Kerala High Court
Paroth Abdulla vs State Of Kerala on 30 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
WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940
WP(C).No. 24005 of 2018
PETITIONER/S:
1 PAROTH ABDULLA,
AGED 65 YEARS,
S/O.POCKER, PURAMERI VILLAGE,KUNINGAD(P.O.),
KOZHIKODE-673 503.
2 THATTARATH AHAMMED,
S/O.PAKKARAN HAJI, AGED 60 YEARS,EDACHERRY(P.O.),
KOZHIKODE-673 502.
3 RAMLA.M.K.,
MADATHIKKATTIL, D/O.AMMED, AGED 46
YEARS,EDACHERRY(P.O.), KOZHIKODE-673 502.
4 NASEEMA.P.,
D/O.IBRAYI, AGED 48 YEARS, EDACHERRY(P.O.),KOZHIKODE-
673 502.
5 RAMEESA,
D/O.AMMED, AGED 32 YEARS, MARUNNOLI, MEETHALE
AMBIDATTIL,CHOMBALA(P.O.), KOZHIKODE-673 308.
6 MUHAMMED.P.,
S/O.MOOSA HAJI, AGED 52 YEARS, PUNATHIL EDACHERRY,
KOZHIKODE-673 502.
7 ILLIAS.V.P.,
S/O.AMMED, AGED 28 YEARS, EDACHERRY(P.O.), KOZHIKODE-
673 502.
8 IRFAN.V.P.,
S/O.AMMED, AGED 22 YEARS, EDACHERY(P.O.), KOZHIKODE-
673 502.
9 ISHAQUE.V.P.,
S/O.AMMED, EDACHERY(P.O.), KOZHIKODE-673 502.
10 IJJASZ.V.P.,
S/O.AMMED, EDACHERY(P.O.), KOZHIKODE-673 502.
WP(C).No. 24005 of 2018 2
11 IRSHAD.V.P.,
S/O.AMMED, EDACHERY(P.O.), KOZHIKODE-673 502.
BY ADV. SRI.K.PRAVEEN KUMAR
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT
DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF PANCHAYATHS,
DIRECTORATE OF PANCHAYATHS,PUBLIC OFFICE BUILDINGS,
MUSEUM(P.O.),THIRUVANANTHAPURAM-695 033.
3 THE DEPUTY DIRECTOR OF PANCHAYATHS,
CIVIL STATION(P.O.), KOZHIKODE-673 020.
4 THE VILLAGE OFFICER,
ERAMALA, KOZHIKODE-673 501.
5 ERAMALA GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,ORKKATTERI(P.O.),
KOZHIKODE-673 501.
6 THE SECRETARY,
ERAMALA GRAMA PANCHAYATH,ORKKATTERI(P.O.),
KOZHIKODE-673 501.
7 ERAMALA GRAMA PANCHAYATH COUNCIL,
REPRESENTED BY ITS PRESIDENT,
ORKKATTERI(P.O.),KOZHIKODE-673 501.
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
R1 TO R4 BY SRI.PAUL ABRAHAM VAKKANAL,GOVERNMENT
PLEADER
R5 & R6 BY SRI.N.N.SUGUNAPALAN,
SRI. S.SUJIN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 24005 of 2018 3
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:-
"I) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P6 and to quash the original of the same;
II) declare that the petitioner can proceed with the construction of the building as permitted vide Ext.P3 and the respondents 5 to 7 cannot interfere in the matter in the absence of allegation of violation of the provisions of the Kerala Panchayat Act, 1994 and Kerala Panchayat Building Rules, 2011;
III) Writ of mandamus to the respondents 5 to 7 to permit the petitioners to carry out the construction as permitted vide Ext.P3;
IV) to issue such other writ, order or direction as this Honourable Court may deem fit and proper in the circumstance of the case."
2. Material facts for the disposal of the writ petition are as follows:
3. Petitioners are joint owners in possession of 21.24 cents of property comprised in Re.Sy.No.139/3 WP(C).No. 24005 of 2018 4 of Eramala Village, Vadakara Taluk, Kozhikode District. It is also the case of the petitioners that, the land is a converted land many years back and there are sanding trees aged more than 36 years, and it is not included in the data bank published as per the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, as can be seen from Ext.P2. That apart, it is stated that, three sides of the property are surrounded by buildings. Petitioners applied to the Secretary of the 5th respondent Panchayat, seeking issuance of permit to construct a commercial building on 24.11.2015, and after complying with the procedures prescribed such as site inspection and inspection of title deeds and Revenue Records, the 6th respondent on behalf of the 5th respondent on 07.01.2016, as per Ext.P3, issued building permit to the petitioners to construct the building mentioned above. However, petitioners could not start the work immediately on getting Ext.P3 due to financial crisis and they started the work on 20.03.2018, and cut down about 16 coconut trees aged more that 36 years.
