Kerala High Court
Kuttichal Grama Panchayath vs State Of Kerala on 18 January, 2019
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 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940
WP(C).No. 4870 of 2014
PETITIONER/S:
KUTTICHAL GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, KUTTICHAL.P.O.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT/S:
1 STATE OF KERALA
REP. BY SECRETARY TO LOCAL SELF INSTITUTION,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 K.PARAMESWRAN
MALLIKA BHAVAN, KUTTICHAL, KUTTICHAL.P.O., NEYYARDAM.
3 THE SUB INSPECTOR OF POLICE
NEYYARDAM POLICE STATION, THIRUVANANTHAPURAM-695 572.
BY ADV. SRI.G.SUDHEER
GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 4870 of 2014
2
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:
I) Issue a writ of certiorari or any other writ and quash Ext.P8 and Ext.P10 orders;
II) To declare that Ext.P10 order is bad under law and Tribunal has no authority to issue the contempt proceedings for non-compliance of the order.
III) Issue other writ or direction which this Hon'ble Court may deem fit on the facts of the case."
2. Petitioner is a Local Self Government Institution. Petitioner was the 1st respondent in Appeal No.816/2012 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. 2 nd respondent was the appellant, challenging the order passed by the Secretary of the Panchayat dated 26.9.2012. The said appeal was allowed by the Tribunal as per Ext.P8 order and directed the Secretary of the Panchayat to reconsider the application submitted by the 2nd petitioner for numbering the building.
3. On a perusal of the pleadings and hearing respective Counsel, the issue involved in the writ petition is that, after securing a permit for changing the roof of the building in question, 2 nd respondent has constructed certain pillars. Therefore, according to the Panchayat, the construction of the pillars is without securing WP(C).No. 4870 of 2014 3 permit from the Panchayat and the same will not come under 'repair' as provided under Rule 10 of the Kerala Panchayat Building Rules, 2011 (hereinafter referred to as 'Rules 2011' for short). I find force in the said contention on a scrutiny of Rule 10 of Rule 2011 which reads thus:
"Permit not necessary for certain works:-Notwithstanding anything contained in these rules no building permit shall be necessary for executing the following works which do not otherwise violate any provisions regarding applicable general building requirements, structural stability and fire safety requirements of the rules, namely I) Compound Wall other than that abutting a street.
ii) Providing or removing windows, doors or ventilators without affecting structural stability.
iii) Providing inter-communication doors without affecting structural stability.
iv) Providing or removing partitions other than load bearing walls;
v) Gardening excluding any permanent structures;
vi) White or colour washing.
Vii) Painting
viii) Petty repairs to the building and pitched roof without affecting structural stability.
ix) Plastering and patch works;
x) Interior decoration without any structural alterations;
xi) Changing the location of the building or construction within the plot;
xii) Huts, except huts adjacent to roads mentioned in Section 235P of the Kerala Panchayat Raj Act, 1994.
xii) Single Family residential buildings in category II Village Panchayats under Group A1- Residential occupancy with total built-WP(C).No. 4870 of 2014 4
up area on all floors upto 100 sq.metres, including existing and proposed within the plot, with number of stories limited to two.] [x x x] Provided that the details of works under items (i), (xii), (xiii) and
(xiv) shall be intimated to the Secretary at least ten days before the commencement of such works, with particulars regarding the existing conditions and proposals so as to enable to make an assessment of the nature of the work. If the Secretary has any objection it shall be communicated to the owner within ten days:
Provided further that, in the case of works under item (x), photographs of the existing building before the commencement of works showing all the locations where works are proposed shall also be furnished along with the above intimation to the Secretary:
Provided also that, in the case of works under item (x), photographs of the building after the completion showing all the locations where works are carried out shall be forwarded to the Secretary within ten days after completion of the works:
Provided also that the change of location under item (xi) shall be incorporated in the completion plan."
Therefore, even going by the case of the 2 nd respondent any construction carried out for structural stability is not covered by Rule 10 of the Rules and therefore, necessarily a permit had to be taken for providing pillars.
