Kerala High Court
Joshy vs Cherp Grama Panchayath on 21 October, 2022
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 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944
WP(C) NO. 34964 OF 2017
PETITIONER:
JOSHY
S/O. ANTONY, AGED 47,
CHELIPARAMBIL HOUSE, PERUMBILLISSERY,
CHEVOOR VILLAGE,CHERP P.O., THRISSUR DISTRICT.
BY ADVS.
SMT.M.R.REENA
SRI.P.S.SUJETH
RESPONDENTS:
1 CHERP GRAMA PANCHAYATH,
REP. BY ITS SECRETARY, CHERP P.O.,
THRISSUR DISTRICT, PIN - 680 561.
2 THE SECRETARY
CHERP GRAMA PANCHAYATH,
CHERP P.O.,THRISSUR - 680 561.
3 THE PRINCIPAL SECRETARY
LOCAL SELF DEPARTMENT (R.B),
THIRUVANANTHAPURAM - 695 001.
4 SATHIAN P.M
S/O. MADHAVAN, AGED ABOUT 55,
POOTHERI HOUSE, PERUMBILLISSERY,
CHEVOOR VILLAGE, CHERP P.O.,THRISSUR - 680 561.
BY ADVS.
SRI.P.G.DEVADAS
SRI.C.P.UDAYABHANU
SRI.R.SUDHISH
SRI.JOBY JOSEPH, SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.34964 of 2017
2
JUDGMENT
Dated this the 21st day of October, 2022 This writ petition is filed by the petitioner seeking the following reliefs:
"I. Issue a writ, order or direction in the nature of Certiorari to quash the Ext.P11 order passed by the 3 rd respondent dated 13-10-2017.
II. Issue a writ, order or direction in the nature of Mandamus or other appropriate writ directing the respondents 1 to 3 to act in accordance with the law and the rules in that regard under the Kerala Building Rules and also the directions issued by the competent authority of the Archaeology Department. III. Issue a Writ, Order or Direction in the nature of Mandamus or other appropriate Writ directing the respondents 1 to 3 to stop all further proceedings in pursuant to the Ext.P11 Order till the disposal of the Civil Suits pending before the Munsiff Court at Thrissur."
2. Petitioner is aggrieved by Exhibit P11 order passed by the Principal Secretary to Local Self Government Department, Thiruvananthapuram dated 13.10.2017, whereby, an unauthorised construction carried out by the 4 th respondent W.P.(C)No.34964 of 2017 3 was directed to be provisionally regularised and to assign provisional building number subject to the suit pending by and between the petitioner and the 4th respondent before the civil court.
3. Allegedly, the 4th respondent has carried out an unauthorised construction and the construction was in violation of the Kerala Panchayat Building Rules, 1994. If the construction was unauthorised but in accordance with the Rules, the Secretary of the Panchayat is vested with ample powers to regularise the construction. But even if the construction is in violation of the Rules, the State Government is vested with powers under section 235AB of the Kerala Panchayat Raj Act, 1994 to regularise the construction in accordance with the circumstances enumerated thereunder. The said provision reads thus:
"235AB. Power to regularise the unlawful building construction:(1) Notwithstanding anything contained in this Act, if any person or institution unlawfully developed any land or constructed any building on or before 31st December 2013, the W.P.(C)No.34964 of 2017 4 Government may, on realisation of a compounding fee as prescribed, regularise such land development or building construction:
Provided that such regularisation shall not adversely affect any planning scheme or master plan, approved under the existing provisions of the Town Planning Act:
Provided further that no building construction shall be regularised, which is done in contravention of the provisions in respect of the security arrangements provided in this Act, or the building rules made thereunder.
(2) Application for regularisation under sub-section (1) shall be submitted within such time and in such manner as prescribed.
