V.P.Philipose Vs. Mallapuzhasserry Grama Panchayath - Court Judgment

SooperKanoon Citationsooperkanoon.com/62307
CourtKerala High Court
Decided OnJul-21-2015
JudgeHonourable Mr. Justice a.V.Ramakrishna Pillai
AppellantV.P.Philipose
RespondentMallapuzhasserry Grama Panchayath
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr. justice a.v.ramakrishna pillai tuesday,the21t day of july201530th ashadha, 1937 wp(c).no. 1732 of 2015 (n) ----------------------------------------- petitioner(s) : ------------------------ 1. v.p.philipose, aged91years, s/o.philipose, valiyakalayil house, karthavyam muri, mallapuzhasserry village, kozhencherry taluk, pathanamthitta district, pin- 689 652.2. biji mathew, aged43years, s/o.philipose mathai, valiyakalayil house, karthavyam muri, mallapuzhassery village, kozhencherry taluk, pathanamthitta district, pin- 689 652. by advs.sri.n.p.prajeesh sri.bijo thomas george respondent(s): ---------------------------- 1. the mallapuzhasserry grama panchayath, represented by its secretary, grama panchayath office, punnakadu p.o, kozhencherry, pathanamthitta district, pin- 689 652.2. the deputy director of panchayath, pathanamthitta, pin- 689 645.3. state of kerala, represented by principal secretary, local self government department, secretariat annex, thiruvananthapuram, pin- 695 001.4. the tahsildar, kozhencherry, pathanamthitta, pin- 689 645 r1 by advs. sri.george varghese(perumpallikuttiyil) sri.a.r.dileep sri.manu sebastian r2 to r4 by government pleader smt.anitha raveendran this writ petition (civil) having been finally heard on2107-2015, the court on the same day delivered the following: msd. wp(c).no. 1732 of 2015 (n) ---------------------------------------- appendix petitioner(s)' exhibits : --------------------------------------- exhibit p1: photocopy of plan of building of petitioners. exhibit p2: true photocopy of the notice dated2412-2014 issued by the1t respondent. exhibit p2(a): true english translation of the notice dated2412-2014 issued by the1t respondent. exhibit p3: true photocopy of the application dated1201-2015 submitted before the1t respondent respondent(s)' exhibits : ------------------------------------------- exhibit r1(a): a true copy of notice dated1702.2012 issued to the1t petitioner by the secretaryof the1t respondent-panchayath. exhibit r1(b): a true copy of application dated2902.2012 submitted by the petitioners. exhibit r1(c): a true copy of letter no.m3-1500/2012 dated0607.2012 issued by the secretary of the1t respondent to the district town and country planner, pathanamthitta. exhibit r1(d): a true copy of leter no.c/689/2012 dated1608.2012 issued by the district town planner, pathanamthitta to the secretaryof the1t respondent along with the government order. exhibit r1(e): a true copy of notice no.m3 1614/13 dated2507.2013. exhibit r1(f): a true copy of communication no.m3-2967/13 dated0611.2014. exhibit r1(g): a true copy of communication no.g1-4910/b(1) dated1112.2014. //true copy// p.a.to judge. msd. a.v. ramakrishna pillai, j.-------------------------------------------------- w.p.(c) no. 1732 of 2015 -------------------------------------------------- dated this the 21st day of july, 2015 judgment the petitioners are aggrieved by ext.p2 notice directing demolition of the building constructed by the petitioners.2. the petitioners allege that they have filed applications in the prescribed format on 10.02.2012 and 17.02.2012 respectively for reconstruction of commercial building nos.iv/333 and 334 of mallappuzhasserry grama panchayath in r.s.no.373/8 of mallpuuzhasserry village. a portion of the old building, which was leased out to a tenant was got vacated as per the judgment in os no.338/2006 of the munsiff's court, pathanamthitta. the secretary intimated the petitioner that the construction can be commenced. the applications were placed before the panchayath committee. the reconstruction was completed within a short time; and subsequently, on w.p.(c) no. 1732 of 2015 ..2.. 30.03.2012, the 1st respondent issued two notices (one dated 17.02.2012 and the other dated 09.03.2012), directing the petitioners to stop the construction. thereafter, the petitioners filed a detailed objection and another application for regularization of the construction, in which it was specifically pointed out the fact that there was a road widening after the commencement of reconstruction and the petitioners also surrendered a portion of their property for road widening. the set back originally provided for the building was reduced because of the road widening; it is alleged. the petitioners are aggrieved by ext.p2 notice directing demolition of the building, which, according to the petitioners, was without considering the petitioners' objection and application for regularization. hence, this writ petition.3. in the statement filed by the respondent panchayath, they have stated that the property of the petitioners is situated in karthavyam junction on the side of kozhancherry and thumpamon road, a major district w.p.(c) no. 1732 of 2015 ..3.. road. the said plot is very near to the office of the 1st respondent panchayath. the petitioners submitted applications for reconstruction of their buildings on 10.02.2012 and 17.02.2012 respectively. the proposed building is a commercial building. after submitting the application, without getting the permit from the 1st respondent, the petitioners started reconstruction, which according to the respondent panchayath, was in a hasty manner violating the provisions of the kerala panchayath building rules, 2011. having noticed that the reconstruction of the commercial building was being made in flagrant violation of the relevant rules, the secretary of the panchayath issued ext.r1(a) notice to the petitioners on 17.02.2012 directing to stop the construction immediately since the construction was being carried out in violation of the kerala panchayath building rules, 2011 and, further, directed the 1st petitioners to furnish reply to the same. the notice was accepted by the 1st petitioner on 17.02.2012 itself. even w.p.