Kerala High Court
Leenamma Daniel vs State Of Kerala
Author: A.V.Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936
WP(C).No. 2202 of 2013 (A)
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PETITIONER(S):
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1. LEENAMMA DANIEL, AGED 59 YEARS,
PANARA VEEDU, KIZHAKKUMPURAM.P.O., MALAYALAPPUZHA,
PATHANAMTHITTA.
2. VARGHESE DANIEL,
PANARA VEEDU, KIZHAKKUMPURAM.P.O., MALAYALAPPUZHA
PATHANAMTHITTA.
BY ADVS.SRI.M.T.SURESHKUMAR
SMT.SHABARSHA.M.K.B.
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2. DEPUTY SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT ,
(RA) GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3. DEPUTY DIRECTOR OF PANCHAYATH,
PATHANAMTHITTA, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH
PATHANAMTHITTA-689645.
4. MALAYALAPPUZHA GRAMA PANCYHAYATH
REPRESENTED BY ITS SECRETARY, PANCHAYATH KRAYALAYAM
MALAYALAPPUZHA, KOZHENCHERY TALUK,
PATHANAMTHITTA DISTRICT-689666.
5. SECRETARY
MALAYALAPPUZHA GRAMA PANCHAYATH,
PANCHAYATH KARYALALAYAM, MALALAPPUZHA
KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT-689666.
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WP(C).No. 2202 of 2013 (A)
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6. IDICHANDI KUNJACHAN,
S/O. KUNJACHAN, PANARA VEEDU, KIZHAKKUMPURAM.P.O.
MALAYALAPPUZHA, PATHANAMTHITTA-689666.
7. P.E. GEEVARGHESE
PANARA VEEDU, KIZHAKKUMPURAM.P.O., MALAYALAPPUZHA
PATHANAMTHITTA-689666.
R1-R3 BY GOVERNMENT PLEADER SRI.P.V.ELIAS
R4,R5 BY ADVS. SRI.SIBY MATHEW
SRI.PHILIP J.VETTICKATTU
R6 & 7 BY ADV. SRI.C.J.JOY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2014
THE COURT ON 14-08-2014, DELIVERED THE FOLLOWING:
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WP(C).No. 2202 of 2013 (A)
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APPENDIX
PETITIONER(S) EXHIBITS
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EXT.P1TRUE COPY OF THE TAX RECEIPT SETTLEMENT DEED NO. 709 OF 2008 OF
SRO KONNI DATED 16-5-12.
EXT.P2TRUE COPY OF THE REPRESENTATION DATED 12-5-10.
EXT.P3TRUE COPY OF THE REPRESENTATION DATED 4-8-10.
EXT.P4TRUE COPY OF THE COMPLAINT IN O.P. NO. 1790 OF 2010 SUBMITTED
BEFORE THE OMBUDSMAN FOR THE LOCAL SELF GOVERNMENT
THIRUVANANTHAPURAM DATED 21-10-10.
EXT.P5TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER
DATED 23-12-10.
EXT.P6TRUE COPY OF THE COMPLAINT BEFORE THE OMBUDSMAN FOR THE
LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM DATED
9-12-10.
EXT.P7TRUE COPY OF THE ORDER DATED 18-12-10 IN OP. NO. 2046 OF 2010 BY THE
OMBUDSMAN.
EXT.P8A COPY OF THE REPORT OF A5TH RESPONDENT WITH ACOVERING LETTER
OF THE STATE PUBLIC INFORMATION OFFICER DATED 2-11-10.
EXT.P9TRUE COPY OF THE ORDER IN O.P. NO. 1790 OF 2010 DATED 7-1-2011.
EXT.P9(A)TRUE COPY OF THE REPORT DATED 24-10-10.
EXT.P10TRUE COPY OF THE COMMON ORDER DATED 7-7-11 IN OP.NO. 1790 OF
2010 AND O.P. NO. 2046 OF 2010.
EXT.P11 TRUE COPY OF THE GOVERNMENT ORDER DATED 3-12-12.
