Kerala High Court
G.George vs Pooyappally Grama Panchayath on 7 December, 2020
Equivalent citations: AIRONLINE 2020 KER 1164
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A.No. 1463/2020 :1:
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942
WA.No.1463 OF 2020
AGAINST THE JUDGMENT DATED 05.10.2020 IN WP(C) 1481/2019(I) OF HIGH
COURT OF KERALA
APPELLANTS/PETITIONES:
1 G.GEORGE
AGED 79 YEARS
S/O.GEEVARGHEESE, GIEGEOCOTTAGE, CHENKULAM P.O.,
KOLLAM-691 510.
2 K.THAMBI,
THELLAKATH TL COTTAGE, CHENKULAM P.O., KOLLAM-691 510.
BY ADV. SHRI.M.V.S.NAMPOOTHIRY
RESPONDENT/RESPONDENT:
POOYAPPALLY GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, POOYAPPALLY P.O.,
KOLLAM-691 537.
SMT. BINDU SREEKUMAR, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No. 1463/2020 :2:
CR
Dated this the 7th day of December, 2020 .
JUDGMENT
SHAJI P. CHALY, J.
The captioned writ appeal is preferred by the writ petitioner in W.P.(C) No. 1481 of 2019 challenging the judgment of the learned single Judge dated 05.10.2020, whereby the learned single Judge disposed of the writ petition directing the Secretary of the Pooyappally Grama Panchayat, the respondent herein, to take a decision in the application submitted by the appellants for regularisation after notice to the appellants and the owners of the land, including one Mr. M. Alexander within a period of two months and in that process the Panchayat was directed to verify in regard to the status of the civil suit pending by and between the parties and also the orders passed therein. It is, thus, challenging the legality and correctness of the said judgment, the appeal is preferred.
2. Brief material facts for the disposal of the writ appeal are as follows:
The first appellant is one of the members of the Governing W.A.No. 1463/2020 :3: Council and the second appellant is the President of the Parent Teachers' Association of St. Thomas High School, Punnakode, Kollam District. A building having 400 square meters was constructed in the year 2016 to accommodate hi-tech classrooms. According to the appellants, after the completion of construction, a completion report duly signed by a qualified Engineer was submitted to the Panchayat. The Panchayat, instead of allotting building number and occupancy certificate, has been delaying the matter indefinitely by stating untenable objections, is the contention.
3. The case projected by the appellant was that as evident from Ext. P11, the Government has supplied all necessary requirements essential for starting hi-tech classrooms and teaching materials. Therefore, as the Panchayat is not issuing building number and occupancy certificate, irreparable injury and loss was caused to the school. It is also submitted that, thus the development of the school and the future of the students are also seriously affected by the arbitrary conduct of the Panchayat and therefore, they sought for issuance of a writ of mandamus or any other appropriate writ, order or direction directing the Grama Panchayat to issue a building number to the newly constructed building for the St. Thomas High School, Punnakode and also the occupancy certificate immediately. W.A.No. 1463/2020 :4:
4. The learned single Judge, during the process of adjudication, has realised that the building was constructed for the school without securing a permit from the Grama Panchayat, which is mandatorily required in accordance with the provisions of the Kerala Panchayat Raj Act 1994 ("Act,1994" for convenience) and the Kerala Panchayat Building Rules, 2011 ('Rules, 2011' for convenience).
5. The sum and substance of the contention advanced by the appellants was that even though an application was submitted, the same was not considered by the Secretary of the Grama Panchayat within the time frame fixed under the Act, 1994 and the Rules, 2011 and therefore, a deemed building permit was secured by the appellants in contemplation of the law.
6. The paramount contention advanced in the appeal is that the conduct of the Secretary is biased and he is supporting other members of the Managing Committee on extraneous considerations and therefore, it was not proper on the part of the learned single Judge to relegate the appellants/writ petitioners to the Secretary of the Grama Panchayat, who owes allegiance to the other members of the Managing Committee. It is also contented in the appeal that instead of relegating the appellants to the Secretary of the Grama Panchayat, the W.A.No. 1463/2020 :5: learned single Judge should have issued a positive direction directing the respondent Panchayat to issue building number and occupancy certificate. Evidently, a civil suit is pending consideration before the Munsiff's Court, Kottarakkara as O.S. No. 451 of 2018 and orders were passed in interlocutory applications, which apparently was taken in appeal before the Sub Court, Kottarakkara and is pending as C.M.A. No. 5 of 2019.
7. It was taking stock of the above facts that the learned single Judge has issued directions to the Secretary of the Grama Panchayat to take a decision in the application for regularisation of the construction carried out by the school authorities after hearing the appropriate parties.
8. We have heard Sri. M.V. S Nampoothiri appeared for the appellants and Smt. Bindu Sreekumar for the respondent Grama Panchayat, and perused the pleadings and materials on record.
