed by the Ombudsman, directing the Panchayat to number the building cannot be sustained under law. It is also clear from Ext.P10 order that the Ombudsman has disbelieved the version put forth by the 4th respondent that construction of the entire building was completed during January, 2007, and further held that, 4th respondent is not entitled to get any relaxation from the Panchayat Building Rules, 2011. However, the Panchayat was directed to number the building. In my considered view, taking into account all these aspects, Ext.P10 order passed by the Ombudsman cannot be sustained under law. Accordingly, it is quashed.
16. However, fact remains, 4th respondent has submitted a regularization application which was returned as per Ext.P3 order dated 30.01.2015 for rectification of various defects. Since the construction is complete and the 4th respondent has already approached the Secretary of the petitioner Panchayat for regularization and in view of 12 defects pointed out in Ext.P3, I think it is W.P.(C) No.24199 of 2017 12 only appropriate that 4th respondent is given reasonable opportunity to pursue the regularization application submitted after rectifying the defects pointed out in Ext.P3. Therefore, if 4th respondent rectifies the defects and submits proper application before the Secretary of the petitioner Panchayat within two months from the date of receipt of a copy of this judgment, the regularization application shall be finalized within four months thereafter. However, in the meantime, I think it is only appropriate that the Secretary of the Panchayat is directed to provide provisional numbers to the building constructed by the 4th respondent, in accordance with law, which will be guided by the final orders in the regularization application, as directed above.
The writ petition is disposed of accordingly.
Sd/-
SHAJI P.CHALY JUDGE St/-
APPENDIX W.P.(C) No.24199 of 2017 13 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 25.02.2014 IN WP(C)NO.21748/2013 OF THIS HON'BLE COURT. EXHIBIT P2 TRUE COPY OF THE ORDER BEARING NO.M2-2129/11 DATED 16.04.2014 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE LETTER BEARING NO.C.1919/2014/K.DIS DATED 30.01.2015 SENT BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE LETTER BEARING NO.M2- 3058/2014//1 DATED 07.02.2015 SENT BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE LETTER BEARING NO.M2- 3058/2014/1 DATED 19.06.2015 SENT BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE COMPLAINT DATED 19.12.2015 OF THE 4TH RESPONDENT, ALONG WITH THE NOTICE DATED 09.08.2016 IN OP NO.1901/15 OF THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE STATEMENT BEARING NO.M7- 2190/2016 DATED 19.09.2016 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE REPLY DATED 19.11.2016 FILED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE STATEMENT BEARING NO.M7- 2190/2016 DATED 21.01.2017 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 21.01.2017 IN OP NO.1901/15 OF THE 3RD RESPONDENT.
RESPONDENTS' EXHIBITS:
EXHIBIT R4(A) TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE SECRETARY TO THE 4TH RESPONDENT.
EXHIBIT R4(B) TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE SECRETARY TO THE BROTHER OF THE 4TH RESPONDENT.
EXHIBIT R4(C) TRUE COPY OF THE CONSENT LETTER DATED 15.6.2005 ISSUED IN FAVOUR OF THE 4TH W.P.(C) No.24199 of 2017 14 RESPONDENT.
EXHIBIT R4(D) TRUE COPY OF THE OBJECTION CERTIFICATE DATED 25.6.2009 ISSUED BY THE EXECUTIVE ENGINEER.
EXHIBIT R4(E) TRUE COPY OF THE RELEVANT PAGES OF THE APPLICATION FORM WITH THE CAPTION PERMIT/ REGULARIZATION SUBMITTED ON 5.6.2011. EXHIBIT R4(F) TRUE COPY OF THE LETTER ISSUED BY SECRETARY ADDRESSED TO THE ENGINEER ,LSGD.
EXHIBIT R4(G) TRUE COPY OF THE LETTER DATED 01.7.2011 ISSUED BY THE SECRETARY OF THE GRAMA PANCHAYAT TO THE EXECUTIVE ENGINEER, KSTP. EXHIBIT R4(H) TRUE COPY OF THE LETTER OF ASSISTANT ENGINEER, DATED 30.6.2011 TO THE SECRETARY OF THE GRAMA PANCHAYAT.
EXHIBIT R4(I) TRUE COPY OF THE LETTER DATED 17.4.2012 DECLINING TO ISSUE NOC ISSUED BY THE EXECUTIVE ENGINEER.
EXHIBIT R4(J) TRUE COPY OF THE JUDGMENT DATED 25.2.2014 IN WPC.NO. 21748/2013.
EXHIBIT R4(K) TRUE COPY OF THE LETTER OF SECRETARY OF THE GRAMA PANCHAYAT TO THE THE ASSISTANT ENGINEER, LSGD.
EXHIBIT R4(L) TRUE COPY OF THE REPORT OF THE ASSISTANT ENGINEER, LSGD EXHIBIT R4(M) TRUE COPY OF THE LETTER DATED 4.4.2014 ISSUED BY THE SECRETARY TO THE 4TH RESPONDENT.
EXHIBIT R4(N) TRUE COPY OF THE WRITTEN REPRESENTATION SUBMITTED BEFORE THE 4TH RESPONDENT ON 11.4.2014.
EXHIBIT R4(O) TRUE COPY OF THE APPLICATION DATED 14.11.2014.
EXHIBIT R4(P) TRUE COPY OF THE LETTER DATED 26.12.2014 ISSUED BY THE SECRETARY TO THE TOWN PLANNER, KOTTAYAM.
//TRUE COPY// P.S. TO JUDGE