RESPONDENTS' EXHIBITS
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EXT.R4(A) TRUE COPY OF REPORT DATED 1/10/12 SUBMITTED BY THIS
RESPONDENT TO THE DY.DIRECTOR OF PANCHAYATS.
EXT.R6(A) TRUE COPY OF THE ORDER DATED 20/9/10 ISSUED BY THE SECRETARY
GRAMA PANCHAYAT TO THE RESPONDENT NO.54
EXT.R6(B) TRUE COPY OF THE SETTLEMENT DEED NO.2283/92 OF THE KONNI SRO
EXT.R6(C) TRUE COPY OF THE SETTLEMENT DEED NO.709/2008 OF KONNI SRO
EXECUTED BY THE 2ND PETITIONER
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WP(C).No. 2202 of 2013 (A)
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EXT.R6(D) TRUE COPY OF THE REPRESENTATION DTD.29/9/12 SUBMITTED TO THE
5TH RESPONDENT
EXT.R6(E) TRUE COPY OF THE COMMUNICATION DTD 4/10/12 THE 3RD RESPONDENT
DY.DIRECTOR.
EXT.R6(F) TRUE COPY OF THE REPORT DTD.25/10/12 SUBMITTED TO THE 2ND
RESPONDENT
/ TRUE COPY /
P.S. TO JUDGE
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A.V.RAMAKRISHNA PILLAI, J.
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W.P(C) No.2202 of 2013
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Dated this the 14th day of August, 2014
JUDGMENT
The petitioners are challenging Ext.P11 Government Order regularising the construction of a house by the 6th respondent. The 1st petitioner is the wife of the 2nd petitioner. The 2nd petitioner is the son of the 6th respondent, who is more than 80 years old. The petitioners constructed a house adjacent to the house of the 6th respondent in the land which had been assigned by the 6th respondent to the 2nd petitioner as per a settlement deed.
2. Difference of opinion between the petitioners and the 6th respondent lead to the filing of O.S No.255/2010 by the 6th respondent to set aside the document executed by him. The petitioners filed O.S No.375/2010 for declaration of title before the Munsiff Court, Pathanamthitta. Both the suits are pending. When the 6th respondent later made certain constructions in the property, the WP(C).2202/13 -:2:- petitioners demanded demolition of the same and the 5th respondent issued a provisional order dated 20.09.2010 under Sections 235W and 235X of the Kerala Panchayat Raj Act, read with Section 18(1) (2) of the Kerala Municipality Building Rules. This was challenged by the 6th respondent before the learned Ombudsman for Local Self Government Institutions. The petitioners also filed petition before the learned Ombudsman and a report from the Secretary of the local authority was obtained wherein it was found that there was some violations in the construction.
3. The learned Ombudsman disposed of the original petitions directing the Secretary not to take any steps for demolition, for a period of six weeks and if the 6th respondent wants to approach any legal forum for redressal of this grievance he was permitted to do so. Therefore, the 6th respondent moved the Government for regularisation of the construction and the Government by Ext.P11 order regularised the same and ordered numbering of the building. The same is under challenge in this writ petition. WP(C).2202/13 -:3:-
4. Respondents 1 and 2 filed a counter affidavit. The 3rd respondent filed a separate counter affidavit.
5. In the counter affidavit by the respondents 1 and 2 it is stated that the 6th respondent has submitted a petition before the Government for regularising the construction of his building. On the basis of the report submitted by the Deputy Director of Panchayat, Pathanamthitta, Government had given direction to the 5th respondent Secretary for taking necessary action to regularise the construction made by the 6th respondent in his House No.VII/24 as per Rule 100 of Kerala Municipality Building Rules 1999. In reply to the averments in Paragraph No.2, it is submitted that 60 cents of property comprised in Re.Sy.No.378/18 was initially vested with the 6th respondent and was later transferred to the 2nd petitioner by virtue of Settlement Deed No.2283/92 of SRO, Konni. While executing the above said deed, 6th respondent who is the father of the 2nd petitioner and aged more than 80 years, has reserved the right to reside in the house bearing door No.VII/24 during the life time. WP(C).2202/13 -:4:-
6. It is submitted that in the above said property, the petitioners constructed a new house. For the purpose of the said construction, they demolished a part of existing house which is under the ownership and enjoyment of the 6th respondent. The 6th respondent has filed O.S No.255/10 to set aside the document executed in favour of his children. There is another suit as O.S No.375/10 pending before the Munsiff's Court, Pathanamthitta filed by the petitioner for declaration of title.