4. While so, the officers of the 4 th respondent went to the site and demanded copy of the permit and WP(C).No. 24005 of 2018 5 orally instructed the petitioners to stop the work. Accordingly, petitioners stopped construction. Now, the 6th respondent issued Ext.P6, intimating that records of the permit issued to the petitioners are not found in the office and accordingly, the subject matter is referred to the Deputy Director of the Panchayat and directed the petitioners to wait till such time, an information is received from the Deputy Director.
5. Respondents 5 & 6 have filed a detailed counter affidavit, justifying the stand adopted in the impugned orders. It is also pointed out that, no files are available in the office with respect to the permit issued to the petitioners. However, the fee for the permit is received in the Panchayat office. It is also submitted that, no files relating to the issuance of permit or site inspection conducted and any plans produced by the petitioners are available in the office of the Grama Panchayt.
6. I have heard respective counsel across the Bar and perused the pleadings and the documents on record.
7. The fact discussion made above would make it WP(C).No. 24005 of 2018 6 clear that, the permit fee was secured from the petitioners, however, none of the files evidencing the issuance of permit to the petitioners is available in the Panchayat records. Therefore, the only option available is, petitioners are directed to submit the copies of the plan and the permit secured by the petitioners from the Panchayat and also file suitable application enabling the Secretary of the Panchayat to process the same, identifying whether any illegal construction is carried out by the petitioners, overlooking the Rule of the Kerala Panchayat Building Rules, 2011, within a period of one month from the date of receipt of a copy of this judgment.
8. If the Secretary of the Panchayat is satisfied that, no illegal construction is carried out by the petitioners, overlooking the Rules 2011, the Panchayat will be at liberty to process the application and make necessary entries in the records of the Panchayat. The Panchayat will also be at liberty to identify whether Ext.P3 permit produced by the petitioners in this writ petition is issued from the Panchayat. If any construction is carried out by the petitioners in violation of the WP(C).No. 24005 of 2018 7 Rules, the Panchayat will also be at liberty to issue necessary notice in accordance with law, directing the petitioners to correct the same.
9. It is also submitted by learned counsel for the petitioners that, during the pendency of this writ petition, the validity of the permit has expired and thereupon, petitioners has forwarded an application for renewal of the licence by post and received by the Panchayat on 29.10.2018. If any such application is received by the Panchayat, it shall be considered within the time frame fixed above.
The writ petition is disposed of accordingly.
Sd/-
SHAJI P.CHALY JUDGE uu 31.01.2019 WP(C).No. 24005 of 2018 8 APPENDIX PETITIONER'S/S EXHIBITS:
EXT.P1: TRUE COPY OF THE BASIC TAX RECEIPT DATED 17.10.2017 IN RESPECT OF PROPERTY OF THE PETITIONERS.
EXT.P2: TRUE COPY OF THE CERTIFICATE NO.2152/15 DATED 21.11.2015 ISSUED BY THE 4TH RESPONDENT.
EXT.P3: TRUE COPY OF THE BUILDING PERMIT NO.A4/6762/15 DATED 07.01.2016 ISSUED BY THE 6TH RESPONDENT.
EXT.P4: TRUE COPY OF THE REPRESENTATION DATED 27.04.2018 SENT BY THE 1ST PETTIIONER TO THE 6TH RESPONDENT.
EXT.P5: TRUE COPY OF THE LETTER NO.A4/2430/18 DATED 02.05.2018 SENT BY THE 6TH RESPONDENT TO THE 1ST PETITIONER. EXT.P6: TRUE COPY OF THE LETTER NO.A4/2730/18 DATED 20.06.2018 SENT BY THE 6TH RESPONDENT TO THE PETITIONER.
EXT.P7: TRUE COPY OF THE RECEIPT DATED 07.01.2016 SHOWING PAYMENT FOR ISSUING BUILDING PERMIT TO THE PETITIONERS RESPONDENT'S EXHIBITS:-
EXHIBIT R6(a) TRUE COPY OF THE COMMUNICATION DATED 16.06.2018 SUBMITTED BY THE SECRETARY, ERAMALA GRAMA PANCHAYAT BEFORE THE PANCHAYATH DEPUTY DIRECTOR, KOZHIKODE EXHIBIT R6(b) TRUE COPY OF REPLY DATED 30.06.2018 ISSUED BY THE PANCHAYAT DEPUTY DIRECTOR, KOZHIKODE TO THE SECRETARY, ERAMALA GRAMA PANCHAYATH //TRUE COPY// P.A. TO JUDGE