Kerala High Court
M.G.Alexander vs Bharanikavu Grama Panchayath on 5 October, 2021
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 5TH DAY OF OCTOBER 2021/13TH ASWINA, 1943
WP(C) NO. 13460 OF 2021
PETITIONER:
M.G.ALEXANDER,
PUTHUKULANGARA HOUSE,
BHARANICKAVU SOUTH,
BHARANICKAVU P.O., KAYAMKULAM,
ALAPPUZHA, PIN-690 503.
BY ADVS.
AKHIL RAJ
LIYA ELZA ALEX
RESPONDENTS:
1 BHARANIKAVU GRAMAPANCHAYATH,
REPRESENTED BY ITS SECRETARY,
PALLICKAL P.O.,
ALAPPUZHA, PIN-690 503.
2 VALSALA MADHU, AGED 48 YEARS,
CHEEKKULATHPRATHIBHA,
BHARANICKAVU SOUTH,
BHARANICKAVU P.O., KAYAMKULAM,
ALAPPUZHA-690 503.
3 MADHU, AGED 52 YEARS,
CHEEKKULATHPRATHIBHA,
BHARANICKAVU SOUTH,
BHARANICKAVU P.O., KAYAMKULAM,
ALAPPUZHA-690 503.
BY ADVS.
B.KRISHNA MANI
DHANUJA M.S
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C)No.13460/2021
2
JUDGMENT
Dated this the 5th day of October, 2021 The petitioner, a resident of Bharanikavu Grama Panchayat has filed this writ petition seeking to direct the 1 st respondent Grama Panchayat to consider the complaints and act accordingly in Exts.P4 and P6 within a time limit that may be fixed by this Court.
2. The petitioner states that the 2 nd and 3rd respondents are constructing a Commercial-cum
-Residential building in Bharanikavu Grama Panchayat. The said construction is adjacent to the property of the petitioner. Respondents 2 and 3 have constructed the building violating the conditions of Building Permit in as much as an unauthorised door has been opened on the northern side violating the permit conditions. Further more, a shade has been constructed without providing the requisite aerial distance. The said construction of the shade violates Rule WP(C)No.13460/2021 3 26(10) of the Kerala Panchayat Building Rules.
3. On the basis of the complaints made, the 1 st respondent Panchayat issued Ext.P4 letter to the petitioner stating that the Panchayat has already intimated respondents 2 and 3 not to make any construction violating building rules. However, the Panchayat authorities would not take any further steps. The petitioner therefore sent a lawyer notice to which Ext.P6 reply was given by the Panchayat authorities. In Ext.P6, the Panchayat authorities stated that respondents 2 and 3 have been issued with a letter dated 07.01.2021 requiring them to remove the shade projection made in violation of the building rules.
4. The petitioner also stated that the petitioner had filed O.S.No.21/2021 in the Munsiff's Court, Kayamkulam. A temporary injunction was granted initially. However due to the lock down imposed, the Court was not functioning. Using this extraordinary situation and also influencing the WP(C)No.13460/2021 4 authorities, the 2nd and 3rd respondents restarted the constructions on 11.06.2021. It is in such circumstances that the petitioner has approached this Court filing writ petition, withdrawing the civil suit. Since there is admittedly violation of building rules and permit conditions, the 1 st respondent is liable to be compelled to stop respondents 2 and 3 from further proceeding with the illegal construction and also to demolish the unauthorised constructions already made.
5. Respondents 2 and 3 entered appearance and contested the writ petition. Respondents 2 and 3 stated that they owned only 1.80 Ares of land and a residential cum commercial building is constructed there, strictly following the building rules and permit conditions. Respondents 2 and 3 stated that the petitioner has already approached the Civil Court and obtained interim injunction and subsequently the petitioner did withdraw the suit without reserving any WP(C)No.13460/2021 5 liberty to agitate the issue again before any Forum. In view of the dismissal of the O.S., the petitioner is restrained from agitating the same issue before this Court in this writ petition.
6. Respondents 2 and 3 pointed out Ext.R2(j) Commission Report in which it has been found that there is no building rule violation. The Panchayat Building Rules clearly specifies a mandatory set back of 1 meter or more but below 1.50 meters. The Commission Report makes it clear that the said condition has been complied with.
7. Respondents 2 and 3 stated that the Panchayat issued Ext.P4 notice and a reply was given by them. Respondents 2 and 3 agreed to remove any unauthorised shade construction as and when the Panchayat requires the respondents 2 and 3 to do so. As regards the door constructed departing from the building permit, the respondents 2 and 3 submitted that the slight violation in the WP(C)No.13460/2021 6 construction became highly necessary for them in order to construct a door without which they cannot use the said room at all. The respondents 2 and 3 have filed an application for regularisation of unauthorised construction wherever construction has departed from permit conditions. In view of the above, the writ petition filed is not maintainable and it is liable to be dismissed, contended the learned counsel for the petitioner.
8. I have heard the learned counsel for the petitioner and the learned counsel for respondents 2 and 3. Inspite of service of notice, the 1 st respondent-Grama Panchayat did not appear in the writ petition.
9. The allegation of the petitioner is that respondents 2 and 3 have constructed a door on the northern side of the building violating the sanctioned plan. The said door opens directly towards the bathroom/toilet of the petitioner violating the privacy of the petitioner seriously. WP(C)No.13460/2021 7 Since the said door is unauthorised and one constructed departing from the building permit condition, the 1 st respondent is compellable to force respondents 2 and 3 to close the door on a permanent basis.