Explanation. - For the purpose of this Act, unlawful construction means any construction for which the Secretary shall have no power to regularise under section 235W of this Act or any construction or reconstruction done in contravention of the provision of this Act or the building rules made thereunder or in contravention of any approved plan or any construction done in deviation of any exemption order sanctioned by the Government or any conditions specified therein."
4. Apparently, invoking the said powers and the succeeding notification issued alone, the Government has W.P.(C)No.34964 of 2017 5 passed Exhibit P11 impugned order. It is true, the Government has passed the said order taking note of a civil suit pending by and between the parties before the Munsiff's Court in regard to the fixation of boundary and that is why the Government directed to give provisional number to the building subject to the outcome of the suit proceedings. When a building is constructed unauthorisedly or illegally, the Panchayat is guided appropriately as per section 235AA of the Kerala Panchayat Raj Act, 1994, which reads thus:
"235AA. Levying of tax for the building constructed unlawfully. - (1) Notwithstanding anything contained in this Act or the rules made thereunder, where any person has unlawfully constructed or reconstructed any building, such building shall, without prejudice to any action that may be taken against that person, be liable to pay the sum of property tax that would have been paid, had the said building been constructed lawfully, together with twice the amount, towards property tax of the building so constructed unlawfully with effect from the date of completion or utilisation of that for any of the purposes mentioned in sub-section (2) of section 203, whichever is earlier, till the date of demolition of that building.
(2) Nothing contained in sub-section (1) shall W.P.(C)No.34964 of 2017 6 preclude the Secretary from proceeding against a person under section 235 W of the Act and the owner shall not have right to get any compensation due to any action taken by the Secretary under this section. (3) No building number as provided under section 235 shall be affixed to the building constructed unlawfully and they shall be given special number as prescribed. Any delay in giving special number shall not be a bar to levy property tax retrospectively under sub-section (1). (4) Secretary shall maintain ward-wise special registers recording the survey number of the land on which the building has been constructed unlawfully, name and particulars of the owner of the land, special number given to the building, details of the property tax levied and collected for the building.
(5) The Village Panchayat shall not grant permit or licence to use the building constructed unlawfully and given a special number as provided in sub-section (3) and liable to be proceeded against under section 235W, for any trade, commerce or industrial purposes or any other purposes and if the Village Panchayat has granted any permit or licence, that shall be reconsidered and cancelled after giving notice to the owner of the building and the licensee."
5. Therefore, it is quite clear and evident that irrespective of any regularisation order, the Panchayat is W.P.(C)No.34964 of 2017 7 liable to assign a special number to any illegal construction and impose double the normal tax. According to the learned counsel for the petitioner, Exhibit P11 order was passed by the Government in violation of the principles of natural justice since the petitioner was not provided with an opportunity of hearing. The case projected by the petitioner is that the 4 th respondent has carried out the construction of a building encroaching into the property of the petitioner. Apparently, the petitioner has filed O.S.No.4136 of 2013 before the Munsiff's Court, against the 4th respondent, seeking fixation of boundary and a perpetual injunction. Petitioner has also filed O.S.No.1692 of 2014 before the Munsiff's Court, Thrissur seeking a decree not to assign number to the building constructed by the 4th respondent and further not to issue any occupancy certificate. But no such relief was granted. Therein also, the petitioner has sought for a perpetual injunction. In my considered opinion, taking into account the said aspects alone, the State Government has regularised the construction provisionally and directed the Secretary of the Grama W.P.(C)No.34964 of 2017 8 Panchayat to issue a provisional building number, which is made subject to the result of the suit proceedings.
6. Learned counsel for the 4 th respondent submitted that the aforesaid suits are still pending consideration and the injunction passed by the Munsiff's Court, Thrissur in I.A.No.12291 of 2013 in O.S.No.4136 of 2013 is only restraining the 4th respondent from making any further construction in plaint C schedule property and from making any construction in the plaint schedule property except in accordance with the Building Rules.