9. The sole question arises for consideration is whether any interference is warranted to the judgment of the learned single Judge. Admittedly, no building permit was secured by the appellants or the school authorities in order to carry out the construction of the building in question in the year 2016 or any time before. Chapter XXI of the W.A.No. 1463/2020 :6: Act, 1994 deals with buildings and it delineates the requirements to be satisfied before any construction is carried out and as per Section 235B, no construction shall be carried out otherwise than in accordance with the provisions of the said part. The provisions contained there clearly prohibits any construction of a building without securing approval of the site and permission from the Secretary of the Panchayat. Section 235I mandates that the Secretary shall consider the site approval application and take a decision either to approve or reject within thirty days after the receipt of the application. As per Section 235J, the Secretary has to reject or grant permission for executing the work within thirty days after the approval of the site. If not, the remedy available to the aggrieved person is to make an application to the Village Panchayat under Section 235K of Act, 1994 and if the Village panchayat is not taking a decision within thirty days, thereafter alone a deemed permit would accrue to an applicant. Rule 7 of Rules, 2011 clearly mandates that every person other than a Central or State Government department, who intends to construct or reconstruct a building or make alteration or addition or extension to a building, shall apply in writing to the Secretary in the form in Appendix A together with plans and statements in triplicate as required under the Rules and documents to prove ownership of the land concerned W.A.No. 1463/2020 :7: and payment of application fee as in Schedule I along with a copy of the certificate of registration of the Architect or Building Designer or Engineer or Town Planner or Supervisor as the case may be, who has prepared and signed the plans, drawings and statements. The said provisions make it clear that if any construction is carried out without a permit, it would be illegal and the Secretary of the Grama Panchayat is vested with ample powers to interfere with any construction carried out so, under Chapter XXI of Act, 1994. However, in the case at hand, admittedly the construction was completed without the approval of the site and permission to construct and thereafter, the appellants approached the Secretary of the Grama Panchayat for securing the occupancy certificate and building number.
10. Fact remains, in spite of the fact that construction was carried out without securing a permit, the Secretary is vested with powers under Rule 134 of the Rules, 2011 to regularise the construction, which reads thus:
"134. Power of the Secretary to regularise certain constructions.- 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 W.A.No. 1463/2020 :8: this 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 these rules:
Provided further that such power shall not relieve the Secretary of his responsibility in detecting and preventing such work and in taking other actions as per these rules:
Provided also that where the construction or work was commenced, being carried on or completed after the statutory period specified in these rules, such construction or work shall be considered as duly permitted and not one requiring regularization."
11. Therefore, there is a clear remedy available to the appellants to regularise the illegal constructions carried out without securing a permit. It was accordingly, that the learned single Judge directed the Secretary of the Grama Panchayat to consider the application submitted by the appellant for regularization of the illegal construction carried out, of course, subject to the provisions contained under Rule 134 of Rules, 2011, and subject to the other conditions contained in the said provision and other relevant provisions of Act, 1994 and the Rules, 2011.
W.A.No. 1463/2020 :9:
12. Be that as it may, a legal question was raised by the learned counsel for the appellants that the appellants have secured a deemed permit, since the application submitted by the appellants for building permit was not considered by the Secretary of the Grama Panchayat. In our considered opinion, the said stand adopted by the learned counsel for the appellants is not correct, because as per Section 235K of Act, 1994, the appellants ought to have submitted an application to the Village Panchayat and on expiry of thirty days from then alone appellants were entitled to secure a deemed permit. Similar and corresponding are the provisions contained under Rules 14 to 16 of the Rules, 2011.
13. No doubt, if an application was submitted by the appellant seeking building permit, the Secretary was duty bound to act in accordance with Rule 15 of the Rules, 2011. But, if no action was taken by the Secretary in contemplation of the said Rule, can it be said that a deemed permit was secured by the appellants or school authorities in contemplation of Section 236 of the Act, 1994 dealing with the general provisions regarding the licences and permissions as contented by the appellants.
14. Answer would be an emphatic no, because Section 236(3) of W.A.No. 1463/2020 : 10 : Act, 1994 is a general provision dealing with licences and permissions, and it would not come into play, in view of the specific provisions discussed above.
15. For the sake of convenience, Rule 16 of the Rules, 2011, which prescribes the modality in the case of refusal on the part of the Secretary to comply with the statutory requirement as per Rule 15 of Rules, 2011, is extracted hereunder :
"16. Reference to Village Panchayat where the Secretary delays to grant or refuse to approve permission.- (1) The Panchayat shall, if the Secretary makes delay in granting or refusing approval for a building site, neither gives nor refuses permission to execute any work within thirty days from the date of receipt of the application, on the written request of the applicant, be bound to determine whether such approval or permission should be given or not.
(2) Where the Village Panchayat does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, and the applicant may proceed to execute work, but not so as to contravene any provision of the Act or these rules or bye-laws made thereunder.
Provided that such execution of work shall be considered as duly permitted and not one for regularisation and the permit shall be issued as per rules even if the work has been commenced or being carried on or W.A.No. 1463/2020 : 11 : completed if it otherwise complies with the provisions of rule."
16. Therefore, the attempt made by the learned counsel for the appellant that the construction was carried out on the basis of a deemed permit cannot be sustained under law. Rule 25 of the Rules, 2011, which deals with completion certificate, development certificate and occupancy certificate, reads thus:
"25. Completion certificate, development certificate and occupancy certificate.- (1) Every owner shall, on completion of the development or 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 W.A.No. 1463/2020 : 12 : 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 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."
18. Therefore, at that stage of the proceedings also, the Secretary of the Grama Panchayat is vested with ample powers to consider the construction carried out and to ascertain whether they are W.A.No. 1463/2020 : 13 : in accordance with the Rules, 2011. Taking into account all the above aspects, we do not think the appellants have made out a case justifying interference with the judgment of the learned single Judge. Therefore, it is explicit that the provisions considered above is a code and course by itself to be undertaken by the appellants to get the constructions regularised.
Needless to say, the writ appeal fails and accordingly, it is dismissed.
S. MANIKUMAR, CHIEF JUSTICE.
SHAJI P. CHALY, JUDGE.
Rv