7. It is also submitted that the allegation raised in para 7 of the writ petition is incorrect. The petitioners constructed the house bearing door No.VII/24A, after demolishing a portion of existing house bearing door No.VII/24. The remaining portion of the building was repaired by the 6th respondent. Some modifications were made by him to make it suitable for residence. No addition was made on the adjacent side of the new house. The 6th respondent filed O.P No.1790/10 before the learned Ombudsman for Local Self Government Institutions, seeking permission to construct a shade and WP(C).2202/13 -:5:- permit him to live peacefully. Petitioners filed O.P No.2046/10 before the Ombudsman demanding the demolition of the alleged unauthorised construction said to have carried out by the 6th respondent. After considering the above said petitions, the learned Ombudsman delivered a common order on 7.7.2011. In that order considering the life interest of 6th respondent over the land as well as his age and helpless situation, the Ombudsman directed the 5th respondent not to take any steps for demolition for a period of six weeks from the date of order and permitted the 6th respondent to approach any legal forum for redressal of his grievance, if he wanted to do so.
8. The respondent panchayat filed a separate counter affidavit almost on the same lines. Along with the counter, they have produced Ext.R4(a) which was the report submitted by them before the Deputy Director of Panchayat before Ext.P11 order was passed.
9. In the counter affidavit filed by respondents 6 and 7, they have contended that the 5th respondent panchayat had issued a WP(C).2202/13 -:6:- provisional order. According to them, in the year 2007, the 2nd petitioner wanted to demolish and reconstruct the existing house in the property of the 6th respondent. As he refused the same, the 2nd respondent sought permission to renovate the building after demolishing two rooms and utilising the open space on the southern side. The 2nd petitioner also promised the 6th respondent that if he is permitted to do so, the tiled roofing of the remaining portion of the house would be replaced with concrete roof. Therefore, the 6th respondent agreed to the suggestion of the 2nd petitioner. But, in violation of the said assurance, the 2nd petitioner demolished more portions of the old house and attempted to demolish the balance portion also and constructed an entirely new house adjacent to the old house.
10. The respondents further allege that new construction was made in such a manner, allowing the rainwater from its roof to fall on the roof of the old house where the 6th respondent is residing. As a result of this, the laterite walls of the old house started to wither and WP(C).2202/13 -:7:- fall. Therefore, the 6th respondent was constrained to summon the 7th respondent from Delhi and appraise him about the deceit committed by the 2nd petitioner. With the funds given by the 7th respondent, the 6th respondent removed the tile roof and converted it into an R.C. roof. He concreted the same and constructed a hall and sit out attached to the old house. Thereupon, the 2nd petitioner submitted Exts.P2 and P3 complaints to the panchayat authorities against the 7th respondent falsely alleging that the said renovation was done by the 7th respondent. Pursuant to that, 5th respondent came to the spot and told the 6th respondent that prior permission from the panchayat was required to proceed with the construction and he was asked to stop the same. He would further allege that thereafter he submitted a plan and applied for building permit. But, the 5th respondent returned the plan and the application saying that the matter could be settled amicably. It is thereafter, the provisional order was issued by the 6th respondent. According to 6th respondent, no new construction was done by them.
WP(C).2202/13 -:8:-
11. Arguments have been heard.
12. The learned counsel for the petitioners would argue that Ext.P11 order is incompetent as Section 191(3) of the Panchayat Raj Act imposes the restrictions on the power of the State to cancel or suspend resolutions of the Panchayat, if another remedy is available to the petitioner through the Tribunal under Section 276. A perusal of Section 191(3) would make it clear that the power under that section relates to the cancellation or suspension of resolutions or decisions taken by the Panchayat.