4. Any how, today when the matter is taken up, learned Counsel for the 2nd respondent submitted that, even if it is treated as a construction carried out by the 2nd respondent, the same is in WP(C).No. 4870 of 2014 5 accordance with the provisions of Rules, 2011 and therefore, the Secretary is vested with ample powers to regularise the construction either invoking the power under Rule 134 of Rules 2011 or as per the provisions of the Kerala Panchayat Building (Regularisation of Unauthorised construction) Rules, 2018, and the petitioner is prepared to submit a suitable application. Learned Counsel for the petitioner also pointed out that consequent to a contempt petition filed by the 2nd respondent before the Tribunal for Local Self Government Institutions, Ext.P10 show cause notice is issued to the petitioner, which is illegal.
5. I have heard respective Counsel across the Bar and perused the pleadings and documents on record.
6. The sole question remains to be considered is whether Ext.P10 show cause notice issued by the Tribunal for Local Self Government Institutions, can be sustained under law. In my considered view, the Tribunal is not vested with any powers, to take contempt action against the petitioner Panchayat, under the Contempt of Courts Act, 1971, nor there is any case for the Tribunal that any criminal contempt is raised by the 2 nd respondent before the Tribunal so as to proceed and refer the matter to this Court as per Section 15 and Rule 8 of the Contempt of Courts Act, 1971 and the Contempt of Courts (High Court of Kerala) Rules under the Contempt WP(C).No. 4870 of 2014 6 of Court Act, 1971. In that view of the matter, I do not think Ext.P10 can be sustained under law. It is quashed.
7. In view of the submission made by the learned Counsel for the 2nd respondent that suitable application will be filed for regularisation of the construction carried out by the 2 nd respondent, this writ petition is disposed of, leaving open the liberty of the 2 nd respondent to submit suitable application before the Secretary of the Panchayat within three weeks from the date of receipt of a copy of this judgment, which if received shall be considered in accordance with law, at the earliest and at any rate, within four months from the date of receipt of the application from the 2 nd respondent and regularise the same if there are no other serious repercussions. Order passed by the Tribunal under challenge is modified to that extent, and I make it clear, if the 2nd respondent is not complying with the directions as above, the petitioner will be at liberty to proceed in accordance with law.
The writ petition is disposed of accordingly.
Sd/ SHAJI P.CHALY JUDGE Jm/ WP(C).No. 4870 of 2014 7 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 P1- TRUE COPY OF THE ORDER NO.B-3-164/12 DATED 26.09.2012 ISSUED BY THE PETITIONER.
EXHIBIT P2 P2- TRUE COPY OF APPEAL NO.816/2012 FILED BY THE SECOND RESPONDENT BEFORE THE LEARNED TRIBUNAL.
EXHIBIT P3 P3- TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE LEARNED TRIBUNAL TO APPOINT AN ADVOCATE COMMISSIONER.
EXHIBIT P4 P4- TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER.
EXHIBIT P5 P5- TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER TO EXT.P4 COMMISSION REPORT.
EXHIBIT P6 P6- TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE LEARNED TRIBUNAL TO APPOINT FRESH COMMISSION.
EXHIBIT P7 P7- TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE LEARNED TRIBUNAL TO EXAMINE THE COMMISSION'S REPORT.
EXHIBIT P8 P8- TRUE COPY OF THE ORDER DATED 05.12.2014 IN APPEAL NO.816/2012 PASSED BY THE TRIBUNAL.
EXHIBIT P9 P9- TRUE COPY OF IA NO.96/2014 IN APPEAL NO.816/2012 FILED BY THE SECOND RESPONDENT BEFORE THE LEARNED TRIBUNAL.
EXHIBIT P10 P10- TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE LEARNED TRIBUNAL TO THE PETITIONER.
EXT.R2 (A) : COPY OF THE BUILDING PERMIT ISSUED BY THE SECRETARY, KUTTICAL GRAMA WP(C).No. 4870 of 2014 8 PANCHAYAT DATED 24.4.2009 WITH PLAN EXT.R2 (B): COPY OF THE ORDER NN B.3/164/2012 DATED 6.6.2012 ISSUED BY THE SECRETARY, KUTTICHAL GRAMA PANCHAYATH EXT.R2 © : COPY OF THE OBJECTION SUBMITTED B K.PARAMESWARAN, TO THE SECRETARY, KUTTICHAL GRAMA PANCHAYAT DATED 15.6.2012