Allowed

P.Yoosef v. Ramanattukara Grama Panchayat

Kerala HC15 Nov 2010WP(C)/4931/2010

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order denying a building permit for additional floors. The court held the Panchayath erred by treating the application as new construction under rules applicable only to the ground floor, failing to account for an existing multi-storeyed structure.

What did the court decide?

Quash Ext.P10; direct respondents to reconsider the application within two months.

P.Yoosef Vs Ramanattukara Grama Panchayat — Property and Title | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN

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MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932

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WP(C).No. 4931 of 2010(N)

PETITIONER(S):

P.YOOSEF, S/O.LATE AVARANKUTTY HAJI, PANDIKASALA HOUSE, RAMANATTUKARA, KOZHIKODE DISTRICT.

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BY ADV. SRI.R.RAMADAS

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RESPONDENT(S):

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THE RAMANATTUKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, RAMANATTUKARA P.O., KOZHIKODE DISTRICT.

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THE SECRETARY, RAMANATTUKARA GRAMA PANCHAYATH, RAMANATTUKARA P.O., KOZHIKODE DISTRICT.

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ADV. SRI.P.B.KRISHNAN FOR R1-2

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SRI.P.M.NEELAKANDAN FOR R1-2

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C)No.4931/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1. TRUE COPY OF THE GOVERNMENT ORDER GO(RT)NO.1073/2001/LSGD DATED 20.03.2001

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EXT.P2. TRUE COPY OF THE GOVERNMENT ORDER G.O(RT)NO.1494/2001/LSGD DATED 31.03.2001

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EXT.P3. TRUE COPY OF BUILDING PERMIT BL.NO.86/2001-2002 DATED 30.03.2002

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EXT.P4. TRUE COPY OF THE PLAN APPROVED BY R2.

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EXT.P5. PHOTOGRAPH SHOWING THE LIE OF THE PETITIONER'S TWO STORIED BUILDING ON THE RIGHT SIDE AND THE THREE STORIED BUILDING ON THE LEFT SIDE ALLOTTED TO THE SHARE OF PETITIONER'S BROTHER.

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EXT.P6. PHOTOGRAPH SHOWING THE LIE OF THE PETITIONER'S TWO STORIED BUILDING AND COMPLETED THREE STORIED BUILDINGS ON EITHER SIDE OF THE PETITIONER'S BUILDING.

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EXT.P7. TRUE COPY OF THE PLAN OF THE PROPOSED ADDITIONAL SECOND FLOOR ABOVE THE FIRST FLOOR OF THE PETITIONER'S BUILDING.

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EXT.P8. TRUE COPY OF THE RECEIPT DATED 04.01.2007 ISSUED BY THE RESPONDENT PANCHAYAT.

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EXT.P9. TRUE COPY OF THE JUDGMENT IN W.P(C)NO.31684/2009 DATED 6.11.2009

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EXT.P10. TRUE COPY OF THE PROCEEDINGS DATED 22.12.2009 BY THE 2ND RESPONDENT.

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/ TRUE COPY /

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P.S.TO JUDGE

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P.N.RAVINDRAN, J.

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W.P(C).No.4931 of 2010

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Dated this the 15^th day of November, 2010

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JUDGMENT

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The petitioner is the owner of a two storeyed building situated in Re.Sy.No.442/9A of Ramanattukara Village in Kozhikode district, which is a portion of a larger building consisting of three floors, which was in existence in the property. Though the remaining portions of the building consist of the ground floor, the first floor and the second floor, the building in the land allotted to the petitioner's share consists only of the ground floor. Though Exts.P5 and P6 series of photographs would show that the first floor has been partly built, it is submitted that the ground floor of the building alone has been numbered. With a view to put up the first floor and second floor of the building, the petitioner submitted Ext.P7 application for building permit. That application was rejected by Ext.P10 order on the ground that the building does not have sufficient set back and open space in terms of the Kerala Municipality Building Rules 1999. Ext.P10 is under challenge in this writ petition. The petitioner contends that as the

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W.P(C).No.4931 of 2010

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ground floor of the building has been put up before the Kerala Municipality Building Rules were made applicable to Ramanattukara Grama Panchayat the Panchayat erred in relying on the Kerala Municipality Building Rules 1999 to reject the application. It is also contended that when portions of the same building consists of the ground floor, the first floor and the second floor, the Panchayat could not have rejected the petitioner's application for putting up the first floor and the second floor.

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The respondents have filed a counter affidavit wherein it is contended that the mere fact that a portion of the building was completed pursuant to Ext.P3 building permit is no reason to hold that the petitioner is entitled to complete the portion of the building allotted to him ignoring the provisions contained in the Kerala Municipality Building Rules, 1999. The petitioner has filed a reply affidavit reiterating the contentions. It is stated with reference to the Kerala Buildings (Regularisation of Unauthorised Construction) Rules, 2010 that as the construction of the first floor of the building was completed prior to 31.12.2008 the petitioner can invoke the provisions of the said rules also.

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I heard Sri.R.Ramadas, learned counsel appearing for the petitioner and Sri.P.B.Krishnan, learned standing counsel

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W.P(C).No.4931 of 2010

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appearing for the respondents. I have also gone through the pleadings and the materials on record. A mere look at Exts.P5 and P6 photographs and the recitals in Ext.P7 application would show that the portion of the building other than the one in the share allotted to the petitioner is a three storeyed building consisting of the ground floor, the first floor and the second floor and that the said the building has been fully built pursuant to Ext.P3 building permit which was valid for a period of three years from 30.3.2002. It is after Ext.P3 building permit was issued that the incomplete portion of the building was allotted to the share of the petitioner in the family partition. In my opinion as the ground floor of the entire building has been completed long before the Kerala Municipality Building Rules were made applicable to Grama Panchayats, the stand taken by the respondents in Ext.P10 cannot be sustained. The respondents have proceeded to consider the petitioner's application for building permit (Ext.P7) as an application for construction of a new building and not as an application for completing the construction of an existing building by putting up the first and second floors for which a permit had already been issued in the year 2008. I am therefore, of the considered opinion that the respondents should reconsider the

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petitioner's application for building permit having regard to the said fact also.

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I accordingly allow the writ petition, quash Ext.P10 and direct the competent authority among respondents to reconsider the petitioner's application for building permit and take an appropriate decision thereon in the light of the Kerala Municipality Building Rules and the provisions contained in the Kerala Buildings (Regularisation of Unauthorised Construction) Rules, 2010. The competent authority among the respondents shall take a revised decision in the matter within two months from the date on which the petitioner produces a certified copy of this judgment before the second respondent.

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P.N.RAVINDRAN, Judge.

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ahg.

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P.N.RAVINDRAN, J.

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W.P(C).No.4931 of 2010

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JUDGMENT

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15^th November, 2010