7. Both sides submit that the said injunction order is still in force. Learned counsel for the petitioner also submitted that against an injunction order passed in O.S.No.1692 of 2014, the 4th respondent has preferred C.M.A. No.16 of 2015 before the District Court, Thrissur which was dismissed and aggrieved, though O.P.(C) No.2461 of 2015 was filed before this court, it was dismissed as per Exhibit P6 judgment dated 18.11.2015. Learned counsel for the petitioner has pointed out that even though a relief was sought in the original W.P.(C)No.34964 of 2017 9 petition for numbering the building and issuing the occupancy, that was declined and, therefore, Exhibit P11 order is bad.
8. I am of the view that the petitioner has no case that Exhibit P11 is challenged by him in the civil suits. Evidently, the Government is not a party in the suit proceedings also. Learned counsel for the petitioner submitted that the Panchayat is a party. In my considered view, when a power is conferred on the Government under the Kerala Panchayat Raj Act, 1994 to regularise a construction, Panchayat cannot overlook the said order, and till such time the order is vacated, the Panchayat is duty bound to carry out the directions contained in the said order. Anyhow, the Government was cautious enough to ensure that the directions issued by the Government regularising the construction is subject to the suit proceedings and that is why, in the impugned order, the Government has directed the Secretary of the Grama Panchayat to assign only provisional number subject to the suit proceedings by and between the parties. Therefore, it W.P.(C)No.34964 of 2017 10 thus means, if a decree is passed in favour of the petitioner interfering with the construction made by the 4th respondent, the Panchayat has to withdraw the provisional number assigned. Apart from all these aspects, the writ petition was pending before this court without any interim order against Exhibit P11 and, therefore, the 4 th respondent has occupied the premises, it is submitted.
9. Considering the facts and circumstances and hearing learned counsel Smt. M.R. Reena for the petitioner; learned counsel Sri. P.G. Devadas for respondents 1 and 2; learned Senior Government Pleader Sri. Joby Joseph and learned counsel Sri. C.P. Udayabhanu for the 4th respondent, I am of the view that no interference is required to Exhibit P11 order as of now. However, I make it clear that the directions issued in Exhibit P11 would be subject to the outcome of the suits pending by and between the parties as said above.
I also make it clear that by making the observations as above and dismissing this writ petition, it may not be construed as an expression of opinion on the merits of the W.P.(C)No.34964 of 2017 11 matter or rival interest of the parties. Needless to say, all questions of fact and law in regard to the construction of the building, the boundary dispute and all other aspects which are subject matter of the suits, are left open.
Sd/-
Shaji P.Chaly Judge vpv W.P.(C)No.34964 of 2017 12 APPENDIX OF WP(C) 34964/2017 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO. 4136/2013 PENDING BEFORE THE MUNSIFF COURT THRISSUR. EXHIBIT P2 A TRUE COPY OF THE JUDGMENT IN WPC 25926/13 DATED 23.10.2013.
EXHIBIT P3 A TRUE COPY OF THE INJUNCTION ORDER IN IA NO. 2291/2013 IN OS NO. 4136/13 DATED 05.9.2013.
EXHIBIT P4 A TRUE COPY OF THE COMMISSION REPORT IN OS NO. 4136/13 DATED 25.9.2013.
EXHIBIT P5 A TRUE COPY OF PROCEEDINGS OF R1 DATED 26.9.2014.
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT IN OPC 2461/2015 DATED 18.11.2015.
EXHIBIT P7 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 16.11.2015.
EXHIBIT P8 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY R1 DATED 12.11.2015.
EXHIBIT P9 A TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS, TRIVANDRUM DATED 27.4.2016 OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P10 A TRUE COY OF THE DECISION BY THE PANCHAYAT DATED 17.5.2016 AS PER P9 OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P11 A TRUE COPY OF THE ORDER OF THE PRINCIPAL SECRETARY DATED 13.10.2017 OBTAINED FROM RESPONDENT 1.
//TRUE COPY// P.A. TO JUDGE