13. Exts.P2 and P3 representations were submitted by the 2nd petitioner raising allegations against the 7th respondent. Ext.R6(a) provisional order was issued by the 5th respondent and the same was challenged by the 6th respondent by Ext.P4 complaint before the Ombudsman for Local Self Government Institutions. As a counter blast, the petitioners also filed Exts.P6 complaint before the learned Ombudsman and on the basis of Ext.P8 report submitted by the 5th respondent and Ext.P9 report submitted by the 3rd respondent, the WP(C).2202/13 -:9:- learned Ombudsman disposed of Exts.P4 and P6 vide Ext.P10 common order. In the common order, the learned Ombudsman considered the fact that the 6th respondent was seeking permission to construct a shade having width of two feet and a length of 24 feet. The pendency of O.S No.255/2010 filed by the 6th respondent before the Sub Court, Pathanamthitta to set aside Ext.R6(b) settlement deed executed by him in favour of the 2nd petitioner and O.S No.375/2010 filed by the 1st petitioner before the Munsiff's Court for declaration of her title over the properties covered by Ext.R6(b) and R6(c) were also taken note of. The learned Ombudsman disposed of the petition directing the Secretary not to take any steps for demolition of the construction in question for a period of six weeks and permitting the 6th respondent to take legal remedies as against Ext.R6(a) provisional order. It is with this background, the 6th respondent approached the Government who passed Ext.P11 order.
14. The learned Government Pleader as well as the learned standing counsel for the respondent panchayat would submit that the WP(C).2202/13 -:10:- Government in exercise of powers vested in it issue periodical orders permitting the regularisation of the construction during particular period subject to payment of fine. Section 235AB of the Kerala Panchayat Raj Act is the provision which empowers the Government to regularise the unlawful construction of the building.
15. In Ext.P11, the Government have found that the distance between the basement of two houses is 83 cm and there was no additions where the building faces each other. The construction was effected only to protect the existing building and it was observed that the Rule applicable is the Kerala Municipality Building Rules, 1999. Accordingly, the Secretary of the respondent panchayat was directed to regularise the construction in accordance with Rule 100 of the KMBR, 1999. While issuing Ext.P11, the age and helpless situation of the 6th respondent was also taken into account. As per Circular No.31019/RA1/11/LSG. dated 22.06.2011 issued by the Government, Occupancy Certificates are to be issued on the basis of the rule prevalent as on the date of application of the permit. That is WP(C).2202/13 -:11:- the reason why the Government have ordered that the regularisation shall be subject to Rule 100 of the KMBR, 1999.
16. From the counter affidavit filed by the State as well as the respondent panchayat it can be seen that there was an old building existing in the property belonging to the 6th respondent. The renovation of the said building necessitated when the 2nd petitioner after obtaining assignment in respect of a portion of the property from the 6th respondent, had demolished a portion of the old building and constructed a new house. When the necessary repair works were made in the existing house, the distance between the two houses was reduced to 83 cm as pointed out in the report submitted by the Secretary before the learned Ombudsman. Though it was strenuously argued by the learned counsel for the petitioners that the construction effected by the 6th respondent is a new construction, this Court is not inclined to accept the same in the light of the definite stand taken by the respondent panchayat as well as the State.
WP(C).2202/13 -:12:-
17. Now, admittedly the dispute regarding the title to the portion of the property where the petitioners have constructed a house is now pending before a civil court. The 6th respondent is more than 80 years old. Therefore, this Court is of the definite view that it is unnecessary to quash Ext.P11 and to relegate the 6th respondent to seek the remedy of appeal before the Tribunal for Local Self Government Institutions. Ext.P11 is a considered order and it was passed after getting the report from the local authority.
On a consideration of the entire materials now placed on record, this Court is of the definite view that there is no necessity to interfere with the order impugned. Therefore, the writ petition fails and accordingly, it is dismissed.
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A.V.RAMAKRISHNA PILLAI JUDGE krj /True Copy/ P.A to Judge