Disposed

V.P.Philipose v. Mallapuzhasserry Grama Panchayath

Kerala HC21 Jul 2015WP(C)/1732/2015

Case brief

AI extract

What is this about?

The High Court disposed of the writ petition against a demolition notice by directing the respondent Grama Panchayath to consider the petitioners' pending application for regularization and pass orders after affording an opportunity of being heard.

What did the court decide?

Writ petition disposed of directing the respondent Panchayath to consider the representation and pass orders after affording an opportunity of hearing within three weeks.

V.P.Philipose Vs Mallapuzhasserry Grama Panchayath — Municipal and Town Planning | Kerala HC (2015)

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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 A.V.RAMAKRISHNA PILLAI

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TUESDAY, THE 21ST DAY OF JULY 2015/30TH ASHADHA, 1937

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WP(C).No. 1732 of 2015 (N)

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PETITIONER(S) :

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1. V.P.PHILIPOSE, AGED 91 YEARS, S/O.PHILIPOSE, VALIYAKALAYIL HOUSE, KARTHAVYAM MURI, MALLAPUZHASSERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN- 689 652.

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2. BIJI MATHEW, AGED 43 YEARS,

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S/O.PHILIPOSE MATHAI, VALIYAKALAYIL HOUSE, KARTHAVYAM MURI, MALLAPUZHASSERY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN- 689 652.

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BY ADVS.SRI.N.P.PRAJEESH

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SRI.BIJO THOMAS GEORGE

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RESPONDENT(S):

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1. THE MALLAPUZHASSERRY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, GRAMA PANCHAYATH OFFICE, PUNNAKADU P.O, KOZHENCHERRY, PATHANAMTHITTA DISTRICT, PIN- 689 652.

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

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

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4. THE TAHSILDAR,

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KOZHENCHERRY, PATHANAMTHITTA, PIN- 689 645

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R1 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP

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SRI.MANU SEBASTIAN

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R2 TO R4 BY GOVERNMENT PLEADER SMT.ANITHA RAVEENDRAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 1732 of 2015 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: PHOTOCOPY OF PLAN OF BUILDING OF PETITIONERS. EXHIBIT P2: TRUE PHOTOCOPY OF THE NOTICE DATED 24-12-2014 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2(A): TRUE ENGLISH TRANSLATION OF THE NOTICE DATED 24-12-2014 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3: TRUE PHOTOCOPY OF THE APPLICATION DATED 12-01-2015 SUBMITTED BEFORE THE 1ST RESPONDENT

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RESPONDENT(S)' EXHIBITS :

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------------- EXHIBIT	-------------- R1(A):	---------------- A TRUE COPY OF NOTICE DATED 17.02.2012 ISSUED TO THE 1ST PETITIONER BY THE SECRETARY OF THE 1ST RESPONDENT-PANCHAYATH.
EXHIBIT	R1(B):	A TRUE COPY OF APPLICATION DATED 29.02.2012 SUBMITTED BY THE PETITIONERS.
EXHIBIT	R1(C):	A TRUE COPY OF LETTER NO.M3-1500/2012 DATED 06.07.2012 ISSUED BY THE SECRETARY OF THE 1ST RESPONDENT TO THE DISTRICT TOWN AND COUNTRY PLANNER, PATHANAMTHITTA.
EXHIBIT	R1(D):	A TRUE COPY OF LETER NO.C/689/2012 DATED 16.08.2012 ISSUED BY THE DISTRICT TOWN PLANNER, PATHANAMTHITTA TO THE SECRETARY OF THE 1ST RESPONDENT ALONG WITH THE GOVERNMENT ORDER.
EXHIBIT	R1(E):	A TRUE COPY OF NOTICE NO.M3 1614/13 DATED 25.07.2013.
EXHIBIT	R1(F):	A TRUE COPY OF COMMUNICATION NO.M3-2967/13 DATED 06.11.2014.
EXHIBIT	R1(G):	A TRUE COPY OF COMMUNICATION NO.G1-4910/B(1) DATED 11.12.2014.

//TRUE COPY//

P.A.TO JUDGE.

Msd.

A.V. RAMAKRISHNA PILLAI, J.

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-------------------------------------------------W.P.(C) No. 1732 of 2015

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Dated this the 21^st day of July, 2015

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J U D G M E N T

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

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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.

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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

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W.P.(C) No. 1732 of 2015

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30.03.2012, the 1^st 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.

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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

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W.P.(C) No. 1732 of 2015

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road. The said plot is very near to the office of the 1^st 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 1^st 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 1^st petitioners to furnish reply to the same. The notice was accepted by the 1^st petitioner on 17.02.2012 itself. Even

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W.P.(C) No. 1732 of 2015

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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 1^st respondent. Having noticed that the petitioners are continuing with their construction, the 1^st 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

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W.P.(C) No. 1732 of 2015

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reconstruction of the proposed building is, thus, without a valid permit from the 1^st 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

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W.P.(C) No. 1732 of 2015

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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

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W.P.(C) No. 1732 of 2015

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meantime, a complaint was submitted before the Chief Minister of Kerala in “Sutharya Keralam' programme, which was forwarded to the 2^nd respondent, Deputy Director of Panchayaths. The Secretary submitted a report dated 28.11.2013 to the 2^nd respondent as sought for and the Secretary again submitted Ext.R1(f) report dated 06.11.2014 to the 2^nd respondent through the Senior Superintendent, Performance Audit Unit - I, Pathanamthitta as sought for by the 2^nd respondent as a part of its enquiry, on the basis of a complaint preferred by the petitioners before the Government. The 2^nd 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 2^nd 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

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W.P.(C) No. 1732 of 2015

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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.

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Arguments have been heard.

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When the matter came up for hearing, the

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learned counsel for the petitioners confined his argument to the limited prayer for a direction to the 1^st 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.

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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

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W.P.(C) No. 1732 of 2015

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orders on Ext.P3 representation after affording the petitioners an opportunity of being heard within a time frame.

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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.

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Sd/- A.V. RAMAKRISHNA PILLAI JUDGE

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bka/-

V.P.Philipose v. Mallapuzhasserry Grama Panchayath

Case brief

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V.P.Philipose v. Mallapuzhasserry Grama Panchayath

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