(c) no. 1732 of 2015 ..4.. after the receipt of ext.r1(a) notice, the petitioners did not stop the construction as directed therein, instead, they continued the construction hastily showing scant regard thereto; it is contended. while continuing with the construction, the petitioners again on 29.02.2012 submitted ext.r1(b) application before the secretary of the respondent panchayath seeking consideration of their application dated 10.02.2012 for permit and issuance of the same. as per ext.r1(b), as on 29.02.2012, they are still awaiting permit from the 1st respondent. having noticed that the petitioners are continuing with their construction, the 1st respondent further issued a notice dated 09.03.2012 directing the petitioners to stop construction since the same is carried on in violation of the relevant provisions of the kerala panchayath building rules, 2011. in spite of receipt of notice dated 09.03.2012, in brazen violation of the said notice, the petitioners continued with the construction and completed the same within a short time. the w.p.(c) no. 1732 of 2015 ..5.. reconstruction of the proposed building is, thus, without a valid permit from the 1st respondent and in violation of the provisions of the kerala panchayath building rules, 2011 and also in violation of the notices dated 17.02.2012 and 09.03.2012 by the secretary of the panchayath directing to stop the same. it is further stated that the petitioners, after having completed the reconstruction of the commercial building without obtaining permit violating all the relevant rules and disobeying the notices, submitted applications dated 05.07.2011 for assigning number to the building. pursuant to that, the secretary of the panchayath issued ext.r1(c) letter to the district town planner, pathanamthitta seeking legal advice and directions for the fair disposal of the application of numbering the building. on 23.07.2012 also, the secretary of the panchayath issued a similar letter to the district town planner, pathanamthitta, seeking directions for a fair disposal of the applications submitted by the petitioners. the town planner, pathanamthitta, by w.p.(c) no. 1732 of 2015 ..6.. ext.r1(d) letter, intimated the secretary of the panchayath that if the proposed construction is for residential purpose, the same is entitled to get the benefit of go (ms) no.149/2012/lsgd. according to the respondent panchayath, since the proposed construction is for commercial purpose, the petitioners are not entitled to the benefit of the aforesaid g.o. therefore, the secretary issued a notice dated 23.08.2012, demanding the petitioners to demolish the illegal construction and report the same within seven days from the date of receipt of the notice. again, the petitioners submitted an application dated 06.07.2013, requesting for permit to the building constructed by them. on receipt of the said request, the panchayath again issued ext.r1(e) notice no.m3 1614/13 dated 25.07.2013 directing the petitioners to demolish the illegal construction, failing which the panchayath will demolish the same at its expense and will take steps against the petitioners to realize the expenses incurred for demolition. in the w.p.(c) no. 1732 of 2015 ..7.. meantime, a complaint was submitted before the chief minister of kerala in "sutharya keralam' programme, which was forwarded to the 2nd respondent, deputy director of panchayaths. the secretary submitted a report dated 28.11.2013 to the 2nd respondent as sought for and the secretary again submitted ext.r1(f) report dated 06.11.2014 to the 2nd respondent through the senior superintendent, performance audit unit - i, pathanamthitta as sought for by the 2nd respondent as a part of its enquiry, on the basis of a complaint preferred by the petitioners before the government. the 2nd respondent, by ext.r1(g), directed the secretary of the panchayath to take further proceedings pursuant to its notice dated 25.07.2013. it is in compliance with ext.r1 (g) direction from the 2nd respondent that ext.p2 was issued to the petitioners. the challenge against ext.p2 will not stand in the absence of any challenge raised against ext.r1(g); according to the respondent panchayath. it is further stated that the averment that w.p.(c) no. 1732 of 2015 ..8.. the petitioners have surrendered portions of their property for road widening is a false justification of their illegal acts. according to the respondent panchayath, the petitioners have not left the required set back for their illegal construction.4. arguments have been heard.5. when the matter came up for hearing, the learned counsel for the petitioners confined his argument to the limited prayer for a direction to the 1st respondent to consider and pass orders on ext.p3 application after affording him an opportunity of being heard. that also was opposed by the learned counsel for the respondent panchayath on the ground that the petitioners have made periodical constructions violating all the provisions of the existing law. however, as it is open to the respondent panchayath to take a decision on ext.p3 application, this court is of the view that the writ petition can be disposed of directing the respondent panchayath to consider and pass w.p.(c) no. 1732 of 2015 ..9.. orders on ext.p3 representation after affording the petitioners an opportunity of being heard within a time frame. therefore, the writ petition is disposed of directing the respondent panchayath to consider and pass orders on ext.p3 representation after affording the petitioners an opportunity of being heard within a period of three weeks from the date of receipt of a copy of this judgment. till that time, the existing state of affairs shall continue. sd/- a.v. ramakrishna pillai judge bka/-
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY,THE21T DAY OF JULY201530TH ASHADHA, 1937 WP(C).No. 1732 of 2015 (N) ----------------------------------------- PETITIONER(S) : ------------------------ 1. V.P.PHILIPOSE, AGED91YEARS, S/O.PHILIPOSE, VALIYAKALAYIL HOUSE, KARTHAVYAM MURI, MALLAPUZHASSERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN- 689 652.

