Partly allowed

Thankamani v. the Tribunal for Local Self Govt.

Kerala HC17 Oct 2016WP(C)/22602/2006

Case brief

AI extract

What is this about?

The High Court upheld the Tribunal's finding that the petitioner's wall construction violated statutory distance restrictions. However, recognizing the pre-Act existence of adjacent buildings, the Court directed the Panchayat to consider regularization subject to conditions regarding alignment and penalties.

What did the court decide?

Regularization of construction allowed subject to front wall alignment with adjacent buildings and undertaking regarding future road widening damages; penalties applicable.

Thankamani Vs the Tribunal for Local Self Govt. — Land Acquisition | Kerala HC (2016)

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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 K.VINOD CHANDRAN

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MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938

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WP(C).No. 22602 of 2006 (N)

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PETITIONER :

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THANKAMANI, W/O.KUMARAN, KARAMAKKAL HOUSE, VENKITANGU VILLAGE, TRICHUR DT.

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BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN

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RESPONDENT(S):

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1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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2. SECRETARY, VENKITANGU GRAMA PANCHAYATH, P.O.VENKITANGU, TRICHUR-680 510.

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*ADDL.R3 IMPLEADED

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*ADDL.R3: E.I.ABDUL JABBAR, S/O. IBRAHIM, ERACHAMVEETTIL HOUSE, VENKITANGU VILLAGE, TRICHUR DT.

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*ADDL.R3 IMPLEADED AS PER ORDER DATED 25/8/06 IN IA.NO.12068/2006.

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R1 BY GOVERNMENT PLEADER SMT. VINEETHA HARIRAJ

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R2 BY ADVS. SRI.P.C.CHACKO(PARATHANAM) SRI.MANURAJ. K.J SRI.L.RAJESH NARAYAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.22602/2006

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1(A) COPY OF THE ASSESSMENT REGISTER OF BUILDING TAX FOR 1967-72 ISSUED BY THE 2ND RESPONDENT.

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P1(B) COPY OF THE ASSESSMENT REGISTER OF BUILDING TAX FOR 1972-73-1976-77 ISSUED BY THE 2ND RESPONDENT.

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P1(C) COPY OF THE ASSESSMENT REGISTER OF BUILDING TAX FOR 1977-78-1981-82 ISSUED BY THE 2ND RESPONDENT

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P1(D) COPY OF THE ASSESSMENT REGISTER OF BUILDING TAX FOR 1982-87 ISSUED BY THE 2ND RESPONDENT

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P1(E) COPY OF THE ASSESSMENT REGISTER OF BUILDING TAX FOR 1987-88-1991-92 ISSUED BY THE 2ND RESPONDENT

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P1(F) COPY OF THE ASSESSMENT REGISTER OF BUILDING TAX FOR 1992-93-1996-97 ISSUED BY THE 2ND RESPONDENT

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P1(G) COPY OF THE ASSESSMENT REGISTER OF BUILDING TAX FOR 1997-2002 ISSUED BY THE 2ND RESPONDENT

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P2(A) COPY OF THE PHOTOGRAPH.

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P2(B) COPY OF THE PHOTOGRAPH

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P3(A) COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 25/08/1998

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P3(B) COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 25/08/1988

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P3(C) COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 25/11/1999

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P3(D) COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 03/08/2000

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P4 COPY OF THE FIR REGISTERED BY THE PAVARATTY POLICE STATION DATED 03/10/2000

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P5 COPY OF THE SCENE MAHASSAR REGISTERED BY THE HEAD CONSTABLE, PAVARATTY POLICE STATION, DATED 03/10/2000

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P6 COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 06/10/2000

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P7 COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 09/10/2000

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P8 COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 30/11/2000

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2/-

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-2-

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WP(C).NO.22602/2006

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P9 COPY OF THE ORDER ISSUED BY THE PANCHAYATH COMMITTEE OF THE VENKITANGU GRAMA PANCHAYATH DATED 20/02/2001

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P10 COPY OF THE ORDER IN CMP.NO.12333/2001 IN OP.NO.7533/2001, DATED 30/11/2000

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P11 COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 03/08/2006

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P12 COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 20/10/2005.

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RESPONDENT'S EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K. VINOD CHANDRAN, J.

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W.P.(C) No. 22602 of 2006 (N)

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Dated: 17^th October, 2016

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J U D G M E N T

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The petitioner in the above writ petition challenges the order of the Tribunal at Ext.P12.