10. Similarly since the aerial distance is not maintained when a shade is made on the northern side, the Panchayat is bound to compel respondents 2 and 3 to undo the said construction. The fact that aerial distance is not maintained is evident. Though in the Commission Report submitted in the civil suit, it has been stated that there is no building rule violation and sufficient distance is shown. A perusal of the Commission Report would show that the Commissioner did not consider the violation of aerial distance, perhaps because the petitioner did not insist to take the measurement.
11. Ext.P4 letter would show that aerial distance is not provided as required. Respondents 2 and 3 have also WP(C)No.13460/2021 8 submitted before the Panchayat authority that they are willing to remove the excessive construction in this regard if the Panchayat so directs. From the facts, it is evident that there is a construction violating permit conditions.
12. As regards the door constructed by respondents 2 and 3 on the northern side, going by the pleadings and arguments, the said door is constructed departing from permit conditions and it infringes upon the privacy of the petitioner. Respondents 2 and 3 fairly submitted that they are proposing to make an application for regularisation of the said construction and to revise the plan submitted. As long as the Panchayat does not approve the revised plan and regularise the construction, the illegal construction resorted to by respondents 2 and 3 cannot stand.
13. Though the respondents 2 and 3 vehemently argued that the dismissal of the original suit would disentitle the petitioner from approaching this Court with this writ WP(C)No.13460/2021 9 petition, taking into consideration the facts and circumstances under which the petitioner was forced to withdraw the suit and approach this Court, this Court is not inclined to dismiss the writ petition on that ground alone. Admittedly there is violation of permit conditions and respondents 2 and 3 have stated that they are proposing to file an application for regularisation.
In such circumstances, the writ petition is disposed of directing the 1st respondent to enforce the notice dated 07.01.2021 stated to be issued by the Panchayat to respondents 2 and 3. However, it is made clear that this will be without prejudice to the right if any of the respondents 2 and 3 to get the unauthorised construction regularised, if permissible under law.
Sd/-
N. NAGARESH JUDGE ncd/05.10.2021 WP(C)No.13460/2021 10 APPENDIX OF WP(C) 13460/2021 PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE APPLICATION DATED 23.11.2020.
Exhibit P2 A TRUE COPY OF THE REPLY ISSUED BY THE 1ST RESPONDENT NO A5-400451/1457/20 DATED 28.11.2020.
Exhibit P3 A TRUE COPY OF THE APPLICATION DATED 28.12.2020.
Exhibit P4 A TRUE COPY OF THE REPLY ISSUED BY THE 1ST RESPONDENT, NO. A2.1906/20, DATED 07.01.2021.
Exhibit P5 A TRUE COPY OF THE LEGAL NOTICE DATED 12.01.2021.
Exhibit P6 A TRUE COPY OF THE ISSUED REPLY NO. A5- 363/2021 DATED 02.02.2021 TOWARD THE LEGAL NOTICE.
Exhibit P7 A TRUE COPY OF THE COMPLAINT DATED 05/07/2021.
Exhibit P8 A TRUE COPY OF THE REPLY NO.A4-3866/21 TO THE COMPLAINT DATED 19/07/2021.
Exhibit P9 A TRUE COPY OF THE PERMIT NO.A2- BA(26509)/2020, ISSUED BY THE 1ST RESPONDENT DATED 27/11/2020.
RESPONDENTS' EXHIBITS Exhibit R2(a) TRUE COPY OF THE TAX RECEIPT DATED 19/06/2020 Exhibit R2(b) TRUE COPY OF THE SITE PLAN ALONG WITH THE BUILDING PERMIT ISSUED BY THE SECRETARY, BARANIKAVU GRAMA PANCHAYATH Exhibit R2(c) TRUE COPY OF THE PLAINT IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(d) TRUE COPY OF THE ORDER DATED 15/01/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(e) TRUE COPY OF THE OBJECTION DATED WP(C)No.13460/2021 11 15/07/2021 Exhibit R2(f) TRUE COPY OF THE I.A 2/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(g) TRUE COPY OF THE I.A 3/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMMKULAM Exhibit R2(h) TRUE COPY OF THE OBJECTION DATED 21/06/2021 IN I.A 2/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(i) TRUE COPY OF THE OBJECTION IN 2/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(j) TRUE COPY OF THE REPORT OF THE COMMISSIONER DATED 19/01/2021 Exhibit R2(k) TRUE COPY OF THE I.A 5/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(l) TRUE COPY OF THE OBJECTION IN I.A 5/2021 IN O.S 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM Exhibit R2(m) TRUE COPY OF THE NOTICE DATED 07/01/2021 ISSUED BY THE SECRETARY OF THE PANCHAYATH Exhibit R2(n) TRUE COPY OF THE NOTICE DATED 16/07/2021 ISSUED BY THE SECRETARY OF THE PANCHAYATH Exhibit R2(o) TRUE COPY OF THE REPLY DATED 16/01/2021 Exhibit R2(p) TRUE COPY OF THE REPLY DATED 22/07/2021 Exhibit R2(q) TRUE COPY OF THE JUDGMENT DATED 02/08/2021 IN O.S. 21/2021 BEFORE THE MUNSIFF COURT, KAYAMKULAM