2. BIJI MATHEW, AGED43YEARS, S/O.PHILIPOSE MATHAI, VALIYAKALAYIL HOUSE, KARTHAVYAM MURI, MALLAPUZHASSERY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN- 689 652. BY ADVS.SRI.N.P.PRAJEESH SRI.BIJO THOMAS GEORGE RESPONDENT(S): ---------------------------- 1. THE MALLAPUZHASSERRY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, GRAMA PANCHAYATH OFFICE, PUNNAKADU P.O, KOZHENCHERRY, PATHANAMTHITTA DISTRICT, PIN- 689 652.

2. THE DEPUTY DIRECTOR OF PANCHAYATH, PATHANAMTHITTA, PIN- 689 645.

3. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT ANNEX, THIRUVANANTHAPURAM, PIN- 695 001.

4. THE TAHSILDAR, KOZHENCHERRY, PATHANAMTHITTA, PIN- 689 645 R1 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN R2 TO R4 BY GOVERNMENT PLEADER SMT.ANITHA RAVEENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2107-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Msd. WP(C).No. 1732 of 2015 (N) ---------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS : --------------------------------------- EXHIBIT P1: PHOTOCOPY OF PLAN OF BUILDING OF PETITIONERS. EXHIBIT P2: TRUE PHOTOCOPY OF THE NOTICE DATED2412-2014 ISSUED BY THE1T RESPONDENT. EXHIBIT P2(A): TRUE ENGLISH TRANSLATION OF THE NOTICE DATED2412-2014 ISSUED BY THE1T RESPONDENT. EXHIBIT P3: TRUE PHOTOCOPY OF THE APPLICATION DATED1201-2015 SUBMITTED BEFORE THE1T RESPONDENT RESPONDENT(S)' EXHIBITS : ------------------------------------------- EXHIBIT R1(A): A TRUE COPY OF NOTICE DATED1702.2012 ISSUED TO THE1T PETITIONER BY THE SECRETARYOF THE1T RESPONDENT-PANCHAYATH. EXHIBIT R1(B): A TRUE COPY OF APPLICATION DATED2902.2012 SUBMITTED BY THE PETITIONERS. EXHIBIT R1(C): A TRUE COPY OF LETTER NO.M3-1500/2012 DATED0607.2012 ISSUED BY THE SECRETARY OF THE1T RESPONDENT TO THE DISTRICT TOWN AND COUNTRY PLANNER, PATHANAMTHITTA. EXHIBIT R1(D): A TRUE COPY OF LETER NO.C/689/2012 DATED1608.2012 ISSUED BY THE DISTRICT TOWN PLANNER, PATHANAMTHITTA TO THE SECRETARYOF THE1T RESPONDENT ALONG WITH THE GOVERNMENT ORDER

