Allowed

Karthikeyan v. the Secretary

Kerala HC14 Nov 2018WP(C)/3733/2017

Case brief

AI extract

What is this about?

Writ petition filed to quash Panchayat notices directing demolition of a small unauthorized residential building. Court held that discretionary action under Panchayat Building Rules allowed regularization via fines. Ordered Recorder regularize construction upon payment of Rs.5,000 within 30 days.

What did the court decide?

Writ petition allowed; unauthorized construction regularized upon payment of fine of Rs. 5,000 within one month.

Karthikeyan Vs the Secretary — Landlord and Tenant | Kerala HC (2018)

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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 SHAJI P.CHALY

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WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940

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WP(C).No. 3733 of 2017

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PETITIONER/S:

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KARTHIKEYAN, AGED 50 YEARS, S/O KRISHNAN, KAITHAVALAPIL HOUSE, CHERAI, ERNAKULAM- 683 514.

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BY ADV. SRI.BINDU SREEKUMAR

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RESPONDENT/S:

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1 THE SECRETARY, PALLIPPURAM GRAMA PANCHAYAT, CHERAI P.O., ERNAKULAM- 683 514.

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2 SUPRAN, AGED 60 YEARS, KALATHIPARAMBIL HOUSE, CHERAI, PALLIPPURAM, ERNAKULAM BY ADVS. R1 SRI. T.A. SHAJI (SR.) SRI.ATHUL SHAJI SMT.NAMITHA JYOTHISH R2 SMT.BINDUMOL JOSEPH SRI.B.S.SYAMANTHAK

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.3733 of 2017

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JUDGMENT

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This writ petition is filed by the petitioner

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seeking to quash Exts.P3 and P4 communications issued by the 1^st respondent, i.e., the Secretary of the

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Pallippuram Grama Panchayat, Cherai, dated 19.10.2016 and 25.01.2017, whereby petitioner was directed to remove the unauthorized construction within 15 days, failing which, coercive action will be taken to demolish the same and petitioner would be liable to pay the cost, and also directing the petitioner to produce any documents with respect to any pending proceedings before the High Court within 7 days, failing which, Panchayat will take action to demolish the unauthorized construction, respectively. Basic material facts for the disposal of the writ petition are as follows:

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Petitioner is the owner of an extent of 5 cents of property situated in Survey No.297/2 within the limits of the Pallippuram Grama Panchayat. In the year 2013, petitioner constructed a residential building having an area of 400 sq.ft. by complying with all the procedural formalities put forth by the 1^st respondent. It is apparent that a complaint was filed before the Ombudsman for Local Self Government Institutions, without

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W.P.(C) No.3733 of 2017

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impleading the petitioner in the party array and the Ombudsman has passed Ext.P2 order directing the Panchayat to take into account the circumstances pointed out in the order, and take appropriate decision within three months. It is on account of the directions contained in Ext.P2, Exts.P3 and P4 notices are issued to the petitioner. Petitioner also seeks to restrain the 1^st respondent from implementing Ext.P2 order.

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A detailed counter affidavit is filed by the 2^nd

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respondent, who is apparently the complainant before the Ombudsman, justifying the stand adopted by the Ombudsman and the Panchayat, in view of the illegal construction carried out by the petitioner. According to the 2^nd respondent, on the basis of the directions of Ombudsman, Panchayat has issued Ext.R2(a) notice under Sec.235W(1) and a provisional order under Sec.235W(2) of the Kerala Panchayat Raj Act, 1994. Thereafter only, as per Ext.P1 order, directed the petitioner to demolish the construction by passing a final order under Sec.235W(3)

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of Act, 1994. Therefore, according to the 2^nd

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respondent, there is no manner of legal infirmity in the decision taken by the Panchayat and the petitioner was provided with sufficient opportunity. However, petitioner has not cared to appear before the Secretary

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W.P.(C) No.3733 of 2017

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of the Panchayat and prosecute the proceedings.

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I have heard learned counsel for the petitioner, learned Standing Counsel for the Panchayat and also the

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learned counsel appearing for the 2^nd respondent.

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Perused the pleadings and the documents on record.

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The fact discussion made above would make it clear that, even though petitioner was not a party before the Ombudsman, Ombudsman has not taken any decision with respect to the alleged illegalities pointed out by he 2^nd

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respondent. However, Ombudsman has taken note of the

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substance of the complaint submitted by the 2^nd

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respondent and directed the Secretary of the Panchayat to take a decision within three months in accordance with law. It was accordingly that Panchayat has initiated action under Sec.235W of Act, 1994, which culminated in Ext.P1 under Sec.235W(3). Therefore, the contention advanced by learned counsel for the petitioner that the orders passed by the Secretary of the Panchayat is arbitrary and illegal, cannot be sustained.

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It is also evident that Panchayat has issued Exts.P3 and P4 notices also to the petitioner subsequent to Ext.P1, which is dated 23.09.2014. However, in spite of all these earnest efforts, petitioner has not taken any steps in accordance with the directions contained in

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W.P.(C) No.3733 of 2017

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Ext.P1 final order. However, it has come out in evidence

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that the illegal construction alleged to be carried out by the petitioner is on account of construction of a stair-case without sufficient set back, as provided under Rule 133 of the Kerala Panchayat Building Rules. It is

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also evident that the residential building is a small one with 400 sq.ft. and therefore, in my considered view, it would suffice if a penalty is imposed on the petitioner in order to regularize the unauthorized construction. I say so, because it is clear from the pleadings put forth by the petitioner that he is belonging to the lowest strata of the society. Therefore, I impose a fine of Rs.5,000/- (Rupees five thousand only) for the

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unauthorized construction carried out by the petitioner. If the petitioner pays the aforesaid amount within a month from the date of receipt of a copy of this judgment, the construction carried out by the petitioner shall be regularized and the orders passed against the petitioner will stand quashed.

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The writ petition is disposed of accordingly.

Sd/-

SHAJI P.CHALY

JUDGE

St/-

W.P.(C) No.3733 of 2017

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBITP1 TRUE COPY OF HE ORDER FOR DEMOLISHING THE UNAUTHORIZED CONSTRUCTION DATED 23-09-2014. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 19-08-2016 EXIBIT P3 TRUE COPY OF THE NOTICE DATED 19-10-2016 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 25-01-2017.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R2(A)

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A TRUE COPY OF THE PROVISIONAL ORDER ISSUED BY THE SECRETARY OF THE 1ST RESPONDENT.

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

Karthikeyan v. the Secretary

Case brief

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Karthikeyan v. the Secretary

Case brief

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