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The issue agitated is with respect to the building owned by the petitioner, in an extent of ¾ cents comprised in Survey No.30/11 of Venkitangu Village. It is submitted that there was a two storeyed building in existence, even at the time of purchase of the property by the petitioner. Exts.P1(a) to P1(f) are the assessment made of the building at the hands of the prior owner and Ext.P1(g) is the assessment made at the hands of the petitioner after her purchase. The petitioner's building is situated on the west of the Guruvayoor-Kanjani Road and faces east. There are

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W.P.(C) No. 22602/2006

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two buildings on the southern and northern sides of the petitioner's building, one of which belongs to the petitioner's son and the other to one Brahmadas.

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The petitioner contends that the petitioner had intended some renovation of the building and modification to the internal arrangement of rooms, providing for access into the supermarket in the adjacent building owned by the petitioner's son. It is also submitted that there was in existence a dispute with Brahmadas, who owned the building on the northern side of the petitioner's building. A suit was filed by the said Brahmadas against the petitioner's predecessor-in-interest and later on, making the petitioner a party, which stood dismissed throughout, in Appeal and Second Appeal. While so, presumably motivated by the enmity existing, the said Brahmadas is said to have demolished the front wall of the petitioner's

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W.P.(C) No. 22602/2006

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building.

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Later, when the petitioner attempted to construct the said wall, there was a suit filed by Brahmadas against such construction being carried on and the Panchayat also proceeded against the petitioner for unauthorised construction, especially since it violated Section 220(b) of the Kerala Panchayat Raj Act, 1994 ('K.P.R. Act' for short). The front wall itself was alleged to be constructed within the prohibited distance of three meters. The petitioner obtained a stay of the order issued by the Panchayat, as is evidenced by Ext.P10 and also approached the Appellate and Revisional Authorities as it existed then; before the constitution of the Tribunal for Local Self Government Institutions.

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After the constitution of the Tribunal, the Government transmitted the files to the Tribunal, which

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W.P.(C) No. 22602/2006

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decided the matter as per Ext.P12. The Tribunal eventually found the petitioner's construction to be a new one and hence confirmed the order of the Secretary, which is challenged herein.

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Looking at the Tribunal's order, this Court is not inclined to interfere with the same, since, the order passed is perfectly in order. The Tribunal found that even accepting the contention of the petitioner; that the front wall was demolished by the neighbouring property owner, a new construction could have been made only in compliance of Section 220(b) of the K.P.R. Act. The mere fact of a demolition having been effected with criminal force would not enable the petitioner to reconstruct a building, which existed in the property, violating Section 220(b) of the K.P.R. Act. The petitioner could definitely have taken proceedings against the

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W.P.(C) No. 22602/2006

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persons who were responsible for such criminal acts, which the petitioner has done, as is evidenced from Ext.P4 F.I.R. The petitioner could also have filed a suit for damages against such miscreants, but, could not have carried on the construction in violation of the statutory prescription.

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In such circumstance, this Court would not interfere with Ext.P12 order. However, the fact remains that there are two existing buildings on both sides of the petitioner's building, which were also existing even prior to the coming into force of the K.P.R. Act. There was also in existence a building in the petitioner's 4 cents of property, which too existed prior to the coming into force of the K.P.R. Act. In such circumstance, though the petitioner ought to have maintained the distance rule, what could now be

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W.P.(C) No. 22602/2006

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ensured is that the petitioner's construction is in line with the buildings on both sides of the petitioner's property (on the north and south); in which event the petitioner would be entitled to file an application for regularisation, also with the further condition of an undertaking that in the event of any widening of road attempted by the State or its instrumentalities, then the petitioner would not claim any damages for the improvements with respect to the building newly constructed by the petitioner.

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The petitioner shall file an application for regularisation along with the aforesaid undertaking before the Secretary, who shall inspect the property and ensure that the front portion of the petitioner's building is in line with the buildings on the north and south; in which event, the regularisation application

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W.P.(C) No. 22602/2006

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shall be considered and allowed; on such conditions of penalty as permitted by law. If the construction is found to be not in line with the buildings on the north and south, then, the petitioner would be entitled to make such reconstruction, ensuring the safety of the building and making the front wall in line with the buildings on the north and south, upon which also a regularisation application shall be filed, which shall be considered by the Secretary. The petitioner shall also be liable to any tax on the building as also the penalty that could be imposed on an unauthorised construction for the intervening period, from the date of completion of construction, which the Secretary would have to be convinced on materials produced by the petitioner. In such circumstance, though the order of the Tribunal is not interfered with, on grounds of equity the above directions shall be complied with by the Panchayat.

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W.P.(C) No. 22602/2006

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The writ petition is dismissed with the above

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reservation. No Costs.

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Sd/-

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K.VINOD CHANDRAN, JUDGE

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jjj 17/10/16

Thankamani v. the Tribunal for Local Self Govt.

Case brief

What is this about?

What did the court decide?

Thankamani v. the Tribunal for Local Self Govt.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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