. EXHIBIT R1(E): A TRUE COPY OF NOTICE NO.M3 1614/13 DATED2507.2013. EXHIBIT R1(F): A TRUE COPY OF COMMUNICATION NO.M3-2967/13 DATED0611.2014. EXHIBIT R1(G): A TRUE COPY OF COMMUNICATION NO.G1-4910/B(1) DATED1112.2014. //TRUE COPY// P.A.TO JUDGE. Msd. A.V. RAMAKRISHNA PILLAI, J.

-------------------------------------------------- W.P.(C) No. 1732 of 2015 -------------------------------------------------- Dated this the 21st day of July, 2015

JUDGMENT

The petitioners are aggrieved by Ext.P2 notice directing demolition of the building constructed by the petitioners.

2. The petitioners allege that they have filed applications in the prescribed format on 10.02.2012 and 17.02.2012 respectively for reconstruction of commercial building nos.IV/333 and 334 of Mallappuzhasserry Grama Panchayath in R.S.No.373/8 of Mallpuuzhasserry Village. A portion of the old building, which was leased out to a tenant was got vacated as per the judgment in OS No.338/2006 of the Munsiff's Court, Pathanamthitta. The Secretary intimated the petitioner that the construction can be commenced. The applications were placed before the panchayath committee. The reconstruction was completed within a short time; and subsequently, on W.P.(C) No. 1732 of 2015 ..2.. 30.03.2012, the 1st respondent issued two notices (one dated 17.02.2012 and the other dated 09.03.2012), directing the petitioners to stop the construction. Thereafter, the petitioners filed a detailed objection and another application for regularization of the construction, in which it was specifically pointed out the fact that there was a road widening after the commencement of reconstruction and the petitioners also surrendered a portion of their property for road widening. The set back originally provided for the building was reduced because of the road widening; it is alleged. The petitioners are aggrieved by Ext.P2 notice directing demolition of the building, which, according to the petitioners, was without considering the petitioners' objection and application for regularization. Hence, this writ petition.

3. In the statement filed by the respondent panchayath, they have stated that the property of the petitioners is situated in Karthavyam Junction on the side of Kozhancherry and Thumpamon Road, a major district W.P.(C) No. 1732 of 2015 ..3.. road. The said plot is very near to the office of the 1st respondent panchayath. The petitioners submitted applications for reconstruction of their buildings on 10.02.2012 and 17.02.2012 respectively. The proposed building is a commercial building. After submitting the application, without getting the permit from the 1st respondent, the petitioners started reconstruction, which according to the respondent panchayath, was in a hasty manner violating the provisions of the Kerala Panchayath Building Rules, 2011. Having noticed that the reconstruction of the commercial building was being made in flagrant violation of the relevant rules, the Secretary of the panchayath issued Ext.R1(a) notice to the petitioners on 17.02.2012 directing to stop the construction immediately since the construction was being carried out in violation of the Kerala Panchayath Building Rules, 2011 and, further, directed the 1st petitioners to furnish reply to the same. The notice was accepted by the 1st petitioner on 17.02.2012 itself. Even W.P.(C) No. 1732 of 2015 ..4.. after the receipt of Ext.R1(a) notice, the petitioners did not stop the construction as directed therein, instead, they continued the construction hastily showing scant regard thereto; it is contended. While continuing with the construction, the petitioners again on 29.02.2012 submitted Ext.R1(b) application before the Secretary of the respondent panchayath seeking consideration of their application dated 10.02.2012 for permit and issuance of the same. As per Ext.R1(b), as on 29.02.2012, they are still awaiting permit from the 1st respondent. Having noticed that the petitioners are continuing with their construction, the 1st respondent further issued a notice dated 09.03.2012 directing the petitioners to stop construction since the same is carried on in violation of the relevant provisions of the Kerala Panchayath Building Rules, 2011. In spite of receipt of notice dated 09.03.2012, in brazen violation of the said notice, the petitioners continued with the construction and completed the same within a short time. The W.P.(C) No. 1732 of 2015 ..5.. reconstruction of the proposed building is, thus, without a valid permit from the 1st respondent and in violation of the provisions of the Kerala Panchayath Building Rules, 2011 and also in violation of the notices dated 17.02.2012 and 09.03.2012 by the Secretary of the panchayath directing to stop the same. It is further stated that the petitioners, after having completed the reconstruction of the commercial building without obtaining permit violating all the relevant rules and disobeying the notices, submitted applications dated 05.07.2011 for assigning number to the building. Pursuant to that, the Secretary of the panchayath issued Ext.R1(c) letter to the District Town Planner, Pathanamthitta seeking legal advice and directions for the fair disposal of the application of numbering the building. On 23.07.2012 also, the Secretary of the panchayath issued a similar letter to the District Town Planner, Pathanamthitta, seeking directions for a fair disposal of the applications submitted by the petitioners. The Town Planner, Pathanamthitta, by W.P.(C) No. 1732 of 2015 ..6.. Ext.R1(d) letter, intimated the Secretary of the panchayath that if the proposed construction is for residential purpose, the same is entitled to get the benefit of GO (MS) No.149/2012/LSGD. According to the respondent panchayath, since the proposed construction is for commercial purpose, the petitioners are not entitled to the benefit of the aforesaid G.O. Therefore, the Secretary issued a notice dated 23.08.2012, demanding the petitioners to demolish the illegal construction and report the same within seven days from the date of receipt of the notice. Again, the petitioners submitted an application dated 06.07.2013, requesting for permit to the building constructed by them. On receipt of the said request, the panchayath again issued Ext.R1(e) notice No.M3 1614/13 dated 25.07.2013 directing the petitioners to demolish the illegal construction, failing which the panchayath will demolish the same at its expense and will take steps against the petitioners to realize the expenses incurred for demolition. In the W.P.(C) No. 1732 of 2015 ..7.. meantime, a complaint was submitted before the Chief Minister of Kerala in "Sutharya Keralam' programme, which was forwarded to the 2nd respondent, Deputy Director of Panchayaths. The Secretary submitted a report dated 28.11.2013 to the 2nd respondent as sought for and the Secretary again submitted Ext.R1(f) report dated 06.11.2014 to the 2nd respondent through the Senior Superintendent, Performance Audit Unit - I, Pathanamthitta as sought for by the 2nd respondent as a part of its enquiry, on the basis of a complaint preferred by the petitioners before the Government. The 2nd respondent, by Ext.R1(g), directed the Secretary of the panchayath to take further proceedings pursuant to its notice dated 25.07.2013. It is in compliance with Ext.R1 (g) direction from the 2nd respondent that Ext.P2 was issued to the petitioners. The challenge against Ext.P2 will not stand in the absence of any challenge raised against Ext.R1(g); according to the respondent panchayath. It is further stated that the averment that W.P.(C) No. 1732 of 2015 ..8.. the petitioners have surrendered portions of their property for road widening is a false justification of their illegal acts. According to the respondent panchayath, the petitioners have not left the required set back for their illegal construction.

4. Arguments have been heard.

5. When the matter came up for hearing, the learned counsel for the petitioners confined his argument to the limited prayer for a direction to the 1st respondent to consider and pass orders on Ext.P3 application after affording him an opportunity of being heard. That also was opposed by the learned counsel for the respondent panchayath on the ground that the petitioners have made periodical constructions violating all the provisions of the existing law. However, as it is open to the respondent panchayath to take a decision on Ext.P3 application, this Court is of the view that the writ petition can be disposed of directing the respondent panchayath to consider and pass W.P.(C) No. 1732 of 2015 ..9.. orders on Ext.P3 representation after affording the petitioners an opportunity of being heard within a time frame. Therefore, the writ petition is disposed of directing the respondent panchayath to consider and pass orders on Ext.P3 representation after affording the petitioners an opportunity of being heard within a period of three weeks from the date of receipt of a copy of this judgment. Till that time, the existing state of affairs shall continue. Sd/- A.V. RAMAKRISHNA PILLAI JUDGE bka/-